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Date: 12-05-2018

Case Style:

TIMMY DALE JESTER V. STATE OF ARKANSAS

Case Number: 2018 Ark. App. 558

Judge: RITA W. GRUBER

Court: ARKANSAS COURT OF APPEALS

Plaintiff's Attorney: Adam Jackson, Ass’t Att’y Gen.

Defendant's Attorney: Joseph C. Self

Description:




This case originated on September 26, 2016, when four felony informations were
filed against Timmy Dale Jester in the Nevada County Circuit Court. In case No. CR2016
121, Jester was charged with rape under Ark. Code Ann. § 5-14-103 (Supp. 2017) and
second-degree sexual assault under Ark. Code Ann. § 5-14-125. Jester was charged with
second-degree sexual assault under Ark. Code Ann. § 5-14-125 in case Nos. CR2016-122
and CR2016-124. In case No. CR2016-123, Jester was charged with rape pursuant to Ark.
Code Ann. § 5-14-103. Each case involved a different victim who was alleged to be less
than fourteen years old. Before trial, the circuit court granted the State’s motion for
joinder of the cases for trial.



2
A Nevada County Circuit Court jury convicted Jester of one count of rape in
violation of Ark. Code Ann. § 5-14-103 and three counts of sexual assault in the second
degree in violation of Ark. Code Ann. § 5-14-125. He was sentenced to 300 months’
imprisonment for the rape conviction and 60 months’ imprisonment on each of the sexual
assault convictions. The circuit court ordered the sentence for the rape conviction to run
consecutively to one of the sentences for sexual assault, and the other two sexual-assault
sentences were to run concurrently with those sentences.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court
Rule 4-3(k)(1) (2017), Jester’s attorney has filed a motion to be relieved as counsel alleging
that this appeal is without merit. Counsel also filed an accompanying no-merit brief
containing an abstract and addendum of the proceedings below. In the brief, counsel
includes all potentially adverse rulings and explains “why each adverse ruling is not a
meritorious ground for reversal.” Ark. Sup. Ct. R. 4-3(k)(1).1 On December 27, 2017, Jester
filed pro se points for reversal primarily alleging that each of the four alleged victims was
lying. On September 6, 2018, Jester filed additional pro se points adding ineffective
assistance-of-counsel arguments as well as arguments that no DNA evidence was
introduced, that the alleged victims were all coached by the same child-advocacy person
and gave almost the exact testimony, and that opinions of the alleged victims and their

1This is Jester’s appellate counsel’s second attempt in filing a no-merit appeal. In the first attempt, we denied counsel’s motion to be relieved and ordered rebriefing. Jester v. State, 2018 Ark. App. 360.



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families were shared with the public on social media. The State has filed a brief in response
to each set of Jester’s pro se points as required by Rule 4-3(k)(3).
In compliance with the directives of Anders and Rule 4-3(k)(1), counsel for Jester
contends that he has thoroughly reviewed the record in this case and has found no error
that would support an appeal. As required by Rule 4-3(k), the reasons the adverse rulings
provide no meritorious grounds for appeal are discussed in the brief. Counsel has
abstracted and briefed all adverse rulings, which included adverse rulings during jury
selection, adverse evidentiary rulings, the denial of the directed-verdict motion, and the
denial of the motion for new trial.
In his original pro se points, Jester argues how each of the four victims lied in her
testimony. In its response, the State fairly characterizes Jester’s pro se points as a challenge
to the sufficiency of the evidence. The State contends that a challenge to the sufficiency of
the evidence is not preserved for appeal because he failed to make a specific directed
verdict motion at trial. In order to challenge the sufficiency of the evidence on appeal, a
specific directed-verdict motion identifying the elements not proved by the State must be
made at both the close of the State’s case-in-chief and at the close of all the evidence. See
Ark. R. Crim. P. 33.1; Eastin v. State, 370 Ark. 10, 15, 257 S.W.3d 58, 62−63 (2007).
Alternatively, the State responds that there is sufficient evidence to support the
convictions, noting that Jester’s allegations that the victims lied goes to the credibility of
each victim’s testimony and that the testimony of the victim describing the sexual contact
need not be corroborated and is enough to sustain the conviction. See Jeffries v. State, 2014



4
Ark. 239, at 5, 434 S.W.3d 889, 893 (“[I]t is the function of the jury, not the reviewing
court, to evaluate the credibility of the witnesses and resolve any inconsistencies in the
evidence.”); see also Europe v. State, 2015 Ark. App. 460, at 4, 468 S.W.3d 792, 795 (stating
the principle that the uncorroborated testimony of a rape victim, which is sufficient to
support a conviction if the testimony satisfies the statutory elements of rape, also applies to
sexual offenses other than rape).
In his additional pro se points, Jester makes nine allegations. In its response, the
State accurately notes that six of the points involve allegations of ineffective assistance of
counsel.2 Claims of ineffective assistance of counsel will not be considered on direct appeal
unless the issues have been considered by the circuit court. Gordon v. State, 2015 Ark. 344,
at 4, 470 S.W.3d 673, 675. In the remaining three points, Jester contends that no DNA
evidence was introduced, that the alleged victims were all coached by the same child
advocacy person and gave almost the exact same testimony, and that opinions of the
alleged victims and families were shared with the public on social media. The State
responds that the three remaining arguments were not argued in the circuit court and are
thus not preserved for appeal. The law is well settled that to preserve an issue for appeal, a
defendant must object at the first opportunity. Id. The State contends that to the extent
Jester’s assertion that no DNA evidence was introduced is a challenge to the sufficiency of
the evidence, it previously addressed the issue in response to Jester’s original points and

2One of the claims of ineffective assistance of counsel raised in the additional pro se points was also mentioned in the original pro se points.



5
which we addressed above. Finally, the State also asserts that Jester does not allege a trial
error occurred in regard to his pro se point that the opinions of the victims and their
families were shared with the public on social media and further that Jester’s counsel
objected to and successfully removed jurors who had been influenced by social media, as
addressed in counsel’s no-merit brief. We agree with the State that Jester’s pro se points do
not support an appeal because they are either not preserved or do not support reversal.
The test for filing a no-merit brief is not whether there is any reversible error but
whether an appeal would be wholly frivolous. House v. State, 2015 Ark. App. 280. Based on
our review of the record and the brief presented, we find that there has been compliance
with Rule 4-3(k) and that there is no merit to an appeal. We also conclude that there is no
merit to Jester’s pro se points.

Outcome: Consequently, we grant counsel’s motion to withdraw and affirm the convictions.

Affirmed; motion to withdraw granted.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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