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McPherson v. State

Court of Appeals of Arkansas, Division IV

October 4, 2017

JAMES LEE MCPHERSON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-14-968] HONORABLE CHARLES E. CLAWSON, JR., JUDGE

          Joseph C. Self, for appellant.

         One brief only.

          KENNETH S. HIXSON, Judge

         Appellant was convicted by a Faulkner County jury of three counts of rape and was sentenced to serve a total of 900 months' imprisonment. Appellant's attorney had previously filed a no-merit brief and a motion to withdraw as counsel pursuant to Arkansas Supreme Court Rule 4-3(k) (2016) and Anders v. California, 386 U.S. 738 (1967). Because of briefing deficiencies, we previously ordered rebriefing. See McPherson v. State, 2017 Ark.App. 21. Counsel has filed the instant no-merit brief, correcting those deficiencies, and asserting that this appeal is wholly without merit. The motion is accompanied by an abstract and addendum of the proceedings below, alleged to include all objections and motions decided adversely to appellant, and a brief in which counsel explains why there is nothing in the record that would support an appeal. The clerk of this court mailed a copy of counsel's motion and brief to appellant's last-known address informing him of his right to file pro se points for reversal; however, he has not done so.[1] Consequently, the attorney general has not filed a brief in response. We grant counsel's motion to withdraw and affirm the convictions.

         Appellant was charged with three counts of rape involving a victim that was less than fourteen years of age, and a trial was held on August 11, 2015. At trial, M.R. (DOB 11-15-2000) testified that appellant had raped her. M.R. explained that she had been friends with appellant's daughters. Appellant had flirted with her, kissed her, and inappropriately touched her while she was at his home on July 4, 2014. A couple of weeks later, appellant started talking with her through Kik and Snapchat. After appellant texted her and instructed her to meet up with him at his truck at approximately 1:00 in the morning on August 18, 2014, M.R. complied and had vaginal sex with appellant inside his truck. M.R. testified that she was thirteen years old at that time. M.R. further testified that appellant had threatened to tell her parents and blame her for everything if she did not continue to "do things with him." M.R. testified that two weeks after the first incident, appellant and she had oral sex in his truck. They again had vaginal sex at the end of September 2014 or beginning of October 2014. M.R.'s mother eventually found the phone that M.R. had been using to communicate with appellant. The Snapchat messages were admitted into evidence over appellant's objection.

         Detective Brian Williams testified that he had examined M.R.'s phone and that he had found the communications that M.R. had with appellant on both Kik and Snapchat.

         Officer John Randall, the jail administrator for the Faulkner County Sheriff's Department, testified that he had a CD of the recorded phone calls that appellant made while in jail. Officer Randall identified appellant's birth date and testified that he had located a series of jail calls that were unique to appellant's PIN and captured them on a CD. The CD containing the recorded calls was admitted over appellant's objection. Furthermore, a list of the calls was also introduced over appellant's objection.

         Lisa Raymond, M.R.'s mother, testified that she was familiar with both appellant and appellant's wife. She additionally testified that she was familiar with their voices. A recorded call between appellant and his youngest daughter was played for the jury. In that call, appellant admitted that he had sex with M.R. three times in his work truck. In another recorded call between appellant and his wife, appellant admits that he had sex with M.R. three times. In yet another recorded call, appellant states that he knew he was 100 hundred percent guilty.

         After the State rested its case, appellant moved for a directed verdict. The trial court denied appellant's motion. After all evidence was presented, appellant renewed his motion for directed verdict, and the trial court denied his motion. The jury found appellant guilty of three counts of rape and recommended that he be sentenced to serve twenty-five years' imprisonment on each count to be served consecutive, which the trial court imposed. This appeal followed.

         I. Sufficiency of the Evidence

         A motion for a directed verdict is a challenge to the sufficiency of the evidence. Hinton v. State, 2015 Ark. 479, 477 S.W.3d 517. When reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Id. The sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007); Boyd v. State, 2016 Ark.App. 407, 500 S.W.3d 772. Substantial evidence is evidence which is of sufficient force and character that will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Hinton, supra. Finally, the credibility of witnesses is an issue for the jury and not the court. 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.

         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. Ark. Code Ann. § 5-14-103(a)(3) (Repl. 2013). "Sexual intercourse" is penetration, however slight, of the labia majora by a penis. Ark. Code Ann. § 5-14-101(11). "Deviate sexual activity" is defined as any act of sexual gratification involving (A) the penetration, however slight, of the anus or mouth of a person by the penis of another person; or (B) the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Ark. Code Ann. § 5-14-101(1).

         Here, the victim testified that appellant had sex with her and that she was under the age of fourteen at the time. A rape victim's uncorroborated testimony describing penetration may constitute substantial evidence to sustain a conviction of rape, even when the victim is a child. Breeden v. State, 2013 Ark. 145, 427 S.W.3d 5. The rape victim's testimony need not be corroborated, and scientific evidence is not required. Id. Furthermore, appellant admitted that he was guilty of three counts of rape in recorded telephone calls made from jail. It is the function of the jury, and not the reviewing court, to evaluate the ...


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