FROM THE MILLER COUNTY CIRCUIT COURT [NO. CR-14-312]
HONORABLE KIRK JOHNSON, JUDGE
Phillip A. McGough, P.A., by: Phillip A. McGough, for
Rutledge, Att'y Gen., by: Rachel Kemp, Ass't
Att'y Gen., and Garrett Morgan, Law Student Admitted to
Practice Pursuant to Rule XV of the Rules Governing Admission
to the Bar of the Supreme Court under the Supervision of
Darnisa Evans Johnson, Deputy Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge
Juan Perez was convicted of three counts of rape committed
against K.W., who was ten or eleven years old when the
offenses were committed. Mr. Perez was sentenced to three
concurrent twenty-five-year prison terms. On appeal, Mr.
Perez argues that the trial court erred by failing to grant
his motion for directed verdict because there was
insufficient evidence that he committed the crimes.
initial matter, we observe that Mr. Perez's argument on
appeal also purports to challenge the sufficiency of the
evidence supporting an additional rape conviction committed
against nine-year-old G.K. The charges involving K.W. were
assigned case number 46CR-14-312-1, and the charge involving
G.K. was given case number 46CR-14-183-1, and the two cases
were tried together. However, there were two separate
sentencing orders entered by the trial court. The sentencing
order in case number 46CR-14-312-1 is included in the record
on appeal; the sentencing order in case number 46CR- 14-183-1
is not. The sentencing order that is before this court on
appeal provides that the three concurrent sentences in
46CR-14-312-1 shall run consecutive with the sentence in
Perez's notice of appeal, he indicated only that he was
appealing from his convictions in case number 46CR-14-312-1,
which he identified as three convictions for which he was
sentenced to 300 months in prison. The notice of appeal makes
no mention of case number 46CR-14-183-1, nor does it
otherwise identify the conviction arising out of that case.
2(a) of the Arkansas Rules of Appellate Procedure provides in
part that "the person desiring to appeal a circuit court
judgment or order or both shall file with the clerk of the
circuit court a notice of appeal identifying the parties
taking the appeal and the judgment or order or both being
appealed." A notice of appeal must designate the
judgment or order appealed from, and an order not mentioned
in the notice of appeal is not properly before an appellate
court. Todd v. State, 2015 Ark.App. 356, 465 S.W.2d
Mr. Perez's notice of appeal does not designate the
sentencing order in case number 46CR-14-183-1 or otherwise
identify his conviction in that case, he has taken no appeal
from that order. Therefore, our review is limited to the
three rape convictions involving K.W. in case number
46CR-14-312-1, from which Mr. Perez has appealed and claims
there was insufficient evidence.
to Arkansas Code Annotated section 5-14-103(a)(3) (Repl.
2013), a person commits rape if he engages in sexual
intercourse or deviate sexual activity with another person
who is less than fourteen years of age. "Deviate sexual
activity" means any act of sexual gratification
involving the penetration, however slight, of the anus or
mouth of a person by the penis of another person. Ark. Code
Ann. § 5-14-101(1)(A) (Repl. 2013).
motion for a directed verdict is a challenge to the
sufficiency of the evidence. Steele v. State, 2014
Ark.App. 257, 434 S.W.3d 424. When sufficiency is challenged
on appeal from a criminal conviction, we consider only that
proof that supports the verdict. Davis v. State,
2015 Ark.App. 234, 459 ___ S.W.3d 821 ___. We view that
evidence and all reasonable inferences deducible therefrom in
the light most favorable to the State. Draft v.
State, 2016 Ark.App. 216 S.W.3d . We will affirm if the
finding of guilt is supported by substantial evidence.
Id. Evidence is substantial if it is of sufficient
force and character that it will, with reasonable certainty,
compel a conclusion one way or the other without requiring
resort to speculation or conjecture. Id. The weight
of the evidence and credibility of the witnesses are matters
for the fact-finder, not for the trial court on a
directed-verdict motion or this court on appeal. Simpkins
v. State, 2010 Ark.App. 723.
victim, K.W., testified that he lived in the same
neighborhood as Mr. Perez. Mr. Perez was friends with
K.W.'s older brother. K.W. testified that, when he was
ten or eleven years old, Mr. Perez molested him more than
gave detailed accounts of several of the specific incidents.
He testified that, the first time it happened, he was walking
with his brother and Mr. Perez wanted to show him
"something cool" and took him out to the woods.
After talking to K.W. about sex, Mr. Perez threw K.W. to the
ground and pulled down his pants and underwear. According to
K.W., Mr. Perez then used some kind of liquid, put on a
condom, and "put his pee-pee inside me" while Mr.
Perez held his hand over K.W.'s mouth. K.W. wanted to
tell someone what had happened, but testified, "I was
scared because I didn't know what could've happened
if I snitched."
more incidents followed. K.W. testified that, on one
occasion, Mr. Perez lured K.W. into his house and had anal
sex with K.W. on his bed. On another occasion, Mr. Perez made
K.W. give him oral sex behind a shed. Two more incidents of
anal sex occurred when Mr. Perez molested K.W. on some old
bleachers and then again out in the woods. K.W. stated that,
after some of these incidents, Mr. Perez would give him gifts
such as hats or necklaces. K.W. testified that the assaults
finally ended when he refused to go outside anymore.
stated that he did not disclose these assaults to anyone
until he and G.K. had gotten into trouble after getting
caught filming two little girls with their pants down. As
K.W. was being questioned about that incident, he
"blurted out that [he] was molested by Juan and [he] was