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Perez v. State

Court of Appeals of Arkansas, Division II

May 25, 2016

JUAN PEREZ APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE MILLER COUNTY CIRCUIT COURT [NO. CR-14-312] HONORABLE KIRK JOHNSON, JUDGE

          Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.

          Leslie 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

         Appellant 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.

         As an 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 46CR-14-183-1.

         In Mr. 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.

         Rule 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 435.

         Because 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.

         Pursuant 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).

         A 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.

         The 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 twenty times.

         K.W. 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."

         Several 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.

         K.W. 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 screaming ...


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