FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-14-968]
HONORABLE CHARLES E. CLAWSON, JR., JUDGE
C. Self, for appellant.
KENNETH S. HIXSON, Judge
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
Consequently, the attorney general has not filed a brief in
response. We grant counsel's motion to withdraw and
affirm the convictions.
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.
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.
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.
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.
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
Sufficiency of the Evidence
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.
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.
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 ...