Shaun ALLEN, Appellant v. STATE of Arkansas, Appellee
No. CR-16-218
Court of Appeals of Arkansas, DIVISION III.
Opinion Delivered: November 9, 2016
2016 Ark. App. 537
TRIAL COURT: Do you wish to represent yourself tomorrow?
WHITLOW: If I can‘t get [Ms.] Bloodman, yeah.
TRIAL COURT: I‘m asking you for a yes or no answer. Do you wish to represent yourself tomorrow?
WHITLOW: I wish to get [Ms.] Bloodman, but she will come. But if I have to choose between Ron Davis or myself, I choose myself. But I‘m telling you, I can get in contact with her.
We recognize that the trial court conducted an exhaustive inquiry before ruling that Whitlow could not competently represent himself because he did not know trial procedure and previously had been disruptive. Whitlow then announced that Ms. Bloodman would be there the next morning. The trial court told Whitlow that if Ms. Bloodman appeared, she could try the case, and Mr. Davis could leave. Whitlow insisted that Mr. Davis would not represent him, but the trial court told him that Mr. Davis would remain on the case. Whitlow replied that he would speak with Ms. Bloodman and “handle it from there.”
It is undisputed that Ms. Bloodman did not appear for trial the next day and that Mr. Davis represented Whitlow throughout the trial and on appeal. Whitlow never commented further about wanting Ms. Bloodman to represent him, and he never asked that Mr. Davis be relieved or that he be allowed to represent himself. Instead of making an unequivocal request to represent himself, Whitlow said he wanted another attorney, specifically, Ms. Bloodman, to represent him at trial. His statements about representing himself were couched more in terms of preferring to do so rather than having Mr. Davis represent him. Up until the end of the discussion at the hearing the day before trial, Whitlow continued to assert that he wanted Ms. Bloodman to represent him.
In Jarrett, 371 Ark. at 104-05, 263 S.W.3d at 542, our supreme court held that “a request to proceed pro se is not an unequivocal request if it is an attempt on the part of the defendant to have another attorney appointed.” Jarrett had expressed his “extreme displeasure” with his attorney, but his displeasure “did not amount to an unequivocal request to take responsibility, be held accountable, and proceed pro se.” Id. at 105, 263 S.W.3d at 542. The same analysis applies here; accordingly, we affirm.
Affirmed.
Abramson and Whiteaker, JJ., agree.
Leslie Rutledge, Att‘y Gen., by: Amanda Jegley, Ass‘t Att‘y Gen., New York, NY, for appellee.
Appellant Shaun Allen was convicted by a Faulkner County jury of two counts of rape. On appeal, he contends that the circuit court abused its discretion and committed reversible error by admitting into evidence prior consistent statements of the victim, M.R. He also argues that the circuit court erred in denying his motions for directed verdict on both counts of rape. We affirm.
A motion for a directed verdict is a challenge to the sufficiency of the evidence, Steele v. State, 2014 Ark. App. 257, 434 S.W.3d 424, and although this is Allen‘s second point on appeal, double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before the other issues on appeal. See Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002).
When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we consider only that proof that supports the conviction. Singleton-Harris v. State, 2014 Ark. App. 436, 439 S.W.3d 720. We view that evidence and all reasonable inferences deducible therefrom in the light most favorable to the State. Davis v. State, 2011 Ark. App. 261, 378 S.W.3d 873. We will affirm if the finding of guilt is supported by substantial evidence. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Clayton v. State, 2011 Ark. App. 692. The jury is free to believe all or part of a witness‘s testimony, and we do not weigh the credibility of witnesses on appeal, as that is a job for the fact-finder and not the appellate court. Sizemore v. State, 2015 Ark. App. 295, 462 S.W.3d 364.
A person commits rape if “he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen (14) years of age.”
Viewing the evidence, as we must, in the light most favorable to the State, the record reflects that Allen is M.R.‘s stepfather‘s brother. Twelve-year-old M.R. testified at trial that Allen “put his middle in my middle.” When asked by the State to clarify what middle part she was talking about, M.R. stated that Allen “put his middle part where he pees from into my middle part where I pee from.” M.R. also testified that she saw both Allen and Ronald White‘s “middle” and that they differed in length and width.1
Allen argued in his motion for directed verdict that M.R. never testified that he put his penis or any other part of his body into her vagina. However, M.R.‘s use and description of the word “middle” demonstrated knowledge of the location of the penis and the vagina on the human body. A child victim‘s use of her own terms for body parts, rather than the correct anatomical terms, is sufficient evidence if it demonstrates a knowledge of what those body parts are and where they are located on the body. Tinsley v. State, 338 Ark. 342, 346, 993 S.W.2d 898, 900 (1999).
When asked by the State what she meant when she said Allen “molested” her, she replied that he “had sex with me.” She then elaborated as to what she meant by having “sex with me,” and replied that Allen “put his middle part where he pees from into my middle part where I pee from.” As noted above, it was established that M.R.‘s terms “his middle” refers to Allen‘s penis and “my middle” refers to M.R.‘s vagina.
While a rape victim‘s testimony need not be corroborated by forensic evidence, additional evidence was introduced during trial that supported her testimony. Semen was found on M.R.‘s panties, and forensic DNA analyst Sarah Stoeckel gave expert testimony that established, within all scientific certainty, that the DNA on the panties belonged to Allen.
M.R.‘s testimony, corroborated by forensic expert testimony, is more than substantial evidence to show that Allen raped her. The jury was not required to resort to speculation or conjecture in reaching its verdicts. Accordingly, we affirm.
Allen‘s argument that the circuit court abused its discretion by admitting M.R.‘s prior consistent statements is not preserved for our review. Trial courts are afforded wide discretion in evidentiary rulings, and an appellant must demonstrate an abuse of discretion resulting in prejudice to justify reversal. McCoy v. State, 354 Ark. 322, 123 S.W.3d 901 (2003). Allen argues that the circuit court erroneously allowed a hearsay statement under the prior-consistent-statement exception.
For the foregoing reasons, we affirm.
Affirmed.
Gladwin, C.J., and Whiteaker, J., agree.