JULIUS J. THOMAS, APPELLANT
STATE OF ARKANSAS, APPELLEE
FROM THE HEMPSTEAD COUNTY CIRCUIT COURT. NO. 29CR-14-112.
HONORABLE DUNCAN CULPEPPER, JUDGE.
S. Biddle, for appellant.
Rutledge, Att'y Gen., by: Jake H. Jones, Ass't
Att'y Gen., for appellee.
T. WHITEAKER, Judge. GLADWIN, C.J., and HARRISON, J., agree.
PHILLIP T. WHITEAKER, Judge
J. Thomas appeals his conviction on one count of rape and one
count of sexual assault in the second degree. After a jury
trial, the Hempstead County Circuit Court imposed a
cumulative sentence of sixty years in the Arkansas Department
of Correction. Thomas raises four points on appeal.
I. Sufficiency of the Evidence
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
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
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 ...