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King v. State

Court of Appeals of Arkansas, Division IV

May 16, 2018



          Potts Law Office, by: Gary W. Potts, for appellant.

          Leslie Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, Judge.

         Appellant Ralph King appeals his conviction by an Ashley County jury on a lesser-included offense of sexual assault in the second degree (stemming from a rape charge) for which he was sentenced to twenty years' imprisonment in the Arkansas Department of Correction (ADC). Appellant challenges the sufficiency of the evidence, arguing that no evidence of the element of penetration was introduced and that the trial court abused its discretion when it allowed the victim's recorded testimony to be replayed to the jury during deliberations. We affirm.

         Appellant was arrested and charged with one count of rape, a Class Y felony. At trial, the victim, J.D., stated that she is eight years old and in the second grade. She testified that appellant is her "Papaw." She explained that on November 12, 2016, she spent the night at the home of her uncle, Josh King, with his daughter, R.K.; his wife, Leslie Huff; Leslie's daughter, J.H.; and her Papaw. J.D. said that she was asleep in the living room when appellant woke her up and took her into the room that J.H. and R.K. shared. J.D. testified that appellant put his private part in her mouth and put his finger in her private part.

         R.K. testified that she is twelve years old and in the seventh grade. She explained that appellant is her grandfather. She corroborated J.D.'s testimony regarding the sleepover at her dad's, Josh King's, house to celebrate her stepsister's birthday. R.K. described how the next morning when she walked in a room, she saw appellant standing in front of J.D., who was sitting in a chair, guiding her hand toward his "private place." Appellant's zipper was down, and she saw "a couple inches of" his penis.

         Kevin Sontag, a forensic serologist from the Arkansas State Crime Lab (ASCL), testified that he had analyzed several items submitted to him related to J.D., including the underwear J.D. had worn the morning of the incident. Sontag testified that as part of his examination, he had performed tape lifts from the inside of the underwear, which were then submitted to the DNA section for testing. Julie Butler, a forensic DNA analyst for the ASCL, also testified that she had examined the tape lifts from the inside of J.D.'s underwear and had found DNA matching both J.D. and appellant.

         Defense counsel timely moved for a directed verdict at the end of the State's case-in-chief and at the end of the presentation of evidence. The trial court denied the motions, and the jury returned a verdict of guilty on the lesser-included offense of second-degree sexual assault, a Class B felony. He was sentenced by the jury to twenty years in the ADC. Appellant filed a timely notice of appeal on September 29, 2017.

         I. Sufficiency of the Evidence

         A motion for a directed verdict is a challenge to the sufficiency of the evidence. McPherson v. State, 2017 Ark.App. 515, 532 S.W.3d 96. 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. Id. Substantial evidence is evidence that 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. Id. 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.

         Appellant argues that, even viewed in the light most favorable to the State, the trial court erred in denying his timely motions for directed verdict on the count of rape and in finding that there was sufficient evidence to present the matter to the jury. In his directed-verdict motions, appellant argued that the State never elicited from J.D. her definition of "private part." He maintains that this vague terminology is insufficient to fulfill the statutory requirement that a conviction for rape requires proof of penetration of a victim's mouth or anus by a penis or of her labia majora or anus by a body member. See Ark. Code Ann. § 5-14-103(a)(3) (Repl. 2013); Ark. Code Ann. § 5-14-101(11) (Repl. 2013). He submits that the State failed to elaborate, by any form of evidence, to prove the necessary element of penetration.

         We hold that appellant's sufficiency challenge is not preserved for appellate review. A directed-verdict motion is a challenge to the sufficiency of the evidence and requires the movant to apprise the circuit court of the specific basis on which the motion is made. See, e.g., Rounsaville v. State, 372 Ark. 252, 256, 273 S.W.3d 486, 490 (2008). Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. See id. In order to preserve a challenge to the sufficiency of the evidence supporting a conviction for a lesser-included offense, a defendant must address the lesser-included offense either by name or by apprising the trial court of the specific elements questioned by the motion for directed verdict. E.g., Davis v. State, 362 Ark. 34, 38, 207 S.W.3d 474, 478 (2005).

         After the State rested its case, appellant moved to dismiss the rape charge against ...

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