# Brown v. State

> Court of Appeals of Arkansas · June 14, 2006 · 95 Ark. App. 348

URL: https://www.frixlaw.com/law-library/cases/9632881

## Case

- **Full name:** John H. BROWN v. STATE of Arkansas
- **Court:** Court of Appeals of Arkansas
- **Decided:** June 14, 2006
- **Citations:** 95 Ark. App. 348; 237 S.W.3d 95
- **Precedential status:** Published
- **Opinion:** Dissent by Baker
- **Judges:** Sam Bird
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9632881

## Opinion text

Karen R. Baker, Judge, dissenting. I dissent from the majority’s decision that appellant was prejudiced by the prosecutor’s failure to disclose the calendar, and its holding that this failure requires that the conviction be reversed and the case remanded for trial. With this decision, the majority establishes a new standard of review for cases of alleged discovery violations: Prejudice is presumed when the evidence is unavailable for review due to a defendant’s failure to proffer it.
As the majority correctly states, “[T]he key to determining if a reversible discovery violation exists is whether an appellant was prejudiced by the prosecutor’s failure to disclose.” Scroggins v. State, 312 Ark. 106, 116 , 848 S.W.2d 400, 405 (1993). The majority then finds that the calendar was important to Brown’s attempts to establish a time line and to impeach the complainant and her mother. However, the majority does not explain how the establishment of a time line, based on this calendar, would have been exculpatory or would have tended to negate guilt. As our supreme court has noted exact dates are not critical particularly where, as here, appellant’s defense is denial.
Generally, the time a crime is alleged to have occurred is not of critical significance, unless the date is material to the offense. See Ark. Code Ann. § 16-85-405 (d) (1987); Wilson v. State, 320 Ark. 707 , 898 S.W.2d 469 (1995); Harris v. State, 320 Ark. 677 , 899 S.W.2d 459 (1995); Fry v. State, 309 Ark. 316 , 829 S.W.2d 415 (1992). “That is particularly trae with sexual crimes against children and infants.” Id. at 317 , 829 S.W.2d at 416 . Any discrepancies in the evidence concerning the date of the offense are for the jury to resolve. Wilson, 320 Ark. 707 , 898 S.W.2d 469 (citing Yates v. State, 301 Ark. 424 , 785 S.W.2d 199 (1990)). In cases ofrape, the evidence is sufficient if the victim gave a full and detailed accounting of the defendant’s actions. Id. Moreover, where the defense is that the sexual acts never occurred and were entirely fabricated, the lack of exact dates are not prejudicial to the defendant. See Harris, 320 Ark. 677 , 899 S.W.2d 459 ; Fry, 309 Ark. 316 , 829 S.W.2d 415 .
Martin v. State, 354 Ark. 289, 295-96 , 119 S.W.3d 504, 508 (2003).
The majority’s failure to explain why the establishment of a time line was relevant to appellant’s defense or would have impeached the credibility of the complainant or her mother is understandable given that the calendar is not in the record for our review. Our supreme court has explained this difficulty in evaluating evidence not in the record:
[T]he fact remains that this court cannot begin to review the merits of Appellant’s argument on this point without having any clue regarding the nature of the [] evidence. It is well settled that it is Appellant’s burden to bring forth a record that demonstrates error. Raymond v. State, 354 Ark. 157 , 118 S.W.3d 567 (2003); Lukach v. State, 310 Ark. 38 , 834 S.W.2d 642 (1992). In the absence of the controverted evidence, we simply cannot ascertain whether Appellant was prejudiced by the trial court’s ruling. It is axiomatic that this court will not presume prejudice where the appellant offers no proof of it. Barnes v. State, 346 Ark. 91 , 55 S.W.3d 271 (2001); Tucker v. State, 336 Ark. 244 , 983 S.W.2d 956 (1999).
Rollins v. State, 362 Ark. 279 , 208 S.W.3d 215 (2005).
We have never presumed prejudice. The majority offers that the establishment of a time line would have helped impeach the victim and her mother. According to the majority, the denial to the defense of access to the calendar requires a new trial. While we do not know much about the calendar, we do know that: First, it was prepared the week before trial preparation in July 2004; Second, it was written by the victim’s mother. Although the majority appears to accept appellant’s argument that the trial court’s discovery order was violated; in fact, the discovery order directed the State to produce documents written by the victim between the dates of July 1, 2003, to August 1, 2003 1 . I cannot fathom how the failure to produce a calendar with notes written by the victim’s mother approximately a year after the events alleged in the felony information violates the court’s order to produce documents written by the victim one year earlier contemporaneously with those events. Nor can I understand how notes prepared a year after the events would have been exculpatory or would have tended to negate appellant’s guilt. Therefore, although I agree that the calendar was not the prosecutor’s work product, I cannot agree that the State was required to provide the calendar pursuant to Rule 17.1(d) of the Ark. R. Crim. P. (2005).
The implication, and inference is required because the prejudice is never stated by the majority or the appellant, is that the non-contemporaneous notes on the calendar would allow appellant to impeach the victim and her mother as to the accuracy of the date of the events and that any discrepancy of the dates would bring into question the credibility of the witnesses. The problem with that premise is that the discrepancy of the date was evident in the two informations filed by the State. The first identified the date of the assault as July 15, 2003, while the second, filed in August 2004 after the July 2004 trial preparation and the creation of the calendar, identified the date of the assault as on or about July 1-15, 2003. Contradictions within the victim’s trial testimony about the date of the assault were evident at the time of the trial. Appellant’s counsel cross-examined both the victim and her mother about the creation of the calendar. Appellant moved for a mistrial because the State had not provided him with the calendar prior to trial, yet appellant never asked the court to review the calendar or proffered the calendar for appellate review. Nothing in the record, appellant’s argument, nor the majority’s opinion, identifies how a more detailed two-week time line would be exculpatory to the defendant. The majority’s presumption that appellant was prejudiced because the creation of a two-week time line based upon a review of the calendar would allow appellant to impeach the witnesses’ credibility concerning discrepancies, cannot support a finding of prejudice when the information and testimony identifying the discrepancies were before the jury.
In this case, appellant does not argue, and the majority does not explain, the prejudice appellant suffered by the alleged discovery violation. Appellant never asked the court to make the calendar a part of the record for appellate review, yet the majority finds that the omission of the non-contemporaneous calendar requires reversal. While I do not believe it is this court’s role to engage in speculation as to the contents of the calendar, were I to engage in such speculation I still cannot conceive of a plausible situation where the contents of the calendar would be exculpatory or material to appellant’s defense in this case.
I would affirm on all points.
Roaf, J., joins. The majority reiterates the wording of the discovery order in a footnote contending that reading “between” in its adverbial form modifying “composed” is incorrect. Even reading the phrase to mean writings telling about events or describing appellant between those dates, I still cannot see how this calendar with its notes could result in exculpatory evidence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9632881. Public record. Not legal advice.