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APPEAL
FROM THE HEMPSTEAD COUNTY CIRCUIT COURT [NO. 29CR-17-329],
HONORABLE RANDY WRIGHT, JUDGE
Hancock
Law Firm, Little Rock, by: Charles D. Hancock, for appellant.
Leslie
Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for
appellee.
OPINION
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
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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
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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 ...