Page 691
APPEAL
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-17-292],
HONORABLE BRAD KARREN, JUDGE
Tara
Ann Schmutzler, for appellant.
Leslie
Rutledge, Atty Gen., by: Adam Jackson, Asst Atty Gen., for
appellee.
OPINION
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, 87 S.Ct. 1396,
18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule
4-3(k); however, this court denied counsels motion to
withdraw and ordered rebriefing due to deficiencies in the
abstract, addendum, and brief. Perea v. State, 2019
Ark.App. 322, 2019 WL 2365017. 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]
Page 692
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 neighbors 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 Pereas 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 Sheriffs 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 Pereas 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 States 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 ...