Rains v. State
953 S.W.2d 48
Ark.
1997
Check Treatment

*1 607 trial, not com- time and thus he may exclusion period Goston, 930 Ark. its exclusion on See plain appeal. we court’s denial of S.W.2d 332. affirm trial Accordingly, conclude that his constitu- motion to dismiss as we tional to a trial' was not violated. right speedy

Affirmed. T. RAINS v. STATE of

George Arkansas CR 97-245 953 S.W.2d 48 Court of Arkansas

Supreme delivered Opinion September *3 Gardner, for appellant. Buford Gen., Holt, Kent G. Asst. Att’y Winston Att’y by: Bryant, Gen., for appellee. T. Rains L. Appellant George Corbin, Justice. Donald of the Boone Circuit of conviction County

appeals judgment and for one count attempted Court six counts rape, rape, The trial court sentenced two counts sexual abuse. of first-degree life offender to a term of imprisonment as a habitual on the count each count of sixty years’ imprisonment rape, two terms and of thirty years’ imprisonment attempted rape, each count sexual abuse. Our jurisdiction of first-degree pursu- raises ant to Ark. Ct. R. two l-2(a)(2). Appellant points Sup. and reversal. We find no error affirm. in sex- convictions stem from having engaged victims, his son J.P.,

ual acts with three minor namely step- S.D., acts and his niece The sexual occurred over D.C. daughter of time from during through period June old, time five to seven S.D. was six to which was years eight old, old, ten D.C. eight years *4 old. The information that to thirty-six charged thirty-nine 3, 1996, committed on or about two counts February Appellant one each and S.D. Also on or about Feb- count against rape, J.P. 3, 1996, the with the information ruary charged Appellant The of S.D. four counts remaining rape, attempted rape in information as occurred sometime between the charged having 1993 and involved two counts February against J.P. June as to the counts and two counts S.D. two against Specifically, that had made the information J.P., charged Appellant against in mouth his the child’s and that penis Appel- place (Appellant’s) in to lant had his anus. As the two remain- also placed penis S.D., that counts the information reflected ing against in her had made S.D. his place (Appellant’s) penis Appellant and his S.D.’s mouth that also inside tongue placed two the information vagina. Lastly, charged Appellant in sexual counts of sexual abuse for having first-degree engaged

611 date between with S.D. and D.C. on a sometime contact June and 1996. the I. Evidence Sufficiencyof reversal, For first that there was his for argues point insufficient evidence sustain convictions. Fie contends that to and the children’s was unclear and that his con- testimony vague based the victions were rather than the evi- jury’s passion, upon dence. The State that this barred argues point procedurally because the raised in first motion for directed grounds verdict differed from those raised in his motion at the close of all the evidence. It is the State’s contention that because Appellant not the did lack of evidence of sexual or deviate argue penetration verdict, for his first motion directed activity argu- ment is not We for preserved appeal. disagree.

It is well settled that not raised at trial will arguments not be addressed for the first time on and that can appeal, parties not the for an and are change grounds bound objection appeal the and nature of their and scope objections arguments State, at trial. Evans v. 326 Ark. presented S.W.2d 136 Where the (1996). defendant’s first for motion directed verdict was as to the but motion at specific missing the proof, close the evidence renewal the general first merely motion, his of the evidence was challenge sufficiency pre served for v. review. Durham appellate Durham, S.W.2d 470 In State (1995). because argued motion made close the evidence not specific, defendant waived his challenges the evidence sufficiency This court appeal. reached the merits ultimately of Durham’s because the he raised for reversal argument were same grounds Thus, as those raised to the trial court. it is the originally oppor of the trial court to first tunity hear address the parties’ argu ments that is of whether the importance determining argument has been That both directed-verdict preserved motions appeal. *5 are not identical will bar an not argument appellant’s appeal.

Here, motions for directed specific at end verdict of the State’s case and at the close of all the 612 in his final additional The fact that he stated grounds

evidence. Therefore, of them. does not bar our consideration motion that were not issues on not raised any because has appeal court, of the merits this to we will reach the trial first presented argument. is treated for directed verdict as a a motion

On appeal, State, v. the evidence. to the Williams sufficiency challenge 8, in a We view the evidence 946 S.W.2d 678 (1997). light Ark. that evidence which to and consider most favorable the State only Evidence, or circumstan whether direct the verdict. Id. supports tial, to enough a conviction if it is forceful is sufficient support or reach a conclusion one way reasonable minds to compel not, however, the evidence This does other. Id. court weigh trial, as a matter for the factfinder. v. at this is Dabney presented 382, State, Nor will court 326 Ark. 930 S.W.2d (1996). State, 319 Ark. Caldwellv. of witnesses. credibility weigh 891 S.W.2d 42 (1995). he sexual if inter

A commits engages person rape who is less than or deviate sexual course activity person Code Ann. 5-14-103 1993). fourteen Ark. age. (Repl. years § sexual means act of sexual gratification “Deviate activity” any the anus or mouth of however slight, involving penetration, of another or penetration, one by person person penis or anus of one by however the labia majora person any slight, another member or instrument by foreign manipulated per body is not Ark. Code Ann. 5-14-101(1) 1995). Rape son. (Supp. § offense; rather, it crime that is a defined as a single may continuing or in sexual intercourse deviate be committed either engaging with, case, is less in this another who than as activity person v. fourteen See Tarry years age. testifies as 202 (1986).

S.W.2d Where prosecutrix multiple time, nature, of a there acts of different separated point offense, as a was necessary is no continuing “separate impulse at offense.” Id. 710 S.W.2d 203. the commission each if, sexual abuse being eighteen A commits first-degree person older, not or he in sexual contact with old engages person years fourteen old. Ark. Code Ann. who less than spouse

613 sex- contact” means act of “Sexual 1993). any 5-14-108 (Repl. § or cloth- ual touching, directly through gratification involving buttocks, or or of the sex or anus another ing, organs, person Ark. Ann. 5-14-101(8) the breast a female. Code (Supp. § 1995). court has held that the uncorrobo

This repeatedly victim, child, rated whether adult or is suffi testimony rape 279, Evans, cient to a conviction. 326 Ark. 931 S.W.2d support 136; Caldwell, 243, 42; State, Ark. 891 v. 319 S.W.2d 293 Winfrey 342, Likewise, Ark. 738 S.W.2d 391 the victim’s testi (1987). need not be corroborated to demonstrate sufficient evi mony State, dence of sexual abuse. v. McGalliard 306 Ark. first-degree 181, 813 S.W.2d 768 (1991). To the extent there be incon- may in the sistencies victims’ this is matter of testimony, credibility State, 81, for the to resolve. Puckett v. Ark. jury 324 918 S.W.2d abuse, 707 In cases of sexual it (1996). be assumed that the may defendant had sexual contact with the victim for the purpose and it is not gratification, for the State to necessary directly State, 672, that he was so motivated. Holbertv. prove 308 Ark. 826 McGalliard, S.W.2d 284 also (1992). 181, See 306 Ark. 813 768; State, 317, S.W.2d Williams v. 298 Ark. 766 S.W.2d 931 (1989).

isIt not similarly for the State to necessary prove when and where each act specifically or sexual contact occurred, as time is not an essential element of the See crimes. State, Douthitt v. 326 Ark. 935 S.W.2d 241 v. (1996); Bonds State, 296 Ark. 751 S.W.2d It (1988). rare youthful victims of sexual abuse can exactness as to the provide time an occurred, offense in the any concern discrepancies testimony date the offense are ing State, for the to resolve. Yatesv. jury 785 S.W.2d 119 In (1990). order to a charge prove it must be shown that the attempted rape, defendant’s actions constituted a substantial in a course of step conduct intended to culminate the commission of v. Ark. rape. Daffron 182, 885 S.W.2d 3 (1994). occasions, testified trial that on at least four mouth, his “wiener” or or in put “private” anus mak- also on it. He stated put suck ing J.P. *7 it. He mouth and sucked on in his wiener (J.P.’s) (Appellant’s) near three at trailer acts times these occurred stated that mother, and his S.D. he with where lived Appellant, Dogpatch, house once at his that the acts occurred grandmother’s He stated in also his wiener He that had put in stated Appellant Bergman. stuff “yellow” He that sometimes stated “gooey,” S.D.’s private. the last wiener. He stated that out of would come house, while at his had occurred was time such acts grandmother’s he and was and was alone his gone Appellant grandmother occasion, to suck told him that on that S.D. He stated Appellant he did he was told. He stated wiener and that as on Appellant’s hurt, and it his into his anus that that wiener (J.P.’s) Appellant put that he remembered he did not He stated cry. Appellant but that He was on the bed with Appellant. on S.D. while she “coming” wiener. S.D. suck on his stated that made (Appellant’s) Appellant trailer, at the that each incident that occurred He stated during mouth, in him wiener his made his (Appellant’s) Appellant put those times. He that was each of three stated and that S.D. present time that the incident in was not put Bergman only Appellant his wiener in his anus. (J.P’s) and that at one that her

S.D. testified stepdad Appellant mother, her and in a trailer time she had lived with Appellant, J.P. made his She that her suck in stated Appellant Dogpatch. She that she was her word for stated which said penis. “thingy,” remember, this in too had her do many places Appellant sex him on had made such acts of oral on but that he her perform at the trailer. She more three while lived than occasions they her make her his stated that when would put thingy Appellant he She mouth would be and would be shirt. wearing she dressed her which she stated that had also licked thingy, Appellant bath- her where she to the described as between being legs, goes that tried to his room. stated on one occasion put She Appellant on her She stated that would get inside thingy thingy. Appellant him, off her while her clothes were of her or on top put top shirt, her. She that he and would rub on stated and was wearing different occasions come out of on stuff would Appellant’s thingy that at her and at the trailer and house Bergman, grandmother’s it stated that when it had on her and felt She got “yucky.” Appel- tickled, it hurt and it but lant tried to in her thingy put thingy, it her. stated that it tickled when he rubbed She mostly against she also the same kinds of seen things Appellant doing it, in his mouth and and J.P., putting thingy sucking suck his She stated that on one occasion making thingy. house, while she was her Aunt Marsha’s when she was staying old, cousin, D.C., six had made her her Appellant put their hands She stated the last time thingy.

had abused her her was at house about two weeks grandmother’s before her Aunt Marsha her about abuse. questioned

D.C. testified that her uncle and that he had *8 lived with her at different times. She stated that family one during the them, of times when was with about two or Appellant living two and one-half had made her and years ago, S.D. Appellant touch his She stated that her mother had to the private part. gone store and that had told the two to bed. She Appellant girls go said later came into their Appellant bedroom and made them touch his She stated that made each the penis. two Appellant it, take turns girls and that it touching hard one time and got white stuff came out it. She stated that when her mother started into the made the pulling driveway, into Appellant girls get bed and then went into the room. living sister,

Marsha D.C.’s mother and Douglas, testi- fied that was married to S.D.’s and Appellant mother until 1995. She stated that February while was married to Appellant mother, the children’s had lived in trailer in they off Dogpatch, 7. She stated that had Highway with lived her and Appellant her in family occasions, on two different Bergman the first two being and one-half to three and the years second around ago, the being end of 1995. She stated that she became April aware of the sexual abuse in while she February the children questioning events, about two which occurred at their grandmother’s house in some Bergman, involving children sex oral performing each other. She stated that D.C., when she the child questioned told her that had made and her S.D. fondle Appellant him a earlier, couple when lived with them. Appellant She that and then S.D. and separately stated that she questioned J.P. the abuse. told her about both children evidence, it is clear that there From foregoing to the to sustain convictions sufficient evidence jury presented sex the two counts of first-degree Concerning against Appellant. abuse, had made S.D. and D.C. stated that ual both Appellant D.C., that the older of the two stated girls, them touch his penis. turns him and that his made the take girls touching Appellant that stuff came out of it. Such testimony hard and white got penis that in an act of is more than sufficient to engaged Appellant prove under with who were both gratification age girls, fourteen, direct touching penis. involving 3, 1996, counts of

As for two them testified that both and S.D. engage J.P. occasion, sex him. stated that on that oral Additionally, J.P. the child’s anus. As to the count of his wiener in Appellant put date, S.D. which also occurred on that stated attempted rape, and that it hurt had tried her thingy put thingy corroborated S.D.’s testimony by tickled. stating testi his wiener in S.D.’s The children’s private. Appellant put the acts deviate sexual establishes mony sufficiently activity each child and the act of of S.D.’s against penetration attempted vagina.

As for the counts of four remaining rape alleged have time the children lived with occurred the during Appellant evidence in the trailer in there was sufficient Dogpatch, presented both the convictions. that and S.D. testified by support J.P. J.P. occasions, at made him oral on least four had perform Appellant in three sex or had anal sex with him. On occasions engaged trailer, suck wiener. stated that Appellant J.P. J.P. was not the time He also stated that incident Bergman only that had his wiener anus. S.D. stated Appellant put made her suck his on more than three occasions thingy Appellant had her while lived at trailer and licked they Appellant this is more than sufficient to sustain testimony thingy. Clearly, deviate the four counts of involving activity against both and S.D. New Trial

II. Motionfor reversal, for For second Appellant argues point for the hear- trial erred in to have court fading Appellant present barred on his motion for new trial. This ing point procedurally not fde because did a notice Appellant timely appeal issue.

The record reflects that a and commitment order judgment 1996, 4, was filed on and that against Appellant September Appel- 20, lant An filed his notice on 1996. appeal September amended order filed commitment on October judgment 1996, 2, of which filed a second on notice Appellant appeal 4, 4, 1996, October 1996. Also on October a filed Appellant motion for based new trial misconduct. On upon juror February 1997, 24, made, some 143 after the motion was an order days the motion was filed. then filed an additional denying Appellant 26, notice of on 1997. appeal 14, in Harris v. Recently, S.W.2d motion, we held that (1997), where such as posttrial trial, for motion new is not resolved the trial court within from the date of days its it is thirty deemed denied filing, pursuant case, to Ark. R. P.—Crim. 2. In that of con App. judgment 5, 1995, viction Harris entered against on October and Harris 1995, filed 16, a motion for trial new on October asserting juror misconduct. motion, after Harris filed his on Fifty-one days 6, 1995, December the trial court entered its order denying motion. Harris filed his notice of 1996. We appeal January concluded that because Harris’s motion for trial new was filed on 16, 1995, October it was deemed denied thirty later days 15, 1995, November and that his notice of was thus appeal untimely. case,

In the motion new trial present was deemed denied as of November 1996. Accordingly, within days which to file a notice thirty of appeal denial, from that which on December 1996. It no expired is of benefit to that the trial court denied belatedly *10 motion new trial on the as trial court February Therefore, lacked so to rule. Id. jurisdiction because the the motion file his notice of order denying did not appeal 26, 1997, this until we dismiss the for new trial part appeal.

III. Rule 4-3(h) the Arkansas In accordance with Rule 4-3(h) Supreme Rules, reviewed for adverse the record has been ridings Court and no such but not objected argued appeal, reasons, the errors were found. For the aforementioned judgment conviction is affirmed. concur. JJ., Imber, Glaze I concur Justice, concurring. affirming Glaze, Tom case, the court’s decision to but write to disagree majority motion for directed verdict reach the merits regarding appellant’s of the State’s on the elements of sufficiency proof questioning In his motion for and deviant sexual conduct. stating penetration case, directed verdict at the end of the contended State’s appellant never showed the State had failed to because State prove rape and where these events occurred. No mention was made when that the State had failed to show the elements of or penetration rested, sexual conduct. It was after the defense had deviant only evidence, all renewed his and at close of appellant motion, directed-verdict the State had failed to stating prove time and of the and the elements of or penetration place rapes deviant sexual conduct.

Rule 33.1 of the Arkansas Rules of Criminal Procedure pro- vides that the failure of a defendant to move for a directed verdict at the conclusion of the State’s case and at the close of the case of the evidence will constitute a waiver of because insufficiency the evidence to sufficiency any question pertaining sup- verdict. 33.1 further the defendant to Rule jury port requires deficient, in which the evidence is and the respect specify a directed verdict at the renewal of motion for close previous all the evidence the issue of insufficient evidence for preserves appeal.

In Durham v. 320 Ark. 899 S.W.2d 470 (1995), Stated made clear this court that our case law does not militate against same, earlier, the renewalof the directed verdict motion at the specific However, end of all the this court has never intimated that proof. a defendant omit a in defendant’s directed-verdict may reason(s) case, motion at the end of the State’s and later add it when defendant moves for directed verdict at the close of all the evi- rule, dence. if this were the Obviously, defendant could simply and withhold defendant’s real reasons delay for directed verdict until after all evidence has been presented. State,

In Walkerv. 318 Ark. 883 S.W.2d 831 this (1994), court discussed and thoroughly the standard for explained preserv- an ing insufficiency-of-the-evidence and set out the argument reasons for practical be requiring grounds specified defendant’s directed-verdict that, motion. One reason is in multi- cases, it is ple-count for an element to be easy overlooked. Another reason given Walkercourt is stated as follows:

The reasoning underlying our is holdings that when specific grounds are stated and the absent proof pinpointed, the trial motion, or, court can either grant ifjustice allow the requires, State to its case and reopen supply missing proof. See also Webbv. 938 S.W.2d 806 (1997). case, In the as set present forth in the clearly majority opin- ion, the State’s proof all sufficiently elements of the proved However, counts. I am of the view that Rains failed to preserve his argument to the pertaining and deviant penetration sex ele- ments, so I would hold Rains is barred in procedurally arguing those elements in this appeal. J., joins concurrence.

Imber,