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Lewis v. State

Court of Appeals of Arkansas, Division IV

May 11, 2016



James D. Burns, Public Defenoy: Evelyn D. Gomez, Ass't Att'y Gen., for appellee.


Franklin Edward Lewis was charged in the Circuit Court of Saline County with multiple counts of rape against his minor daughter and with one charge of failure to appear. The case proceeded to a jury trial in the circuit court on a single count of rape.[1] The victim and her brother testified at trial that the criminal conduct took place in the back bedroom of a trailer where they lived with their dad and former stepmom. Other witnesses who testified for the State were the children's paternal grandmother; a nurse from Mercy Child Advocacy Center in Hot Springs, Garland County; a child-forensic interviewer from the advocacy center; and two members of law enforcement from the Benton Police Department in Saline County.

Lewis moved for a directed verdict at the conclusion of the State's case, making the following argument:

It is not our recollection, Your Honor, that there was ever any specific identification of the defendant as the man sitting in court as the defendant. We don't recall anybody ever, including the witnesses. They spoke about Daddy, they talked about Frank, but they never pointed to him and said, that's the man. I don't know that anybody ever pointed to him and said that's the man. And then the last thing is, we can recall no evidence establishing that anything happened in Saline County.

The court denied the motion, and the defense rested without putting on a case. Lewis renewed his motion for the reasons previously stated; again, the motion was denied. Lewis was convicted of second-degree sexual assault, a lesser-included offense to rape, and was sentenced to 240 months' imprisonment in the Arkansas Department of Correction.

Lewis contends on appeal that the circuit court erred in denying his directed-verdict motion because (1) the court lacked jurisdiction and (2) the prosecution failed to identify him as the person who committed the crime. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Witcher v. State, 2010 Ark. 197, at 1, 362 S.W.3d 321, 322. When the sufficiency of the evidence is challenged on appeal, the evidence is viewed in the light most favorable to the verdict. Id. The appellate court considers only the evidence supporting the verdict. Id. The verdict will be affirmed if it is supported by substantial evidence, which is evidence forceful enough to compel a conclusion without resorting to suspicion or conjecture. Id. Under these standards, we affirm.

I. Jurisdiction

The State "is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue." Ark. Code Ann. § 5-1-111(b) (Repl. 2013). Our supreme court has noted that "§ 5-1-111(b) created a presumption in favor of jurisdiction in the place where the charge is filed by the State." Cates v. State, 329 Ark. 585, 589, 952 S.W.2d 135, 137 (1997) (citing Higgins v. State, 317 Ark. 555, 558, 879 S.W.2d 424, 425 (1994)). There is no requirement that the State offer proof of jurisdiction unless there has been a showing of positive evidence that the offense occurred outside the court's jurisdiction. Smith v. State, 367 Ark. 274, 284, 239 S.W.3d 494, 502 (2006) (citing Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991)); DeWitt v. State, 306 Ark. 559, 561, 815 S.W.2d 942, 943–44 (1991). Positive evidence consists of something allowing the fact-finder to identify, based on the record, where the crime occurred. Dix v. State, 290 Ark. 28, 32, 715 S.W.2d 879, 881 (1986).

Lewis argues that there was insufficient evidence of the circuit court's jurisdiction. He argues that the statutory presumption that jurisdiction is proper in the court where charges are filed "cannot be interpreted in such a way as to relieve the State of proving a fact necessary to constitute the crime, especially when a defendant exercises his constitutional right to remain silent and offer no defense." He points to cases in which our supreme court has discussed evidence supporting a finding that jurisdiction was proper, such as Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978).

In Gardner, a rape was committed in an automobile that traveled from Arkansas to Oklahoma and to Texas:

[W]e might be justified in saying that there is no positive evidence that this alleged offense occurred outside Arkansas (i. e., in Texas). There is substantial evidence that it occurred in Arkansas. There was evidence that the rape occurred while Gardner and the alleged victim . . . were backseat passengers in Gardner's automobile, which was being driven by Lynn Sullivan and in which Finis "Bubba" Toomer was then a frontseat passenger. The automobile had been driven from the victim's home near Foreman, Arkansas to Idabel, Oklahoma. There, according to [the victim], Gardner . . . got in the back seat with her and Toomer, who had been in the back seat, then got in the front seat. From Idabel, the party apparently went into Texas, when the driver missed a turn that would have taken them into Arkansas from Oklahoma.

Id. at 746–47, 569 S.W.2d 74, 77 (1978). The victim testified that the automobile stopped somewhere along the way, and Gardner got into the back seat and performed the acts constituting the rape; she did not know where they were, but she could see the landscape along the highway. Sullivan described a location in Little River County, Arkansas, where he saw the victim and Gardner in the back seat, apparently engaging in sexual intercourse. Our supreme court found that the testimony of the victim and Sullivan constituted substantial evidence to support the trial court's finding that it had jurisdiction. Id. at 747, 569 S.W.2d 74, 78; see also Higgins, 317 Ark. at 557, 879 S.W.2d at 425 ...

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