ANDREW LEE WISEMAN, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE HEMPSTEAD COUNTY CIRCUIT COURT [NO. 29CR-14-199-1]
HONORABLE RANDY WRIGHT, JUDGE
Anthony S. Biddle, for appellant.
Rutledge, Att'y Gen., by: Amanda Jegley, Ass't
Att'y Gen., for appellee.
MARK KLAPPENBACH, Judge
Andrew Lee Wiseman was convicted of raping his cousin SW when
she was fourteen years old. Appellant was tried before a jury
in Hempstead County Circuit Court, and he was sentenced to
forty years in prison. Wiseman appeals his conviction,
arguing that the trial court erred in denying his motion for
directed verdict that challenged the sufficiency of the
State's proof of penetration. We affirm.
appeal, the appellate courts treat a motion for directed
verdict as a challenge to the sufficiency of the evidence.
Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214.
The appellate court determines whether the verdict is
supported by substantial evidence, direct or circumstantial.
Id. Substantial evidence is evidence that is
forceful enough to compel a conclusion one way or the other
beyond suspicion or conjecture. Id. The evidence is
viewed in the light most favorable to the verdict, and only
evidence supporting the verdict will be considered.
Starling v. State, 2016 Ark. 20, 480 S.W.3d 158.
Variances and discrepancies in the proof go to the weight or
credibility of the evidence and are matters for the
fact-finder Cite as 2017 Ark.App. 371 to resolve.
Id. The trier of fact is free to believe all or part
of any witness's testimony and may resolve questions of
conflicting testimony and inconsistent evidence. Id.
Accordingly, when there is evidence of a defendant's
guilt, even if it is conflicting, it is for the jury as
fact-finder to resolve, not the court. Id.
a man in his early thirties, was charged with committing rape
against his teenage first cousin SW. The following citations
of Arkansas law are applicable to the appeal before us.
According to Arkansas Code Annotated section
5-14-103(a)(4)(A)(iv) (Repl. 2013), a person commits rape if
he or she engages in sexual intercourse or deviate sexual
activity with another person who is a minor and the defendant
is the victim's first cousin. Arkansas Code Annotated
section 5-14-101(11) defines "sexual intercourse"
as "penetration, however slight, of the labia majora by
a penis." A rape victim's testimony may constitute
substantial evidence to sustain a conviction for rape, even
when the victim is a child. Brown v. State, 374 Ark.
341, 288 S.W.3d 226 (2008). The rape victim's testimony
need not be corroborated, nor is scientific evidence
required. Id. More particularly, testimony of the
victim that shows penetration is enough for conviction.
Kelley v. State, 375 Ark. 483, 292 S.W.3d 297
following is an examination of evidence presented at this
jury trial,  viewed in the Cite as 2017 Ark.App. 371
light most favorable to the jury's verdict. SW was
sixteen years old at the time of trial. She testified for the
State. SW described going to appellant's house for a
family barbecue on Sunday, July 6, 2014. SW said that at some
point she went to use the bathroom, and as she was pulling up
her clothing, appellant came into the bathroom. Appellant
then forced himself on SW, stating that he "had been
waiting to get at [her] for the longest[.]" SW said that
she understood what sexual intercourse was, that appellant
put his penis in her vagina and moved continually, and that
it hurt. She said that appellant told her not to tell anyone
and that he would buy her a phone. When he was done, SW
cleaned herself with tissue and saw a little blood and
"clear stuff" on the tissue. SW was scared and
shaken by the experience; she did not report the rape
immediately. When she did report that she had been raped, she
at first said it was her stepfather who had done it, and she
gave other particular details that were untrue. SW
subsequently identified her cousin, appellant, as the person
who had raped her. SW admitted at trial that she had lied at
first, but she did not have an explanation for why she had
lied. SW positively identified appellant in open court as the
person who had raped her at the barbecue at his house.
evidence at trial also included the testimony of
state-crime-laboratory personnel (a forensic serologist and
an expert forensic DNA analyst) who confirmed that testing of
a swab taken from inside SW's vagina during a
sexual-assault examination conducted on July Cite as 2017
Ark.App. 371 8, 2014, revealed the presence of sperm. The DNA
testing identified appellant as the source of that DNA within
all scientific certainty. SW's stepfather was excluded as
a contributor to this DNA sample.
enforcement officer testified that SW was incoherent and did
not make much sense when she was first interviewed on July 8;
she was slow to answer and seemed disoriented. It was at this
interview that SW identified her stepfather as the
perpetrator. However, at the second interview conducted on
July 14, the officer said that SW made much more sense, was
coherent, and was "clear eyed and focused." It was
at this interview that SW identified appellant as the man who
had raped her, denying that it was her stepfather.
end of the State's case, appellant's attorney moved
for directed verdict arguing that the State had failed to
prove that appellant penetrated SW for purposes of the rape
statute. The trial court denied the motion.
took the stand and denied the allegations, stating that he
and his girlfriend had sexual intercourse immediately prior
to the barbecue. Appellant also stated that there was no
toilet tissue in his bathroom, so he had to go to the store
to buy some during the party. Appellant's girlfriend
corroborated appellant's version of events, stating that
she and appellant had sexual intercourse before the barbecue,
that she then used a towel in the bathroom to clean herself,
and then she left that towel in the bathroom.
the defense's case, defense counsel renewed the motion
for directed verdict, which was denied. The jury found
appellant guilty of rape, resulting in the conviction and
Cite as 2017 Ark.App. 371 sentence that appellant now
argues that SW had lied and was not credible, such that his
conviction is not supported by sufficient evidence. We
disagree. Any inconsistencies in SW's testimony were for
the jury to resolve; it is not an issue for the appellate
court. Allen v. State, 2016 Ark.App. 537, 506 S.W.3d
278. The uncorroborated testimony of a rape victim that shows
penetration is sufficient evidence for a rape conviction.
Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008).
While a rape victim's testimony need not be corroborated
by forensic evidence, additional evidence was introduced
during trial that supported SW's testimony. Semen was
found inside SW's vagina, and the forensic DNA analyst
gave expert testimony that established, within all scientific
certainty, that ...