Whitney v. State

Cite as 2017 Ark. App. 341

ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-16-964

Opinion Delivered: May 24, 2017
JAMES EDWARD WHITNEY
APPEAL FROM THE
APPELLANT WASHINGTON
COUNTY CIRCUIT COURT
V. [NO. 72CR-13-912]

STATE OF ARKANSAS HONORABLE MARK LINDSAY,
APPELLEE JUDGE
AFFIRMED

MIKE MURPHY, Judge

A Washington County jury convicted appellant James Whitney of eighteen counts

of possession of child pornography in violation of Arkansas Code Annotated section 5-27-

602 (Repl. 2013), and he was sentenced to consecutive thirty-year sentences on each

conviction. On appeal, Whitney contends that sufficient evidence did not support his

convictions and that transcripts of conversations occurring in a Yahoo chat room were

improperly admitted at trial. We affirm.

The charges came about when Whitney and Teena, Whitney’s now ex-wife, got in

a dispute requiring sheriff’s deputies to be called. This incident led to the breakup of their

marriage. Three days later, Teena called the deputies back to her house because she thought

she saw Whitney driving by despite having a protection order in place. During this visit,

Teena explained to the deputies that she saw child pornography on Whitney’s computer
Cite as 2017 Ark. App. 341

and wanted the deputies to take his laptop. Five days later, Teena brought several other

computers that she found in the house while packing to move out because she was

concerned there might be child pornography on them as well. The state crime lab found

more than twenty photographs of underaged nude females and Yahoo chat logs where

Whitney had been conversing with other people over the Internet concerning sexual

matters and requesting and offering pictures. These chats were graphic descriptions of

Whitney sexually abusing his minor daughters with the cooperation of their mother. 1 The

transcripts also established that Whitney was seeking to recreate the mother-daughter

experience with a willing female and her underaged daughter.

Teena testified first. She explained that the divorce was final and that nobody else

had lived with them who would have had access to the computers since 2010. She also

described signing a consent form to have the computers searched.

Adam Wilson, the digital-evidence technician from the state crime lab, then testified

that he had analyzed the computers. He explained how he had recovered the images and

chats and how he had located Whitney’s profile and username associated with the hard

drive; and he testified to the date range of the images and chats he had recovered.

Yvette Schrock, the detective in the child-crimes division, testified that she was

assigned to the computer portion of the investigation. She explained that she had Teena

sign a consent form to have the computers searched. Schrock testified that it appeared

1
According to the chat transcript, Whitney claimed that his minor daughters and
their mother had passed away due to a car accident several years after the alleged abuse of
his daughters had begun.

2
Cite as 2017 Ark. App. 341

Whitney’s intent was to receive and send pornographic images. She described the images

found as pictures of “prepubescent females” who appeared to be under the age of eighteen.

The first point on appeal is that there was insufficient evidence to support Whitney’s

convictions for distributing, possessing, or viewing matter depicting sexually explicit

conduct involving a child. 2 On appeal, a motion for directed verdict is treated as a challenge

to the sufficiency of the evidence. See Reynolds v. State, 2016 Ark. 214, at 3, 492 S.W.3d

491, 494. This court views the evidence in the light most favorable to the State and affirms

if there is substantial evidence to support the verdict. Id. Substantial evidence is that which

is of sufficient force and character that it will, with reasonable certainty, compel a conclusion

one way or the other, without resorting to speculation or conjecture. Id. This court does

not weigh the evidence presented at trial or assess the credibility of the witnesses, because

those are matters for the fact-finder. Id. The trier of fact is free to believe all or part of any

witness’s testimony and may resolve questions of conflicting testimony and inconsistent

evidence. Id.

Whitney first argues that the State failed to prove that he had actual or constructive

possession of the computers because for an eight-day period his ex-wife had sole possession

of the computers. However, the two computers that contained images of child pornography

were found in a computer file that contained the name “Whitney” under “Documents and

Settings.” Additionally, testimony revealed that the images had been created in April and

2
Although Whitney presents his challenge to the trial court’s denial of his motion for
a directed verdict as his second point on appeal, we must address such a challenge first for
purposes of double jeopardy. Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510.

3
Cite as 2017 Ark. App. 341

May 2010, and Teena testified that she and Whitney had lived alone since 2010 and that

she had not used any of the computers since March 2010, after she had bought her own

laptop. The jury was free to believe all or part of her testimony, and it chose to believe her.

Whitney next argues that the State offered no evidence as to the actual ages of the

children. Detective Schrock testified that each picture appeared to depict a prepubescent

female, and the jury was provided with the pictures. The circuit court instructed the jury

with the following, “In considering the evidence in this case, you are not required to set

aside your common knowledge, but you have a right to consider all the evidence in the

light of your own observations and experiences in the affairs of life.” Because the jury was

able to view the photos, taking into account the testimony and instructions, we hold that

substantial evidence supported the verdict.

The second point on appeal is that the circuit court erred in allowing the Yahoo chat

transcripts to be admitted into evidence. A circuit court’s ruling on relevancy and matters

pertaining to the admissibility of evidence is left to the sound discretion of the circuit court

and will not be reversed absent an abuse of that discretion. Sipe v. State, 2012 Ark. App.

261, at 10, 404 S.W.3d 164, 170. An abuse of discretion is a high threshold that does not

simply require error in the circuit court’s decision, but requires that the circuit court acted

improvidently, thoughtlessly, or without due consideration. Id. Moreover, an appellate

court will not reverse a circuit court’s evidentiary ruling absent a showing of prejudice. Id.

Whitney argues that the chats were not relevant to the charges because he was not

charged with soliciting child pornography and that any probative value in the transcripts

was outweighed by the prejudicial effect. The circuit court overruled Whitney’s objection

4
Cite as 2017 Ark. App. 341

at the hearing, finding that the transcripts were relevant to “prove those items mentioned

in Rule 404(b), opportunity, intent, preparation, plan, knowledge, things of that nature[.]”

We agree.

Rule 401 of the Arkansas Rules of Evidence defines relevant evidence as “evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” Ark. R. Evid. 401. Arkansas Rule of Evidence 402 further provides that

“[e]vidence which is not relevant is not admissible.” Ark. R. Evid. 402. Even relevant

evidence may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice. Ark. R. Evid. 403. Evidence of other crimes, wrongs, or acts may not

be admitted to prove the character of a person in order to show that he acted in conformity

therewith, but it may be admissible to prove motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. Ark. R. Evid. 404(b). In Van Sickle

v. State, where defendant was charged with battery in the second degree of a child, we found

no abuse of discretion when the circuit court admitted into evidence a photograph showing

severe bruises on another child after being spanked by defendant. 16 Ark. App. 143, 145,

698 S.W.2d 308, 309 (1985). We explained that even though the photograph was shocking

and prejudicial, the jury could have concluded that the child in the picture had been severely

beaten, and that fact would be highly probative of the issue of defendant’s intent and lack

of mistake or accident. Id.

Although the evidence in this case was inflammatory to a certain extent, the

transcripts were relevant to show that Whitney did not mistakenly have the pictures on his

5
Cite as 2017 Ark. App. 341

computer. The transcripts put him behind the keyboard and connected him to the images.

The transcripts reflected that Whitney admitted possessing pictures of his daughters and of

other young girls. Like the photo in Van Sickle, the transcripts are shocking and prejudicial,

but they were also highly probative toward establishing Whitney’s intent and lack of mistake

or accident. Overall, the transcripts established that Whitney had knowledge and was fully

aware that the pictures were on the computer. Therefore, we cannot say that the circuit

court abused its discretion.

Affirmed.

VIRDEN and WHITEAKER, JJ., agree.

David Hogue, for appellant.

Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.

6