APPEAL FROM THE UNION COUNTY CIRCUIT COURT [NO. CR-12-395] HONORABLE HAMILTON H. SINGLETON, JUDGE
N. Mark Klappenbach, for appellant.
Dustin McDaniel, Att'y Gen., by: Rachel H. Kemp, Ass't Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, JUDGE
Appellant Nicholas Burris was convicted by a Union County jury of one count of rape and one count of residential burglary. He was sentenced to a total of thirty-five years' imprisonment for the two convictions. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals, Burris's attorney has filed a motion to withdraw as counsel on the ground that the appeal is wholly without merit. The motion is accompanied by an abstract, brief, and addendum purporting to list all adverse rulings and to explain why each adverse ruling is not a meritorious ground for reversal. Burris was provided a copy of counsel's brief and notified of his right to file a list of points within thirty days; he opted to file pro se points, and the State filed a responsive brief. From our review of the record and the briefs presented, we find compliance with Rule 4-3(k). The appeal is without merit, counsel's motion to withdraw is granted, and the trial court is affirmed.
I. Sufficiency of the Evidence
As noted above, Burris was convicted of one count of rape. A person commits the offense of rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Ark. Code Ann. § 5-14-103(a)(1) (Repl. 2006). "Forcible compulsion" is "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). "Physical force" is "any bodily impact, restraint or confinement, or the threat thereof." Freeman v. State, 331 Ark. 130, 132, 959 S.W.2d 400, 401 (1998). Force is present if "the act is against the will of the party upon whom the act was committed." Williams v. State, 2011 Ark.App. 675, 386 S.W.3d 609. Counsel provides a full discussion of the evidence in his brief and correctly concludes that any challenge to the sufficiency of the evidence would be without merit.
Here, the evidence of rape was overwhelming. The victim testified that Burris inserted his penis into her vagina against her will. See Richey v. State, 2013 Ark.App. 382 (A rape victim's testimony, standing alone, is sufficient to support a conviction if it establishes the elements of the offense.). The victim identified Burris in open court and described how he injured her face during the assault. The DNA evidence identified the perpetrator as Burris (the crime lab DNA analyst testified that the odds of the DNA belonging to anyone else were one in sixtillion). As such, counsel correctly asserts that there would be no merit to any argument pertaining to the sufficiency of the evidence on the rape count.
Additionally, Burris was convicted of residential burglary. A person commits that offense if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2006). The statute requires entry with the "purpose" to commit an offense punishable by imprisonment. Purpose can be established by circumstantial evidence, and often this is the only type of evidence available to show intent. Whitfield v. State, 2014 Ark.App. 380, 438 S.W.3d 289 (citing Washington v. State, 268 Ark. 1117, 599 S.W.2d 408 (Ark. App. 1980)). The circumstances established by the evidence must be such that the requisite purpose of the accused can reasonably be inferred, and the evidence must be consistent with the guilt of the accused and inconsistent with any other reasonable conclusion. Id. There was substantial evidence supporting Burris's conviction for residential burglary.
Here, the evidence showed that Burris showed up at the victim's house and said that he had $50 worth of crack. The victim testified that she said to him, "I told you about coming into my house and I don't want to fool with you." Burris came back later, kicked in the door, and said "I come here to take it." Burris then grabbed the victim by the arm, began "tussling" with her, and raped her. From this evidence, the jury could have inferred that Burris intended either to rob or rape the victim, either of which is a crime punishable by imprisonment. Counsel therefore again correctly concludes that there would be no meritorious argument on this issue.
II. Other Adverse Rulings
A. Rejection of Proffered Jury Instruction
As mentioned, Burris was charged with rape. At the conclusion of the State's case, Burris proffered a jury instruction on second-degree sexual assault and the lesser-included introductory and transitional instructions for rape. The State responded that, because Burris's defense was absolute innocence, it would be inappropriate for the jury to be able to consider a lesser-included offense. The State also objected that the legislature has not created a lesser- included offense of rape. The circuit court agreed on both points and rejected Burris's proffered instruction.
An instruction on a lesser-included offense is appropriate when it is supported by even the slightest evidence. Green v. State, 2012 Ark. 19, 386 S.W.3d 413; Cole v. State, 2013 Ark.App. 492. Once an offense is determined to be a lesser-included offense, the circuit court is obligated to instruct the jury on that offense only if there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser-included offense. Green, supra. A circuit court's ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Id. Here, there was no rational basis for acquitting Burris of the offense charged and convicting him of the ...