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Lowe v. State

Court of Appeals of Arkansas, Division I

September 14, 2016

BRIAN LOWE APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE GREENE COUNTY CIRCUIT COURT [NO. CR-2014-327] HONORABLE BARBARA HALSEY, JUDGE

          Terry Goodwin Jones, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, Chief Judge

         Appellant, 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.

         On May 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).

         At the 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.

         Appellant 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.[1] 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.

         I. Denial of Motion to Dismiss

         A 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 ___.

         Arkansas 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. § 5-14-101(1)(A).

         Appellant 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 mouth.

         Appellant 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.

         We hold 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.

         In 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 ...


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