655 S.W.3d 303
Ark.2022Background
- Terry Break was charged (amended multiple times) with 74 counts arising from sexual abuse and images of minors dating from 2005–2019; jury ultimately convicted him on 41 counts (rape, second-degree sexual assault, sexual indecency with a child, engaging a child in sexually explicit conduct for use in visual or print medium, and possession/distribution/viewing of child sexual images).
- Three minor victims (MC 1, MC 2, MC 3) testified about repeated sexual contact, bathing/ showering with defendant, forced oral/anal acts, and that Break photographed them naked.
- Digital-evidence analyst testified about websites accessed from Break’s computer and photographs saved there; the trial court granted directed verdicts on some counts (including one rape count, two witness-intimidation counts, and 30 photo-related charges).
- Break was sentenced to life on each of six rape counts plus an additional 488 years and $425,000 in fines; he appealed alleging (1) insufficiency of evidence, (2) improper closing argument, and (3) excessive sentence.
- The Supreme Court reviewed preservation and sufficiency rules, and affirmed all convictions and sentences, rejecting Break’s arguments as either unpreserved or unsupported.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Break) | Held |
|---|---|---|---|
| Sufficiency of evidence for rape and sexual-assault counts | Victim testimony and supporting evidence (photos, computer evidence) suffice under Arkansas law; credibility is for the jury | Victim testimony lacked corroboration (no DNA/photographs of acts), long delays undermine reliability; argues evidence is only suspicion/conjecture | Affirmed: Break failed to preserve the corroboration/DNA argument; testimony meeting statutory elements supports convictions |
| Sufficiency for sexual-indecency counts | Victim testimony showed purposeful exposure or conduct to arouse gratification; jury may infer intent | Exposure was parental/bathing, not intended to arouse; lack of corroboration | Affirmed: appellate argument shifted to lack of corroboration and was not preserved |
| Sufficiency for photo-based counts (engaging child in sexually explicit conduct; possession/distribution) | Twelve photos qualified as lewd/sexually explicit under statutes; computer evidence ties images to Break | Photos were nude but not sexually explicit conduct (no activity); statute requires more than nudity | Affirmed: Break changed argument on appeal (required activity), issue not preserved; convictions upheld |
| Prosecutor's closing argument quoting Psalm 82 | Closing urged protection of children consistent with public interest and evidence | Quoting scripture to urge conviction is improper | Affirmed: Break did not object at trial, so issue is not preserved |
| Sentencing excessive / cruel and unusual | Sentences imposed under applicable statutes for convictions | Aggregate life + 488 years and large fines cruel and unusual | Affirmed: Break did not object at sentencing; constitutional challenge not preserved on appeal |
Key Cases Cited
- McCray v. State, 2020 Ark. 172, 598 S.W.3d 509 (standard for reviewing sufficiency of the evidence)
- Armstrong v. State, 2020 Ark. 309, 607 S.W.3d 491 (definition of substantial evidence and circumstantial-evidence principles)
- Riley v. State, 2020 Ark. 99 (preservation requirement for directed-verdict/due preservation under Ark. R. Crim. P. 33.1)
- Dominguez v. State, 2020 Ark. 286 (victim testimony alone can support rape conviction when statutory elements met)
- Watson v. State, 2014 Ark. 203, 444 S.W.3d 835 (review considers evidence supporting verdict, even if later found inadmissible)
- Chatmon v. State, 2015 Ark. 28, 467 S.W.3d 731 (distinguishing direct and circumstantial evidence)
- Caple v. State, 2020 Ark. 340, 609 S.W.3d 630 (intent to arouse may be inferred; direct proof not always required)
- Lard v. State, 2014 Ark. 1, 431 S.W.3d 249 (failure to contemporaneously object to closing argument forfeits appellate review)
- Holt v. State, 2011 Ark. 391, 384 S.W.3d 498 (failure to object at sentencing waives appellate challenge, including constitutional claims)