APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-2014-777-2] HONORABLE BRADLEY LEWIS KARREN, JUDGE
Justin B. Hurst, for appellant.
Leslie Rutledge, Att'y Gen., by: Evelyn D. Gomez, Ass't Att'y Gen., for appellee.
RITA W. GRUBER, JUDGE.
Appellant Ali Martin Matar, Jr., was convicted by a jury of rape and sentenced to thirty-five years' imprisonment. The victim was a kindergarten student at the after-school program where appellant worked. He raises the following three points on appeal: (1) the trial court erred in denying his motions for directed verdict; (2) the trial court erred in denying his motion to suppress his confession; and (3) the trial court abused its discretion in denying his motion for a continuance. We hold that appellant did not preserve his first point for appellate review; that appellant was not in custody for purposes of Miranda and, thus, the trial court's denial of his motion to suppress was not clearly against the preponderance of the evidence; and that the trial court did not abuse its discretion in denying his motion for continuance. Accordingly, we affirm.
The Bentonville Police Department began an investigation regarding the sexual abuse of a child at the after-school program for R.E. Baker Elementary School after a call was made to the Arkansas Child Abuse Hotline. The five-year-old victim was interviewed at the Children's Advocacy Center (CAC) and made allegations against appellant.
This interview prompted the lead investigator, Detective Dahrron Moss, to attempt to contact appellant. Detective Moss eventually left a voice message for appellant, who returned his call. Detective Moss explained that an allegation had been made against appellant and, though he was under no obligation, Detective Moss would like to speak with him at the police department. Appellant went to the police department where Detective Moss took him to a small interview room. After making small talk, Detective Moss began asking appellant about his job, the challenges of childcare, and, eventually, about his interactions with the victim. Appellant admitted that his fingers had been inside of her panties while they were in the computer lab but claimed that he was merely attempting to make her stop touching herself inappropriately. Appellant said that his fingertips "grazed" inside of her vagina when he was trying to get her fingers out of her panties.
At this point, Detective Moss took a break, consulted with other officers, and returned to the interview room. He read appellant his Miranda rights and asked him if he was willing to keep talking, to which appellant replied, "yes." Eventually, appellant admitted that he had put his hand in the victim's panties and "grazed" her vagina and that he had also put his finger in her vagina "out of curiosity."
Appellant was charged with rape under Arkansas Code Annotated section 5-14-103, which provides in pertinent part, that a person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person less than fourteen years of age. Ark. Code Ann. § 5-14-103(a)(3)(A) (Repl. 2013). Deviate sexual activity includes 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. Ark. Code Ann. § 5-14-101(1) (Repl. 2013). After a trial held on January 27, 2015, the jury found him guilty and sentenced him to thirty-five years' imprisonment.
I. Sufficiency of the Evidence
On appeal, appellant contends that the trial court erred in denying his motions for directed verdict because the evidence was insufficient to show that he engaged in deviate sexual activity or sexual intercourse with the minor victim. Specifically, he states that, although the victim testified that he "tickled [her] on the inside of [her] private part" with his hand under her panties while they were in computer lab, testimony at trial established that he was never alone with the victim, that the victim had said that she liked him as a teacher, and appellant admitted the allegations to police in his confession only because he was "saying whatever they wanted" until he could prove everything at trial.
Because appellant did not raise these arguments to the trial court, we decline to reach the merits of this issue. Arkansas Rule of Criminal Procedure 33.1 requires a motion for directed verdict to specify how the evidence is deficient. Ark. R. Crim. P. 33.1(c) (2015). The motion must be specific enough to apprise the trial court of the particular basis on which the motion is made. Scott v. State, 2015 Ark.App. 504, at 4, 471 S.W.3d 236, 239. The reason underlying this rule is that, when specific grounds are stated and the proof is pinpointed, the trial court can either grant the motion or allow the State to reopen its case and supply the missing proof. Id. A further reason that the motion must be specific is that the appellate court may not decide an issue for the first time on appeal and cannot afford relief that is not first sought in the trial court. Phillips v. State, 361 Ark. 1, 203 S.W.3d 630 (2005). A party moving for directed verdict may not change his arguments on appeal and is limited to the scope and nature of his arguments made below. Id.
Here, appellant made motions for a directed verdict at the appropriate times during the trial, but in each instance, counsel's sole argument was that the State had put on no evidence that appellant received sexual gratification. Appellant is not making the same argument on appeal but argues instead that the case is a "simple misunderstanding of a person-to-person contact" and that appellant did not engage in deviate sexual activity with the victim. This argument is significantly different from, and broader than, the relatively narrow argument appellant made in the trial court. Therefore, appellant failed to preserve his sufficiency challenge for appellate review.
Were we to consider the merits of appellant's argument, we would affirm. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Cobb v. State, 340 Ark. 240, 243, 12 S.W.3d 195, 197 (2000). The test for determining sufficiency of the evidence is whether there is substantial evidence, direct or circumstantial, to support the verdict. Johnson v. State, 337 Ark. 196, 201, 987 S.W.2d 694, 697 (1999). Evidence is substantial if it is forceful enough to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Harmon v. State, 340 Ark. 18, 22, 8 S.W.3d 472, 474 (2000). On appeal, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. LeFever v. State, 91 Ark.App. 86, 89, 208 S.W.3d 812, 815 (2005). ...