RALPH A. KING APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE ASHLEY COUNTY CIRCUIT COURT [NO. 02CR-17-7]
HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE
Law Office, by: Gary W. Potts, for appellant.
Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't
Att'y Gen., for appellee.
J. GLADWIN, Judge.
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.
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.
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"
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.
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.
Sufficiency of the Evidence
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.
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.
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).
the State rested its case, appellant moved to dismiss the
rape charge against ...