FROM THE GREENE COUNTY CIRCUIT COURT [NO. CR-2014-327]
HONORABLE BARBARA HALSEY, JUDGE
Goodwin Jones, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
J. GLADWIN, Chief Judge
Brian Lowe, files this appeal from the September 9, 2015
sentencing order entered by the Greene County Circuit Court,
pursuant to which he was sentenced to twenty-five years in
the Arkansas Department of Correction (ADC) on a conviction
by the trial court on a charge of rape, a Class Y felony. He
argues that the trial court erred in failing to grant his
motion to dismiss on the basis that the penetration element
of rape was not proven and that it abused its discretion in
finding his testimony not credible. We affirm.
23, 2014, appellant was arrested and interviewed by Paragould
Police Department Detective Rhonda Thomas based on
allegations brought by B.B., a six-year-old juvenile who
lived next door to appellant. The juvenile alleged that on
May 22, 2014, appellant had made the juvenile stroke his
penis and that appellant made the juvenile engage in oral
sex. Appellant was charged on July 17, 2014, by felony
information with one count of rape, a Class Y felony, in
violation of Arkansas Code Annotated section
5-14-103(a)(3)(A) (Repl. 2013).
bench trial held on September 9, 2015, B.B. testified without
objection that appellant made the juvenile stroke his penis
and perform oral sex on him in the bathroom and that
appellant put his mouth on the juvenile's penis in the
bedroom. Detective Thomas and C.B., B.B.'s older brother,
also testified on behalf of the State. The video of Detective
Thomas's interview with appellant was played, and she
confirmed that appellant's statement corroborated
everything in the juvenile's interview regarding the
allegations except for the alleged acts of oral sex.
testified on his own behalf, acknowledging manual contact by
the juvenile on his genitals, but he again denied the
allegations regarding oral sex with the juvenile. At the
close of the bench trial, appellant moved for dismissal of
the rape charge on the ground that the juvenile never
testified that the penis had ever passed his lips or that
oral sex had occurred. The trial court (1) denied the motion; (2)
made a finding that the juvenile's testimony was credible
and that appellant's testimony was not credible; and (3)
ruled that the juvenile's uncorroborated testimony was
sufficient to support the determination that the elements of
oral sex and penetration had been satisfied. The trial court
also specifically found that the defense was correct in
saying that when the juvenile talked about the incident that
occurred in the bedroom he used the word "touched."
The trial court found that, based on the totality of the
circumstances coupled with the credibility of the witnesses,
appellant was guilty of rape, and he was sentenced pursuant
to the September 9, 2015 sentencing order to a term of
twenty-five years in the ADC. A timely notice of appeal was
filed on October 5, 2015.
Denial of Motion to Dismiss
motion to dismiss at a bench trial is a challenge to the
sufficiency of the evidence. Oliver v. State, 2016
Ark.App. 332, ___ S.W.3d ___; Tennant v. State, 2015
Ark.App. 81. On appeal, this court reviews the evidence in
the light most favorable to the State, considering only the
evidence that supports the conviction. Toombs v.
State, 2015 Ark.App. 71. This court will affirm a
conviction if there is substantial evidence to support it,
which is evidence of sufficient force and character that it
will compel a conclusion with reasonable certainty.
Id. Determinations of credibility and the weight of
the evidence are matters for the trier of fact. Id.
The trier of fact is free to believe all or part of a
witness's testimony and may resolve questions of
conflicting testimony and inconsistent evidence. Id.
The uncorroborated testimony of a child-rape victim is
sufficient evidence to sustain a conviction. Matar v.
State, 2016 Ark.App. 243, ___ S.W.3d ___.
Code Annotated section 5-14-103(a)(3)(A) provides that
"[a] 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." "Deviate
sexual activity" is defined, in pertinent part, as
"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. §
argues that the trial court erred by failing to grant his
motion to dismiss. Specifically, he argues that the evidence
is insufficient to support his conviction because the victim
did not testify that appellant's penis penetrated his
argues that the juvenile's testimony never reached the
definition of deviate sexual activity found in section
5-14-101, under which appellant was charged, specifying that
"penetration, however slight, of the anus or mouth of
one person by the penis of another person." Appellant
specifically requested in his motion for dismissal that the
trial court note that the juvenile had used the word
"touched" to reference the alleged act and the
juvenile's testimony that he "put my mouth on
it." Appellant submits that the testimony did not prove
that his penis entered the juvenile's mouth, however
slightly. He claims that there was no corroborating evidence
given by any witness to substantiate the definition of
deviate sexual activity.
that substantial evidence supports appellant's conviction
for rape. The juvenile's testimony was sufficient for the
trial court to find that deviate sexual activity had occurred
when the juvenile put his mouth on appellant's penis
while in the bathroom. And, contrary to the trial court's
recollection in its ruling of the juvenile's testimony
regarding the incident in the bedroom, the juvenile
specifically testified that appellant had put his mouth on
the juvenile's penis while in the bedroom, not that he
had merely touched it.
Henderson v. State, 2012 Ark.App. 485, a minor
victim testified that Henderson had pushed her head
"down on his penis, " that his penis had touched
her lips, and that he had tried to push it farther into her
mouth but could not do so because she was clenching her
teeth. Henderson argued that the State ...