APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT, [No. CR-2008-153] HONORABLE GARY R. COTTRELL, JUDGE AFFIRMED.
The opinion of the court was delivered by: Robert J. Gladwin, Judge
Dr. Clarence Jay Arendall appeals his April 1, 2009 conviction in Crawford County Circuit Court on two counts of second-degree sexual abuse. On appeal, he contends that the jury's verdict was not supported by sufficient evidence; that the trial court abused its discretion in denying his motion to sever the two charges; and that the trial court abused its discretion in allowing nine witnesses to testify and excluding appellant's proffered evidence regarding one victim's hot-check charges pursuant to Rule 404(b) (2009) of the Arkansas Rules of Evidence. We affirm appellant's conviction.
A felony information was filed April 1, 2008, alleging that appellant committed two counts of sexual assault on or about February 13 and 14, 2008, in violation of Arkansas Code Annotated section 5-14-125 (Supp. 2009). Prior to trial, appellant filed a motion to exclude witnesses,*fn1 a motion to sever offenses, and a motion to exclude Rule 404(b) witnesses. At the pre-trial hearing, the trial court denied the motion to sever, the motion to exclude Rule 404(b) witnesses as to those witnesses who were patients, and an oral motion to admit evidence of a pending felony overdraft case against one of the victims under Rules 607 and 609 (2009) of the Arkansas Rules of Evidence.
At trial, Brett Hartley, an Alma police officer, testified that he took the first report against appellant on July 26, 2007, and referred that victim to the medical board. A second complaint against appellant was filed by Charlotte Adams on February 13, 2008. On March 26, 2008, Debra Davis filed the third complaint against appellant. None of the three victims were allowed to read the others' statements. They did not know each other and had no connection to each other, but each of their statements was alike. When the police department allowed a television broadcast of their investigation and a warrant was issued for his arrest, seventeen other reports against appellant were made, and appellant was arrested on March 31, 2008.
Charlotte Adams testified that appellant had been her family's doctor, and she had seen him for pneumonia, back problems, and the like. On February 13, 2008, she saw appellant for complaints related to her lower back and right leg. Appellant asked Ms. Adams to stand up while he remained sitting on his stool, which had wheels. He moved around and felt Ms. Adams's lower back, then reached around her waist and tried to unbutton her pants. He asked her to unbutton them, and when she complied, he pulled them down to her knees.
She did not have on underwear, and there was no one else in the room. She did not remember if he wore gloves, but he did feel her lower back and buttocks, running his hand from her knee to the inside of her thigh, touching her vagina, then sliding it back down. He put his hand on her clitoris, rubbed four or five times, and said that he did not want to do anything inappropriate. He wheeled in front of her and said, "Nice shave job," then laughed, and said that he should bend her over the table. He laughed again, felt her knee, and started to lift up her shirt. Ms. Adams pulled her shirt down and began pulling her pants up. She said she felt as if it were a dream; she did not scream; she was in shock; she did not tell him to stop; and she just froze. When she pulled up her pants, she said that appellant looked scared. She said she was angry when she realized what was happening and that appellant offered to get her sample drugs.
Ms. Adams walked out, paid, and left. She said she cried in her truck, and that nothing like this had ever happened before in the years she had known him. She drove straight to the police department to file a report. She went back a few days later to make a written statement for Detective Hartley. She agreed to help the police investigate and made two telephone calls to appellant. She went into appellant's office on March 5, 2008, wearing a recording device.
She acknowledged that her attorney filed a civil lawsuit against appellant on March 1, 2008, seeking $250,000 in damages, plus punitive damages. She also admitted to having seen Debra Davis's statement at appellant's medical-board hearing where she met Ms. Davis in June 2008.
Finally, she said that Capital One had filed a $3700 judgment against her. She told the trial court that she did give appellant consent to give her an exam, but not to touch her clitoris, the inside of her thighs, or "up by her vagina." She further testified that she did not give him permission to say nasty things to her.
Officer Doug McAlister, a senior special agent with the Criminal Investigation Division of the State Police, testified that he was called to assist Detective Hartley with the investigation. He and Detective Hartley arranged for Ms. Adams to make telephone calls to appellant and to wear the recording device when she went to appellant's office. The transcript of the meeting between Ms. Adams and appellant was admitted as evidence.
Debra Davis testified that she had taken her son and husband for appointments with appellant and went to see him herself on February 14, 2008, for lower- back and shoulder pain. Appellant told Ms. Davis to stand up, unbuttoned her pants and belt, and sat down on the chair behind her. He was not wearing gloves, and he ran his fingers down the side of her legs, pulling down her pants and underwear. When Ms. Davis tried to pull her pants back up, he told her to wait. She stood back up, and appellant put his hands on the outside and the inside of her leg, rubbing back and forth against her vagina and thigh. He asked her if it hurt, and she told him no. He said, "Dang girl you got a nice butt." Ms. Davis turned to the side and pulled her pants up. He commented that even though she had children, she had no stretch marks. Ms. Davis opened the door and called her three-year-old son into the room because she was afraid. Appellant asked her questions about whether she had had a pap smear, and suggested she come back to him and get one. He wrote her a prescription and told her to come back in a month. She did not make another appointment. She eventually called an attorney, who contacted police. Her attorney filed a lawsuit against appellant but did not seek a specific sum of money. Ms. Davis contacted the medical board and she filed a police report on March 26, 2008. She reiterated that she did not give appellant permission to touch her vagina.
Pursuant to Rule 404(b), the State called several witnesses that had been patients of appellant. Each testified to similar scenarios that occurred while being examined by appellant as occurred during the exams complained of by Ms. Davis and Ms. Adams.
The State called Dr. Robert Wendell Ross, a family-practice doctor for thirty-nine years, who explained how his office runs, including the procedures with nurses, gowns, and paper sheets for covering. He testified that he would never disrobe a female himself, that he had never unbuttoned someone's pants and pulled them and their underwear down, and that there is always a paper sheet that lays across the patient's lap. He said he could not think of a reason why he would need to examine a woman's vagina in connection to lower-back pain.
He testified that he would refer someone to a specialist if anti- inflammatory medicines and muscle relaxers did not help their lower-back pain. He said he has never had a woman remove her panties for a back exam, and that he would not examine a woman's breasts if she had come to him with a sore throat. He said that it would be inappropriate not to have a nurse in the room during an examination.
When the State rested its case, appellant moved to renew his motion to exclude two Rule 404(b) witnesses that had not been disclosed to him in a timely manner prior to trial, and the trial court denied the motion. Appellant then moved to exclude the remaining 404(b) witnesses, arguing that the evidence was not admissible to show intent, motive, plan, or scheme. He argued that, other than giving the laundry list, the State had never specifically stated its basis for allowing the evidence under Rule 404(b). He claimed that the witnesses testified only for the purpose of showing that he was a bad character and not for any reason listed in 404(b). The trial court denied that motion, reminding appellant that he had been given some relief by the court's limiting of the number of witnesses.
Appellant also moved to renew his oral motion regarding the introduction of certain checks that went to the issue of credibility of a witness. He made the arguments he had made before trial regarding Rules 404, 609, 607 and 608. The trial court denied this motion.
Finally, appellant moved for a directed verdict arguing that the State presented insufficient evidence to prove sexual contact or forcible compulsion.*fn2 The trial court denied his motion.
Appellant renewed his motion for directed verdict at the close of the defense's case, along with the other motions listed above, and they were again denied. The jury returned verdicts of guilty on both counts of second-degree sexual abuse, and appellant was sentenced to two concurrent five-year terms of imprisonment. A timely notice of appeal was filed, and this appeal followed.
Sufficiency of the Evidence
This court treats a motion for directed verdict on appeal as a challenge to the sufficiency of the evidence. Ward v. State, 370 Ark. 398, 260 S.W.3d 292 (2007). We will affirm the circuit judge's denial of a motion for a directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury's verdict. Id. Substantial evidence is defined as "evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture." Young v. State, 370 Ark. 147, 151, 257 S.W.3d 870, 875 (2007).
Furthermore, "[t]his court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered." Id. In determining whether there was substantial evidence to support the verdict, this court looks at all of the evidence is an issue for the jury and not the court. See Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). The factfinder is free to believe all or part of a witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
Appellant argues that his motion for directed verdict should have been granted because the State failed to prove any evidence of forcible compulsion. Arkansas Code Annotated section 5-14-125(a)(1) provides that a person commits sexual assault in the second degree if the person engages in sexual contact with another person by forcible compulsion. "Forcible compulsion" is defined as "physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person." Ark. Code Ann. § 5-14-101(2) (Supp. 2009).
Appellant contends that in a case in which there is no express or implied threat of death, physical injury, or kidnapping, in order to convict someone of second-degree sexual abuse, the State must prove there was "physical force" in order to prove forcible compulsion.
Further, since the statute already requires touching within the element of sexual contact, "physical force" must be something more than mere touching. He cites Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005), where the Arkansas Supreme Court held that forcible compulsion was evidenced by actions including shoving a victim against a wall, locking her in a room, pushing her against a table, and touching her buttocks and breasts. Forcible compulsion was also found in Rounsaville v. State, 2009 Ark. 479, ___ S.W.3d ___, where the defendant used physical force against the victim when she refused to have sex with him.
Finally, appellant cites Nelson v. State, 262 Ark. 391, 557 S.W.2d 191 (1977), which was decided when physical force was still a necessary element of the rape of a child. In Nelson, the court found no evidence of forcible compulsion, even though there was clear evidence of sexual advances to which the child had previously submitted, where a child let her stepfather into her room after he banged on the door for fear he would have a heart attack if he were not allowed in. Id. Appellant herein argues that if merely touching a person sexually were enough to be forcible compulsion, there would have been sufficient evidence in Nelson of forcible compulsion, since there was testimony of previous sexual contact.
Appellant contends that there was no testimony from either Ms. Adams or Ms. Davis that he threatened them, either expressly or impliedly, with death or physical injury, and he did not threaten to kidnap them or anyone else. Therefore, he contends that the State was required to show physical force in order to prove second-degree sexual abuse. He argues that Ms. Adams's testimony presented absolutely no evidence of physical force or any sort of threat. He asserts that she may have been uncomfortable or shocked, but until and unless he tried to compel her to do something, he did not use forcible compulsion on her. He asserts that he did not prevent her from leaving, refuse to open the door, or continue to touch her.
Similarly, he argues that he used no physical force on Ms. Davis. Her testimony was that he said "wait" when she started to pull up her pants. She stopped and let him proceed with the examination. She did not ask him to stop or tell him that she was uncomfortable with what he was doing. He argues that this was a consensual exam, regardless of whether it was unorthodox. He contends that the only physical impact was the touching that was used by the State to show sexual contact. Because sexual contact and ...