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B.J. v. State

Court of Appeals of Arkansas, Division III

May 13, 2015

B.J., APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE CLARK COUNTY CIRCUIT COURT. NO. 10JV-14-50. HONORABLE ROBERT McCALLUM, JUDGE.

Brandon Crawford, for appellant.

Leslie Rutledge, Att'y Gen., by: Evelyn D. Gomez, Ass't Att'y Gen., for appellee.

RAYMOND R. ABRAMSON, Judge. GLADWIN, C.J., and HARRISON, J., agree.

OPINION

Page 710

RAYMOND R. ABRAMSON, Judge

On May 22, 2014, the State of Arkansas filed a delinquency petition seeking to adjudicate B.J. a juvenile delinquent for committing the offense of rape, a Class Y felony, in violation of Arkansas Code Annotated section 5-14-103. In the petition, the State alleged that B.J. engaged in sexual intercourse or deviate sexual behavior with another person who was less than fourteen years old. After a bench trial on August 29, 2014, the Clark County Circuit Court adjudicated B.J. delinquent. He was sentenced to two years of supervised probation and ordered to complete a psychosexual assessment. He was also ordered to have no contact with the victim, to have no contact with children younger than him without adult supervision, and to attend school. The circuit court also indicated that, after a treatmentcenter assessment was performed, other supplemental orders might be entered.

On appeal, B.J. raises two issues. First, he argues that the trial court erred in finding sufficient evidence of deviate sexual activity for the offense of rape. Second, he maintains that the trial court erred in admitting into evidence statements made by Marie James through the testimony of Jamie Kuykendall. We disagree, and accordingly, we affirm.

On April 30, 2014, B.J., who was ten years old at the time, and his mother, Marie James, went next door to Jamie Kuykendall's house. Jamie's five-year-old son, D.K., was also at the house. Marie and Jamie watched TV in Jamie's bedroom together until about 8:15 p.m. Both B.J. and D.K. were playing in the living room. Jamie testified that Marie went to look in on the boys, saw B.J.'s pants down, and yelled at him to pull them up. Jamie also testified that D.K. told her that he was " poked from behind." The medical report from Arkansas Children's Hospital that was completed after an examination of D.K. showed no physical signs of sexual abuse.

Lieutenant Blake Zaffadil of the Caddo Valley Police Department testified that B.J. told him that D.K. had made up the game called humping, and that D.K. asked him to play it with him. Aaron Triplett, a forensic interviewer at Cooper Anthony Mercy Child Advocacy Center in Hot Springs, testified that he interviewed B.J. on May 6, 2014. The taped interview was admitted into evidence and played in court. The State then rested its case, and B.J.'s counsel moved for a directed verdict arguing that the prosecution had failed to establish a prima facie case of rape--specifically

Page 711

that there had been insufficient evidence presented to the court with respect to penetration and that there was no evidence presented to establish that any act of sexual gratification had occurred. The court denied the motion.

The defense's first and only witness was Marie James. Marie testified that while she and Jamie were watching CSI on television, she did not know how late it had gotten. When the show was almost over, she realized it was about 8:15 or 8:20 p.m. She knew the boys were playing in the other room, but they were quiet. She went to see where they were, and B.J. popped up from behind the couch and said he needed to go to the bathroom. Marie testified that B.J.'s pants were not pulled down, but they were unfastened and that D.K. had his shirt off, but his pants were pulled up and fastened. Marie testified that B.J. told her that D.K. made up a game called the hump game. The defense also introduced a report from the State Crime Lab that showed no semen or blood was found on D.K.

At the conclusion of Marie's testimony, the defense rested and closing arguments began. The defense did not renew its motion for a directed verdict. In his closing arguments, B.J.'s counsel made a dismissal argument on virtually all of the same ...


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