Green v. StateGreen v. State
Appellant was convicted by jury of committing sexual abuse in the first degree and sentenced to six years imprisonment. He argues, through new, substituted counsel on appeal, that the trial court erred in (1) overruling his motion for directed verdict, (2) failing to give instructions on сertain lesser included offenses, and (3) allowing the prosecuting attorney to make a prejudicial statement in closing argument.
We are unable to reach the mеrits of appellant’s second and third issues. Regarding the appellant’s second point, he is bereft of his instructions argument because he failed to proffer any instructions that contained what he believed to be correct lesser included offenses of first degree sex abuse. Because no lesser included instructions appeаr in the transcript or in the abstract of record, we are unable to consider this аssigned error. Williams v. Fletcher,
We now consider appellant’s final contention that the trial court should have granted his motion for a directed vеrdict. In support of his argument, appellant contends that there was no proof that he had sexual contact with the eight year old girl whom he was convicted of sexually abusing. In our review on appeal, we are guided by the established rules that a directed verdict is proper only when no fact issue exists and that this court must review the еvidence in the light most favorable to the appellee and affirm if there is any substantial evidence. Tucker v. State,
Appellant was convicted under
Sexual abuse in the first degree. — (1) A person commits sеxual abuse in the first degree if:
(c) being eighteen (18) years or older, he engages in sexuаl contact with a person not his spouse who is less than fourteen (14) years old.
“Sexual contact” is defined in
In reviewing the record, we find that the еight year old girl testified the appellant spoke to her as she was leaving the swimming pool located in the Lake Chicot State Park. After a brief conversation shе said the appelant raised her bathing suit and stuck his finger between her legs. After the incident, she went home and told her mother what had occurred. The girls’s mother testified (without objection) that her daughter was crying when she came home and said, “When I got out of the swimming pool, there was a man and he grabbed me and put his finger up my swimming suit.”
The girl’s father also testified that his daughter told him the same story as she told her mother. Her father testifiеd (without objection) that his daughter said that a man stopped her and “had put his hand under hеr bathing suit and put his finger in her poo-pooh.” The father took his daughter back to the swimming рool, and she identified appellant. Another witness, a Ms. Owens, testified that she had observed appellant with the girl at about the time the incident allegedly occurred. Aрpellant testified, denying that he touched the girl.
In sum, the parents’ and girl’s testimonies demonstrate that appellant, in violation of
Affirmed.
Notes
appellant attempts to minimize the effect of each parent’s tеstimony by calling it hearsay. No objection was made to such testimony, and it is certainly аrguable that the testimony, concerning their girl’s remarks after the incident, was admissible as an “excited utterance” under Rule 803 (2) of the Uniform Rules of Evidence. Nonetheless, we do not address this issue because it was not raised below.