*1 denied; writ of cer- prohibition Writ of appeal dismissed. granted;
tiorari
Joseph F. Arkansas, Appellee.
STATE of
No. CR 09-365. of Arkansas.
Supreme Court
8,Oct. *2 James, Rock,
Whitney ap- B. Little for pellant. McDaniel, Gen., Att’y by:
Dustin Nicana Sherman, Gen., Att’y appellee. C. Ass’t BROWN, L. ROBERT Justice. liAppellant Joseph ap- F. Rounsaville peals rape, kidnap- from his convictions for ping, threatening and terroristic and his imprisonment sentences life as a habitu- offender, thirty years al imprisonment, and years imprisonment, twelve respectively. (1) points appeal: He raises two the circuit erred in victim Rules of Evidence 403 and (2) 404(b), and the State’s evidence was insufficient to his convictions. We affirm. doing Rounsaville was how she was
On December and to talk about the County in Lonoke Court charged Circuit problems having he was with his wife. At rape, kidnapping, аnd terroristic point, the two had consensual sex *3 victim, threatening, involving an adult together in a motel room in Hot Springs. C.G., pretrial hearing in 2004. At a on hAccording C.G., to Rounsaville showed 16, 2008, June Rounsaville moved at her up house on December 2003. Rules of Evidence 403 and He was intoxicated and demanded that she from prohibit to State introduc- refused, have sex with him. When she ing rаped evidence at trial that he had took her clothes off and forced her to have victim, K.T., another under circumstances Afterward, sex with him. apologized involving similar to those Rounsaville C.G. and acted remorseful. C.G. stated that that the K.T. evidence was not 12claimed forgave him because she did not think only relevant to the issue the C.G. happen agаin. early it would In which was whether she had consented to help Rounsaville offered to move into C.G. urged sex. He that the evidence be ex- home in accepted, mobile Lonoke. She the two cluded because encounters were paid and he for the entire move. similar, sufficiently not outweighed by April value of the evidence was C.G. called Rоunsaville prejudice, the risk of and that the evidence to ask if she borrow money. could purpose was offered for the sole of inflam- house, Rounsaville came over to her carry- ing jury. clothes, ing “really some extra and acted irritated,” she said. He went into her
The State’s retort was that it intended bedroom and told her to take off her to introduсe the evidence because simi- clothes. C.G. refused and told Rounsaville larities between Rounsaville’s actions with that “we’re not to do this. I don’t the two women showed his intent to com- money need the that bad.” Rounsaville charged, mit the crimes for which he was slammed C.G.’s bedroom door and locked plan showed he followed the same it, bed, her began shoved to matters, respect to both and rebutted resisted, take her clothes off. When C.G. his claim that had consented to C.G. sex. he told her that single women who were pretrial hearing August At a parents get sometimes had “to do this to Rounsaville renewed his motion limine money.” pleaded She with Rounsaville to prevent presenting to the State from evi- stop fourteеn-year- and told him that her dence of his encounter with K.T. under any old son would be home at moment. 404(b), which the circuit subse- n quently denied.1 her, In response, slapped Rounsaville bed, and pushed her face down on the tied Rounsaville was tried before a her arms behind her back. He then took September testimony, 2008. In C.G.’s her penetrated her underwear off and she rеvealed that she had met Rounsaville him anally begged stop. while C.G. to at a friend’s house in Lonoke in October of Eventually, pulled off the Rounsaville C.G. recovering when she was from an hair, knees, to, did, bed her forced her to her accident. Rounsaville offered times, her slapped her several and made night. drive her home that After that him. She testified meeting, bеgan stop by perform Rounsaville oral sex on kept saying lunch break to that Rounsaville that he was during C.G.’s house see 404(b) prior to a mistrial of the first trial that The circuit court had earlier denied regarding during same motion Rule 403 and Rule occurred voir dire. “master,” K.T., According things him then that she had to call did. went “master,” week, that, he wanted to anytime and that well for abоut a but soon after house, come over she had to do “extremely aggressive Rounsaville became |/‘that's whatever he said because far tell towards as sex” and would [her] price pay.” had to Rounsaville then [she] her that she had to do whatever he wanted forced her back onto her bed where he sexually money because she did not have vaginally. penetrate for rent. Rounsaville also demanded K.T. call “master.” point,
At some home son came Ac- and knocked on bedroom door. *4 Eventually, K.T. to fear began Rounsa- C.G., cording told her son to Rounsaville arguing ville and decided to move out after in they talking that were and would be out day with him one about his sexual de- get a minute. Rounsaville then let her packed things mands. She some of her you say dressed and said to her: “If a and used a kitchen chair to barricade the word, your I will cut throat.” Rounsaville door to her bedroom. later Rounsaville placed brought the extra clothes he had open began screaming forced the door and her dresser and told her that “whenever hitting ripped and her the head. He there, he to if to wanted he needed hide shirt, knifе, open grabbed KT.’s a and wife, going from his he to be there.” was began her threatening to cut off one of son, E.G., testified that he came bedroom, nipples.- K.T. ran out of the and riding home from his bike with a friend followed, hitting shoving Rounsaville and coming and heard a commotion from his her from behind. When K.T. fell over a mother’s bedroom. He' knocked the couch, Rounsavillе forced her to and, nobody bedroom door when came to oral sex on him. she to When refused answer, began he to pound the door. cooperate, pushed her face down on the Eventually, Rounsaville opened door couch and tied her her hands behind back. slightly and told E.G. that his mother was began penetrate anally. He then to door, busy. Rounsaville closed the and while, dragged After a Rounsaville K.T. to E.G. returned to his room. E.G. When bedroom, something tied around her later, came out of- his room Rounsaville neck, face, put pillow a over her and told gone, was and he could mother hear his die, “you help wanted to I’m crying in her He bedroom. testified that die,” you apparent a previ- rеference to his mother did not come out her room attempt by ous suicide K.T. Rounsa- When days. for two up, ville let her she went into the bath- presenting After of C.G. - There, dragged room. Rounsaville son, testify and her K.T. State called proceeded into the shower and urinate problems about her similar Rounsa- with there, on her. From he forced K.T. back dating ville. She testified that she started into pene- the bedroom where he Rounsaville after meeting night- at a vaginally. trate her K.T. said she time, severely club. At the K.T. was de- |fiRounsaville’s then bit arm until she tast- pressed due to the recent deaths of her blood, point “really ed at which he hit her brother, father and problems older go. hard the head” and let her sixteen-year-old daughter, and her prosecutor additionally presented struggles recovering as a alcoholic. K.T. Perkins, of Melinda K.T.’s revealed that frequently she discussed conviction, |,.¡problems probation officer after her theft Later, these with Rounsaville. Jerry and Detective job, when K.T. lost her Rounsaville Keefer. Perkins tes- offered him, to let K.T. move in with which she tified that she noticed bruises on K.T.’s up probation presented, including any for her evidence evi- face when she showed K.T. if When Perkins asked appointment. alleged dence that is to have been admit- or had had in a car accident been ted in error. e.g., Goodwin v. sons, of her K.T. started trouble with one the man she was
crying and said addition, credibility of witnesses is an K.T. then living up. with had beaten her for the issue not the court. See arms, on her bruising showed Perkins Cluck v. back, ankles, wrists, thighs. Perkins The fact-finder is free to be- raped, asked if K.T. had been and K.T. part lieve all or witness’s said, Detective Keefer next testi- “yes.” may questions resolve conflicting a search warrant on fied that executed testimony and inconsistent evidence. Id. house in connection with A challenge allegations. KT.’s He stated preserved by making with KT.’s found evidence consistent testi- mony specific herself in a motion for that she had barricaded directed verdict at both *5 clothing room. He also found torn the the conclusion of the State’s case and at in a zip bedroom and a tie trash can. the conclusion of all of the evidence. Ark. (2008); State, P. R.Crim. 33.1 Maxwell v. rape, Rounsaville was convicted of kid- (2008). 553, 373 Ark. and, napping, threatening and terroristic rationale behind this rule is that “when appeal, challenges sufficiency, he the specific grounds are stated and the absent regard the evidence with to all three con- proof pinpointed, is the circuit court can Although victions. Rounsaville raises this motion, or, justice either the if grant re point appeal, issue as second double his quires, reopen- allow the State to its case jeopardy require concerns this court sufficiency-of-the-evidence argu- review supply missing proof.” and the Pinell v. State, Morgan State, 353, 357, 168, ment first. See 2009 364 Ark. 219 S.W.3d 257, (2005). 308 S.W.3d ruling 171 Without a circuit court motion, specific nothing on a there for is This court treats a motion for State, Ashley this court to review. 358 appeal directed verdict on a challenge (2004). 414, 191 S.W.3d 520 the the evidence. Ward v. (2007). 398, 292 260 S.W.3d the State rested its Rounsa- lAfter judge’s This court will affirm the circuit verdict, ville’s counsel moved for a directed denial of a motion for a directed verdict if stating as follows: 17evidence, thеre is substantial either direct I don’t feel that the state has met their circumstantial, jury’s or to support the showing burden in that the sex was not repeatedly verdict. Id. This eourt has de voluntary. they I don’t believe made a fined substantial evidence as “evidence prima facie ease. I don’t think that enough compel forceful a conclusion one enough support there’s evidence to way beyond suspicion the other or con kidnapping or terroristic threaten- jecture.” Young v. 370 Ark. ing. ask that the Court direct a We’d (2007). 257 S.W.3d Further verdict for the defendant this matter. more, court views the evidence in “[t]his The circuit denied the motion for verdict, light most favorable to the and At the close of all of the directed verdict. only supporting the verdict will evidence, counsel again determining Id. In considered.” wheth moved for a directed verdict and stated as sup er there was substantial evidence to verdict, port the this court looks at all of follows: testimony from the al- 331 Ark.
I think that
victim —she stated on the record
leged
The test used to determine
back,
my notes in the
but
that it —I left
physical
whеther
there was
force
said, “Okay.
If we’re
allegedly she
against
the act was
the will of
“whether
this,
I think
to do
let’s do this.” And
party upon
whom the act was commit-
sex,
was,
during the anal
ted.” Id. at
at 401.
said,
hurts,”
so he
“Stop,
she
it
pres
conclude that
State’s
We
having
and started
stopped
entation of
own
was suffi
sex, according to her own
oral
testimo-
cient evidence for the
to conclude that
said,
ny,
that
“I
when she
don’t
against
Rounsaville’s actions were
her will.
anymore,”
want
have oral sex
he then
repeatedly
rape
court
that a
This
has
held
stopped
began vaginal
intercourse.
victim’s
alone is substantial evi
“No,
said,
Each time
I don’t want to
she
dence to
conviction.
this,”
stopped.
I think
was in
do
538, 222
e.g., Ellis v.
record, according
testimony,
to her
S.W.3d 192
C.G. testified
specific grounds
and those are the
sex,
refused when Rounsaville demanded
why they didn’t meet
their burden of
that she
to take
resisted when
proof.
off,
repeatedly slapped
her clothes
judge again
The circuit
denied Rounsa-
face,
that he tied her hands
ville’s motion for directed verdict.
anally
behind her
raped
bаck and
It is clear to this court that Roun-
*6
begged
stop,
while she
for him to
a specific
saville failed to make
motion
him,
forced her to
oral sex on
regarding
sufficiency
of the
sex,
vaginal
her to have
and that
forced
charges
ter-
prove
kidnapping
of
over,
after the attack
was
told her that
threatening at both the
of the
roristic
close
anyone
he would kill her if she
about
told
all
State’s case and the close of
of the
happened.
testimony
what had
Her
Accordingly,
sufficiency ar
evidence.
more than sufficient to show that
the sex
gument
relating
jury’s
to the
verdict on
will, and, thus,
against
acts were
sub
charges
preserved
those two
is not
for our
stantial evidence exists to
the ele
reviеw. See Elkins
compulsion
ment of forcible
under Arkan
This has a criminal trial is court that, offenses, degree, otherwise it prosecutions for sexual defendant See, e.g., may evidence of similar incidents be would not be offered. McCul 7, at 298 S.W.3d at independently lough, relevant under Rule Nevertheless, the evidence should to rebut a defendant’s claim that a sexual 455. Rule 403 unless the encounter with a victim was consensual. not be excluded under 2009 Ark. defendant can that the evidence lacks e.g., McCullough v. show (evidence of un probative that defen- value in view of the risk reviews a unlawfully apartments prejudice. dant entered the Id. This court fair ruling under Rule 403 for an record this case has been re- judge’s circuit liaThe abuse of discretion. Eubanks pursuant viewed for reversible error. 4-3(i), 2009 Ark. Supreme Court Rule none has been found. noted, already As the evidence of Roun- saville’s encounter with K.T. was relevant Affirmеd.
to the issue of whether his encounter with proba- It was also C.G. was consensual. HANNAH, Justice, JIM concurs. Chief place. tive took evidence I concur based on the doctrine of stare light of the broad discretion afforded the See decisis. Cluck val- judge weighing circuit (2006) 179, 226 against the challenged ue of dan- effect, ger prejudicial unfair we can- of its , say not that the circuit abused his allowing
discretion in this evidence under
Rule 403.