ORLANDO DOMINGUEZ v. STATE OF ARKANSAS
No. CR-19-854
SUPREME COURT OF ARKANSAS
September 24, 2020
2020 Ark. 286
Oрinion Delivered: September 24, 2020; APPEAL FROM THE HOWARD COUNTY CIRCUIT COURT [NO. 31CR-19-23]; HONORABLE CHARLES A YEARGAN, JUDGE; AFFIRMED.
Appellant, Orlando Dominguez, appeals his conviction of three counts of rape in the Howard County Circuit Court. For reversal, Dominguez argues (1) that the circuit court erred by denying his motion for a directed verdict, and (2) that the trial was “fatally infected” when the circuit court allowed the prosecution‘s lead witness to remain in the courtroom during the testimony of other witnesses and during the State‘s сase concerning charges in which she was not a victim. Because Dominguez was sentenced to life imprisonment, our jurisdiction is pursuant to
At trial, J.D. testified first. She said that early one morning, she went to Dominguez‘s room to look at his phone, and he asked her to lay beside him in his bed. J.D. did so and fell asleep. She awoke when Dominguez got on top of her and began raping her. J.D. testified that his “wiener” was in her “front private area,” and that when she got
V.D. was the second witness and testified that for a time she shared a room with her two sisters. V.D. said that she once saw Dominguez naked and moving “up and down” when he was on top of D.M. She also testified that she once went into Dominguez‘s room to sleep and when she got into the room, he pulled down her pajama pants and put his front private part into her front private part. V.D. said that her private area felt wet after he
Morris testified next. Morris did not live in the home but was staying with D.M. in her room in January 2019 when J.D. came into D.M.‘s room crying. D.M. told her that J.D. was upset because she had been bitten by a spider. In reality, J.D. was telling D.M. what Dominguez had done. Mоrris said that she did not really talk to J.D. at that time. When D.M. went to confront Dominguez, Morris only heard her ask him what was going on and why was he “doing this.” Morris also testified that she was in a vehicle with D.M. in January 2019 when Dominguez called, and she heard the conversation over the Bluetooth system. During that conversation, Morris recalled Dominguez saying that he wanted to “fuck [D.M.] all day and night.” Morris admitted on cross-examination that a court had deemed her to be an unfit parent sometime before 2008 because she had left her children unattended.
D.M. testified next and said that Dominguez abused her physically because he was jealous of her boyfriend and did not want her to “cheat” on him. D.M. testified that Dominguez began sexually abusing her when she was eleven or twelve years old. She described an incident when she was playing games on his phone in his room and he got on top of her from behind. He pulled dоwn her pajama pants and put his “male part” into her “bottom.” According to D.M., Dominguez had sex with her so frequently that it “grew
At the close of the State‘s case, Dominguez moved for a directed verdict. Dominguez argued that there were no physical findings of rape, that the victims’ “stories have changed dramatically, and [that] this is all anecdotal evidence.” The circuit court denied the motion. Dominguez also renewed his objection regarding the victims being present during the trial. Dominguez rested without presenting evidence and renewed his directed-verdict motion. The court denied thе renewed motion. The case was submitted to the jury, which found Dominguez guilty on all three counts and sentenced him to life imprisonment on each count. The information is not clear as to which count related to which victim, but the verdict forms designated D.M. as the victim for count one, J.D. as the victim for count two, and V.D. as the victim for count three. Dominguez filed a timely appeal.
Dominguez first argues that the circuit court erred when it did not grant his motion for a directed verdict because the State failed to present sufficient evidence that he
An appeal from the denial of a motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Taffner v. State, 2018 Ark. 99, 541 S.W.3d 430. In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence. Howard v. State, 2016 Ark. 434, 506 S.W.3d 843. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Id. In reviewing a sufficiency challenge, we view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict. Fletcher v. State, 2018 Ark. 261, 555 S.W.3d 858. This court has consistently held that the testimony of a rape victim, standing alone, is sufficient to support a conviction if the testimony satisfies thе statutory elements of rape. Mabry v. State, 2020 Ark. 72, 594 S.W.3d 39. This is equally true when the victim is a child. White v. State, 367 Ark. 595, 242 S.W.3d 240 (2006). Scientific or medical evidence is not required to prove rape. Kelley v. State, 375 Ark. 483, 292 S.W.3d 297 (2009). Additionally, inconsistencies in the testimony of a rape victim are for the jury to resolve. Gillard v. State, 366 Ark. 217, 234 S.W.3d 310 (2006).
With these authorities in mind, we consider the evidence adduced at trial. J.D. testified that Dominguez‘s “wiener” was inside her front private part when she woke up in his bed one night. J.D. testified to another incident where Dominguez put his private part into her “back, front,” private area. Although J.D. was fourteen at the time of the trial, she testified that she was less than fourteen when the incidents occurred. V.D., who was only twelve at the time of the trial, testified that Dominguez put his private part into her front
We next turn to Dominguez‘s second argument, which is that his trial was “fatally infected” when the circuit court allowed D.M. to remain in the courtroom during the testimony of other witnesses and during the State‘s case concerning the two charges in which she was not a victim. According to Dominguez, D.M. should have been allowed in the courtroom only “during those crimes in which she was a victim and those crimes in which she was not а testifying witness.” Dominguez claims that D.M.‘s presence throughout the trial put his right to a fair trial in jeopardy. Dominguez further asserts that he was prejudiced by D.M.‘s presence during J.D.‘s testimony on count two of the amended information and during Morris‘s testimony on count one of the amended information.
Dominguez contends that D.M. should have been sequestered pursuant to
Both the United States Constitution and the Arkansas Constitution guarantee Dominguez the right to a fair trial. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979). Additionally,
In Stephens, supra, we observed that a defendant‘s right to a fair trial was jeopardized in Commonwealth v. Lavelle, 419 A.2d 1269 (Pa. Sup. Ct. 1980). There, Lavelle was accused of forgery and attempted theft committed in the course of multiple transaсtions made at several branches of the Susquehanna Savings Association by a man who identified himself as Robert Mack. Lavelle‘s appearance at trial was markedly different from the suspect who engaged in the transactions and the identity of the perpetrator of the offenses was in question. The trial court denied Lavelle‘s motion to sequester tellers who had interacted with the suspect and were witnesses. Five tellers testified after police officers identified Lavelle as the perpetrator, and some of the tellers testified after other tellers. The Superior Court of Pennsylvania concluded that
[a]fter listening to the testimony of witnesses who previously testified that the defendant was Robert Mack, the tellers could have been influenced to testify with a firmer conviction of their recollection of the defendant‘s physical characteristics and of his identity as the perpetrator of the crime, and could have been less likely to admit doubt about their identification than they would have admitted if they had been sequestered. Thus, although the teller-witnesses’ testimony related to different transactions, their identification of the defendant may have been influenced by the testimony of witnesses who had testified before them and this possible influence could have been avoided by sequestration.
We contrasted that situation from the one in Stephens, where the victim was the second witness called, and the material parts of her testimony were based on her own
Here, Dominguez argues that he was prejudiced by D.M.‘s presence during J.D.‘s testimony relating to count two of the amended information, regarding the rape of J.D. He contends that after Morris testified, J.D.‘s testimony was “riddled with so many inconsistencies and impossibilities that no reasonable factfinder could conclude” that he was guilty of rape. Dominguez cites the following inconsistencies: (1) “Where did Dominguez penetrate [J.D.] and why did [J.D‘s] butt feel wet if she said that he penetrated her vagina?” (2) How is it that Ms. Morris didn‘t know what [J.D.] told [D.M.] when she came into the room ‘crying and screaming’ that Mr. Dominguez had touched her?” (3) “How could Ms. Morris not have heard [D.M.] accusing Mr. Dominguez of touching his daughters when [J.D.], who was in the same room with Ms. Morris, testified that she heard what [D.M.] was screaming when she went into his room?” and (4) “Did they tell Morris that [J.D.] stepped on a spider or that [J.D.] was bitten by a spider?”
Although Dominguez argues that D.M. was able to “tie up” certain “loose ends” in J.D.‘s testimony, we see no prejudice. The “loose ends” Dominguez cites are at most minor discrepancies in testimony offerеd by J.D. and D.M. regarding the night J.D. told D.M. what had happened immediately after the third incident involving J.D. Regardless of any inconsistencies, Dominguez was able to cross-examine each witness about her testimony. The alleged “loose ends” and discrepancies Dominguez identified did not relate to the
Dominguez also contends thаt he was prejudiced when D.M. was allowed to remain in the courtroom during Morris‘s testimony on count one of the amended information. That count related to the rape of D.M. Dominguez argues that D.M. was able to “clean up inconsistencies” that Morris and others “left behind for the jury.” Specifically, Dominguez notes that D.M., “without specific prompting,” testified that she did not remember “the part about the day and night thing” regarding the statement thаt Morris alleged Dominguez had made to D.M. and that she had overheard in the car. Dominguez also complains that D.M. testified that Morris was told about the sexual abuse three or four days after she initially told her boyfriend, but Morris led the jury to believe that she did not know of the abuse until the phone call. Finally, Dominguez notes that D.M. testified that he never hit her hard enough to leave a mark. Again, Dominguez was allowed to cross-examine the witnessеs and the material parts of D.M.‘s testimony were based on her own knowledge. Dominguez has not shown prejudice from D.M.‘s presence during Morris‘s testimony.
In summary, unlike the situation in Claiborne or Lavelle where the identity of the perpetrator was in question, Dominguez was known to each of the victims. Additionally, the material parts of the testimony offered by J.D. and D.M. were based on their own personal knowledge. Any clarification of alleged inconsistencies was not central to thе testimony leading to Dominguez‘s convictions. J.D. was not in the courtroom until she
Because Dominguez received multiple life sentences, the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Dominguez in compliance with
Affirmed.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. The accusations against Dominguez are condemnable in civilized society, but the accused is not guilty until his guilt is proven beyond a reasonable doubt through a fair and impartial trial. In Dominguez‘s case, this has not yet occurred because at his trial,
The Mitchell case cited by the majority is inapposite. There, all the charges were related to a barroom escalation that occurred in one place on one night with one testifying
A victim‘s right to be present in the courtroom cannot supersede the necessity of sequestration when the victim will later testify as a fact witness concerning other charges being presently discussed, lest we undermine the basic truth-seeking function of a jury trial. This weighs against requiring a robust showing of prejudice in the rare scenario where
Tellez Law Firm PLLC, by: Cory L. Bates, for appellant.
Leslie Rutledge, Att‘y Gen., by: Brad Newman, Ass‘t Att‘y Gen., for appellee.