654 S.W.3d 802
Ark.2022Background
- Victim (MC) was 11 at trial; Hartley was her mother’s boyfriend and lived in the home.
- MC testified Hartley touched her breasts and genital area, digitally penetrated her (two fingers), tried to insert his penis, and made her hold a small pink vibrator on her vagina, which vibrated and caused pain.
- MC said Hartley told her not to tell anyone and played pornographic movies "pretty much every time he would try and touch" her.
- A SANE examiner documented genital pain and explained penetration of the labia majora counts as penetration.
- A jury convicted Hartley of two counts of rape, second-degree sexual assault, and sexually grooming a child; he received concurrent sentences (two life terms for rape, 20 years, and 6 years).
- Hartley appealed, arguing (1) insufficient evidence for rape and grooming convictions, (2) erroneous exclusion of evidence that MC had prior exposure to pornography, and (3) improper assessment of a cybercrime fee.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Hartley) | Held |
|---|---|---|---|
| Sufficiency — rape (digital penetration) | MC’s testimony that Hartley put two fingers in her vagina proves penetration. | Testimony does not sufficiently prove penetration. | Affirmed — victim’s uncorroborated testimony of digital penetration is substantial evidence. |
| Sufficiency — rape (object/vibrator) | MC’s description of a vibrator placed on her vagina, the vibration, and resulting pain plus SANE testimony about labia majora supports penetration. | Placement on external area insufficient to prove penetration. | Affirmed — circumstantial and medical evidence support penetration of the labia majora. |
| Sufficiency — sexually grooming a child (intent) | MC testified pornography was played almost every time Hartley touched her; jury can infer intent to entice/groom. | Pornography was shown after abuse or by others; intent to entice not proven. | Affirmed — jury reasonably inferred intent from repeated pornographic exposure during abuse. |
| Exclusion under rape‑shield statute | Evidence of prior exposure to pornography was sexual-abuse allegation and properly excluded under A.C.A. § 16‑42‑101. | Prior exposure to pornography is not "sexual conduct" under the rape‑shield statute; exclusion was erroneous. | Court erred to exclude under the statute (Drymon), but exclusion was harmless because the evidence was irrelevant to Hartley’s conduct; no abuse of discretion. |
| Cybercrime fee ($150) | State conceded it did not show specialized cyber investigative resources were used as required by A.C.A. § 5‑4‑706(b)(2). | Fee improper because statutory prerequisites were not met. | Reversed and remanded for corrected sentencing order removing the cybercrime fee. |
Key Cases Cited
- McClendon v. State, 570 S.W.3d 450 (Ark. 2019) (standard for reviewing directed‑verdict/sufficiency; view evidence in light most favorable to State)
- Breeden v. State, 427 S.W.3d 5 (Ark. 2013) (victim’s uncorroborated testimony may support rape conviction)
- Fernandez v. State, 362 S.W.3d 905 (Ark. 2010) (penetration may be proved circumstantially)
- Wright v. State, 644 S.W.3d 236 (Ark. 2022) (intent inferrable from circumstances; jurors may use common knowledge)
- Drymon v. State, 875 S.W.2d 73 (Ark. 1994) (minor’s prior exposure to pornography is not "sexual conduct" under rape‑shield statute)
- M.M. v. State, 88 S.W.3d 406 (Ark. 2002) (evidence must be relevant to the defendant’s conduct to be admissible)
- Walden v. State, 433 S.W.3d 864 (Ark. 2014) (courts may affirm as modified rather than remand when correcting sentencing errors is appropriate)
- Barnett v. State, 598 S.W.3d 835 (Ark. 2020) (appellate court may affirm for right reason even if trial court relied on wrong one)