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Thomas v. State

Court of Appeals of Arkansas, Division I

April 6, 2016

JULIUS J. THOMAS, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

          APPEAL FROM THE HEMPSTEAD COUNTY CIRCUIT COURT. NO. 29CR-14-112. HONORABLE DUNCAN CULPEPPER, JUDGE.

         Anthony S. Biddle, for appellant.

         Leslie Rutledge, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.

         PHILLIP T. WHITEAKER, Judge. GLADWIN, C.J., and HARRISON, J., agree.

          OPINION

         

Page 416

          PHILLIP T. WHITEAKER, Judge

         Julius J. Thomas appeals his conviction on one count of rape and one count of sexual assault in the second degree.[1] After a jury trial, the Hempstead County Circuit Court imposed a cumulative sentence of sixty years in the Arkansas Department of Correction.[2] Thomas raises four points on appeal. We affirm.

         

Page 417

          I. Sufficiency of the Evidence

         As his last point on appeal, Thomas raises a challenge to the sufficiency of the evidence. We must address this challenge first for purposes of double jeopardy. See Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004). Thomas challenges the circuit court's denial of his motion for directed verdict. This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Gwathney v. State, 2009 Ark. 544, 381 S.W.3d 744. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, consider only the evidence that supports the verdict, and affirm if substantial evidence exists to support the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Campbell v. State, 2009 Ark. 540, 354 S.W.3d 41. Specifically, Thomas challenges the sufficiency of the evidence on his rape conviction.[3]

          A person commits rape if he or she 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" includes, among other things, any act of sexual gratification involving the " penetration, however slight, of the labia majora . . . of a person by any body member or foreign instrument manipulated by another person." See Ark. Code Ann. § 5-14-101(1)(B). " [P]enetration can be shown by circumstantial evidence, and if that evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that is sufficient." Fernandez v. State, 2010 Ark. 148, at 8, 362 S.W.3d 905, 909 (citing Young v. State, 374 Ark. 350, 288 S.W.3d 221 (2008)).

          Thomas contends that the State failed to prove " penetration," a necessary element of rape. To support his argument, Thomas points to inconsistencies in the victim's testimony. Viewing the evidence in ...


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