Wingfield v. State

          APPEAL FROM THE HEMPSTEAD COUNTY CIRCUIT COURT [NO. 29CR-17-329] HONORABLE RANDY WRIGHT, JUDGE

          Hancock Law Firm, by: Charles D. Hancock, for appellant.

          Leslie Rutledge, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

          BRANDON J. HARRISON, JUDGE

         David Wingfield appeals his convictions for rape and second-degree sexual assault, arguing that the circuit court erred in (1) denying his motion for directed verdict, (2) denying his motion to suppress, and (3) admitting a report prepared by the sexual-assault nurse examiner who examined the victim. We affirm.

         In a criminal information filed in September 2017, Wingfield was charged with four counts of rape and five counts of second-degree sexual assault. Wingfield was also charged as a habitual offender. The attached affidavit for an arrest warrant explained that police had been contacted after the twelve-year-old victim, JB, told her aunt that her mother's boyfriend, Wingfield, had been having sex with her. After a jury trial, Wingfield was found guilty of all counts and sentenced to an aggregate term of eighty-five years' imprisonment. Specific facts pertinent to each point on appeal will be discussed below.

         I. Sufficiency

         Wingfield's sufficiency argument is his third argument on appeal, but because of double-jeopardy concerns, we consider challenges to the sufficiency of the evidence before addressing other arguments. Gillean v. State, 2015 Ark.App. 698, 478 S.W.3d 255. This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. See Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. The credibility of witnesses is an issue for the jury and not the court. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. 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.

         At trial, the State introduced the following pertinent evidence in support of the verdict:

         Sergeant Jesus Coronado testified that he specializes in cases of sexual abuse and rape involving children. He initiated an investigation into the allegations against Wingfield and, as part of that investigation, scheduled an interview of JB at the Children's Advocacy Center in Texarkana. Jessica Kelly interviewed JB while Coronado observed on a closed-circuit television. Coronado also requested a SANE exam, which is a physical examination performed by a certified sexual-assault nurse examiner. Coronado interviewed Wingfield at the Hope Police Department and asked if he would consent to a voice-stress-analysis (VSA) test. Coronado requested that the prosecutor's office prepare a "voice stipulation," which is an agreement that the results of the VSA can be used in court.

         Jessica Kelly, the lead forensic interviewer at the Texarkana Children's Advocacy Center, testified that she interviewed JB and that JB had disclosed that she had been sexually abused.

         Brandi Wilson, a registered nurse, testified that in July 2017 she was working at the Children's Advocacy Center as a SANE nurse. Wilson performed a SANE exam on JB, which included collecting information on JB's medical history and assault history. Wilson read from her written report the information as given by JB regarding her assault history: "It was day and night time, he touched me with his hands on my private area. He pulled my clothes off and he pulled his down." According to Wilson, JB mumbled and was hard to understand at times; she was more comfortable pointing to body parts that had been labeled on a drawing of male and female bodies.

         Andrew Watson, a former Hope Police Department detective, testified that he was the certified VSA examiner for the department in July 2017 and that he administered a VSA on Wingfield. Watson explained that he asked two questions in particular about the allegations: (1) Have you touched [JB]'s vagina, and (2) have you put your penis inside [JB]'s vagina. According to Watson, Wingfield did not respond truthfully and "showed to be deceptive on them."

         JB testified that she is twelve years old and that Wingfield had been her mother's boyfriend and had lived with them. She agreed that Wingfield had touched her body in ways she did not like, that he had touched her with different parts of his body, and that it had made her uncomfortable. She indicated that he had touched her breasts and between her legs and that his private part had gone inside her private part. She also said that Wingfield had licked her breasts and her private part. JB stated that this activity had started when she was six or seven and continued until she was twelve. She identified Wingfield in the courtroom.

         Wingfield moved for a directed verdict, arguing that "there's no proof of sexual intercourse or sexual deviate activity of [sic] penetration." He also asserted that the State had not met its burden for all five second-degree sexual-assault charges. The court found

There are five and six, there's at least two touching of the breast, seven, eight and nine, sexual assault that was-I mean a jury could say that based upon what was presented a trier of fact could look and determine that for whatever reason sexual contact as opposed to sexual, deviate sexual activity or sexual intercourse. I mean there was contact and she said it happened in more than one house over more than one time at each of those houses. Then she said this had been happening since she was six or seven, nine, ten and eleven. That's what the evidence says. That will be up to the trier of fact determined but I believe the State has met its burden of going forward at this point.

         After the defense presented its case, the directed-verdict motion was renewed and again denied.

         On appeal, Wingfield makes several arguments: (1) JB's testimony was not clear or consistent; (2) there was no evidence that Wingfield was JB's guardian, temporary caretaker, or a person in a position of trust or authority over her; and (3) the jury had to speculate to distinguish nine separate offenses of rape or second-degree sexual assault. Of these arguments, the only one arguably preserved for our review is that the State failed to prove five separate instances of second-degree sexual assault. The remainder of Wingfield's arguments were not raised to the circuit court, and issues raised for the first time on appeal will not be considered. See Chavez v. State, 2018 Ark.App. 527, 564 S.W.3d 268.

         A person commits the offense of second-degree sexual assault if he or she engages in sexual contact with a minor and is the minor's guardian, temporary caretaker, or a person in a position of trust or authority over the minor. See Ark. Code Ann. § 5-14-125(4)(A)(iv) (Supp. 2017). Sexual contact is defined as "any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female." Ark. Code Ann. § 5-14-101(11). Wingfield asserts that JB did not recount separate and ...