Perea v. State

          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-17-292] HONORABLE BRAD KARREN, JUDGE.

          Tara Ann Schmutzler, for appellant.

          Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, JUDGE.

         A Benton County jury convicted appellant Mario Lopez Perea, Jr., of attempted second-degree sexual assault, and he was sentenced as a habitual offender to twenty years' imprisonment. Perea argues that the trial court erred in denying his directed-verdict motion. We affirm his conviction.

         I. Procedural History

         Appellate counsel initially filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k); however, this court denied counsel's motion to withdraw and ordered rebriefing due to deficiencies in the abstract, addendum, and brief. Perea v. State, 2019 Ark.App. 322. The case has returned to us as a merit brief in which Perea argues that the State failed to prove two elements of attempted sexual assault in the second degree.^[1]

         II. Trial Testimony

         On February 6, 2017, then sixteen-year-old L.S. was dropped off by the school bus near her home when she was approached by Perea. According to L.S., Perea had passed her in his red Dodge Challenger, turned his car around, and pulled his car into a neighbor's driveway. L.S. said that Perea waved to her. L.S., thinking that she might know him or that he was lost, went to speak with him. She said that Perea got out of his car, introduced himself, and asked for her name. Perea then told her that he was not a bad person. He asked several things: her age, whether she was a good girl, and whether her parents were home. She said that Perea then hugged her by putting his right arm on her shoulder and touched her "private spot," meaning her vagina, with his left hand. L.S. testified that she did not ask Perea to touch her private spot. She testified that she pushed Perea's hand away and told him to stop. L.S. further testified that Perea asked her whether she drank alcohol, whether she wanted to experiment with him, and whether she wanted to take a ride downtown. L.S. testified that Perea then tried to lift her shirt but that she stopped him and said that she heard her mother calling her. According to L.S., Perea said okay and walked away.

         L.S.'s grandfather, Norman Fisher, and her mother, Gina Horton, testified. The State also presented the testimony of Justin Crane, a deputy with the Benton County Sheriff's Office. David Undiano, a sergeant working with cybercrimes in the Internet Crimes Against Children Division in Benton County, testified that he interviewed L.S. a couple of days after the incident. He stated that he retrieved videos of Perea's car in the vicinity of L.S.'s school bus. Nanonna Corderio, a detective with the criminal-investigations unit, assisted Undiano with interviewing Perea, and a video of the interview was played for the jury.^[2]

         Trial counsel made the following directed-verdict motion at the close of the State's case:

At this time I move for a directed verdict on the sole count of sexual assault in the second degree on the basis the State did not make a prima facie showing on each element of the charge.

First, they have not established there was a forcible touching by defendant. I believe the case law and the definition of touching requires there be some force, more than touching. There actually has to be some force or threat of force in order to have the touching of her. I don't believe they had any testimony that would meet that particular definition.

Also, I don't believe that the State has established in this particular case there was sexual contact. She admits that she was touched that there [sic] or testified that she was touched there but she has not indicated the type of touching that occurred. She apparently testified that she blacked out exactly the manner in which she was touched there. You know touched is it could have been a grace [sic], it could have been anything. She just doesn't remember exactly how she was touched there. And so without that description ...