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Thompson v. State

Court of Appeals of Arkansas, Division I

April 29, 2015

MARIO D. THOMPSON, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

Page 369

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NO. CR-2012-709-1; NO. CR-2014-776-1. HONORABLE WILLIAM A. STOREY, JUDGE.

Evans & Evans Law Firm, by: James E. Evans, Jr., for appellant.

Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

BRANDON J. HARRISON, Judge. VIRDEN and HIXSON, JJ., agree.

OPINION

Page 370

BRANDON J. HARRISON, Judge

Mario Thompson appeals his convictions for sexual assault and rape, arguing that the circuit court erred in (1) denying his motion for directed verdict, (2) denying his motion for severance, (3) denying his motion to suppress his statement to the police, (4) not allowing a certain forensic evaluation into evidence, (5) not allowing certain testimony pursuant to Ark. R. Evid. 404(b), and (6) denying his motion to quash the jury panel. We affirm.

In case number CR-2012-709-1, Thompson was charged with two counts of sexual assault in the second degree. In case number CR-2014-776-1, he was charged with one count of rape. The cases were tried together, and a jury found Thompson guilty of all charges and fixed sentences of ten years' imprisonment for each count of sexual assault and twenty-five years' imprisonment for rape. The court imposed the sentences to run consecutively, and Thompson has now appealed. Specific facts pertinent to the points on appeal will be discussed below.

I. Sufficiency of the Evidence

The State's evidence in this case can be summarized as follows. Fourteen-year-old J.C., the victim in CR-2012-709-1, testified that when she was five years old, her babysitter was Thompson's mother, Laverne Thompson. J.C. explained that she and several other children stayed at Laverne's

Page 371

house during the summer and after school and that Thompson was there, too. On several occasions during naptime, while the other children were sleeping, Thompson took her to his bedroom, took her clothes off, positioned himself over her " in a push up position," and put his penis into her vagina. J.C. testified that this also happened at her house when Thompson babysat her on his own, at the Boys and Girls Club in an equipment room, and once when Thompson picked her up from the Boys and Girls Club, drove her to a house that was under construction, and did " the same thing." She agreed that she was approximately five to seven years old when these incidents occurred and that she guessed Thompson was " sixteen or seventeen." J.C. said that she did not tell anyone about the abuse when it happened because Thompson told her not to and she was scared. J.C. told her mother about the prior abuse when she was twelve years old.

Officer Malachi Samuels of the Fayetteville Police Department testified that he interviewed Thompson on 7 March 2012. Samuels agreed that during the course of the interview, Thompson initially denied sexual contact with J.C. but later admitted to it. Thompson also admitted that he sent J.C.'s mother a Facebook message apologizing for " having intercourse" with J.C. Samuels explained that, according to his investigation, Thompson had access to J.C. from 2005 to 2008, and with Thompson's birth date in September 1987, he was between seventeen and twenty years old during that time.

Terri Center, J.C.'s mother, testified that she received a Facebook message from Thompson on 6 March 2012, apologizing for " all that I have done in the past." When Center asked if he had hurt J.C., Thompson responded, " No when I use[d] to babysit them and have any intercource [sic] with her like sex." Center testified that she reported the sexual abuse to the police that same day.

Jeanette Walker, mother of K.W., the victim in CR-2014-766-1, testified that her son and Thompson were in " Explorers" together, which is akin to the Boy Scouts but focused on law-enforcement duties. Walker was a Deputy First Class at the Washington County Sheriff's Office, and Thompson volunteered at the Sheriff's Office in the dentention center. She explained that Thompson and her son were friends and that Thompson would sometimes come to her home. According to Walker, in the summer of 2007, there was an instance in which her daughter, nine-year-old K.W., wanted to go swimming, so Walker allowed Thompson to take K.W. to the swimming pool.

Sixteen-year-old K.W. testified that she first met Thompson when she was approximately seven years old. She said that when she was nine or ten years old, Thompson offered to take her swimming and her mother allowed her to go. At the swimming facility, Thompson told her to go into the family changing room with him. Thompson then locked the door, turned out the lights, and started touching her breasts and vagina. He also put his penis inside her vagina. He told her afterward that if she told anyone, they would both get into trouble. She explained that she did not tell anyone about the incident until recently because she was scared and " didn't want to be the weird girl that got raped." She also testified that a similar incident happened again a short time later, again at the swimming facility's family changing room.

Detective Richard Firsby with the Springdale Police Department testified that when this incident occurred, K.W. was nine years old and Thompson was nineteen.

Page 372

Sue Stockton, a sexual-assault examiner with a specialty in pediatrics, testified that she examined K.W. on January 28, 2014, and that K.W. had a normal genital exam. She also said that a child can be penetrated without injury and that it is very difficult to diagnose vaginal penetration if a long period of time has passed.

In his directed-verdict motion below, Thompson argued that the State had failed to prove sexual gratification or penetration, that both victims' testimony was not credible and insufficient to sustain a conviction, and that his age when the alleged offenses occurred had not been proven. On appeal, Thompson similarly argues that the State failed to provide sufficient evidence of penetration in CR-2014-776-1 and that, in both cases, the victims' testimony was not credible and the State failed to prove his age at the time of the offenses.

This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. See Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. The credibility of witnesses is an issue for the jury and not the court. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. 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.

A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Ark. Code Ann. § 5-14-103(a)(3)(A) (Repl. 2013). " Deviate sexual activity" is defined as " any act of sexual gratification involving the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person." Ark. Code Ann. § 5-14-101(1)(B) (Repl. 2013). A person commits the offense of second-degree sexual assault if he, being eighteen years of age or older, engages in sexual contact with another person who is less than fourteen years of age and not the person's spouse. Ark. Code Ann. § 5-14-125(a)(3) (Repl. 2013). " Sexual contact" is defined as " any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female." Ark. Code Ann. § 5-14-101(10) (Repl. 2013).

We reject Thompson's arguments. Both victims testified that Thompson penetrated their vaginas with his penis, and a rape victim's uncorroborated testimony describing penetration may constitute substantial evidence to sustain a conviction of rape, even when the victim is a child. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008). The rape victim's testimony need not be corroborated, and scientific evidence is not required. Kelley v. State, 375 Ark. 483, 292 ...


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