Lead Opinion
liAppellant Joseph F. Rounsaville appeals from his convictions for rape, kidnapping, and terroristic threatening and his sentences of life imprisonment as a habitual offender, thirty years imprisonment, and twelve years imprisonment, respectively. He raises two points on appeal: (1) that the circuit judge erred in admitting the testimony of a prior rape victim under Arkansas Rules of Evidence 403 and 404(b), and (2) that the State’s evidence was insufficient to support his convictions. We affirm.
The State’s retort was that it intended to introduce the evidence because the similarities between Rounsaville’s actions with the two women showed his intent to commit the crimes for which he was charged, showed that he followed the same plan with respect to both matters, аnd rebutted his claim that C.G. had consented to sex.
At a pretrial hearing on August 26, 2008, Rounsaville renewed his motion in limine to prevent the State from presenting evidence of his encounter with K.T. under Rule 404(b), which the circuit judge subsequently denied.
Rounsaville was tried before a jury on September 16, 2008. In C.G.’s testimony, she revealed that she had met Rounsaville at a friend’s house in Lonoke in October of 2003, when she wаs recovering from an accident. Rounsaville offered to, and did, drive her home that night. After that meeting, Rounsaville began to stop by C.G.’s house during his lunch break to see how she was doing and to talk about the problems he was having with his wife. At some point, the two had consensual sex together in a motel room in Hot Springs.
hAccording to C.G., Rounsaville showed up at her house on December 31, 2003. Hе was intoxicated and demanded that she have sex with him. When she refused, he took her clothes off and forced her to have sex with him. Afterward, he apologized and acted remorseful. C.G. stated that she forgave him because she did not think it would happen again. In early 2004, Rounsaville offered to help C.G. move into a mobile home in Lonoke. She accepted, and he paid for the entire move.
In April of 2004, C.G. called Rounsaville to ask if she could borrow some money. Rounsaville came over to her house, carrying some extra clothes, and acted “really irritated,” she said. He went into her bedroom and told her to take off her clothes. C.G. refused and told Rounsaville that “we’re not going to do this. I don’t need the money that bad.” Rounsaville slammеd C.G.’s bedroom door and locked it, shoved her to the bed, and began to take her clothes off. When C.G. resisted, he told her that women who were single parents sometimes had “to do this to get money.” She pleaded with Rounsaville to stop and told him that her fourteen-year-old son would be home at any moment.
In ■ response, Rounsaville slapped her, pushed her face down оn the bed, and tied her arms behind her back. He then took her underwear off and penetrated her anally while C.G. begged him to stop. Eventually, Rounsaville pulled C.G. off the bed by her hair, forced her to her knees, slapped her several times, and made her perform oral sex on him. She testified that Rounsaville kept saying that he was
At some point, C.G.’s son came home and knocked on her bedroom door. According to C.G., Rounsaville told her son that they were talking and wоuld be out in a minute. Rounsaville then let her get dressed and said to her: “If you say a word, I will cut your throat.” Rounsaville placed the extra clothes he had brought in her dresser and told her that “whenever he wanted to be there, if he needed to hide from his wife, he was going to be there.”
C.G.’s son, E.G., testified that he came home from riding his bike with a friend and heard a commotion coming from his mother’s bedroom. He' knocked on the bedroom door and, when nobody came to answer, he began to pound on the door. Eventually, Rounsaville opened the door slightly and told E.G. that his mother was busy. Rounsaville closed the door, and E.G. returned to his room. When E.G. came out of- his room later, Rounsaville was gone, and he could hear his mother crying in her bedroom. He testified that his mother did not come out of her room for two days.
After presenting the testimony of C.G. and her son, the State called K.T. to testify about her similar problems with Rounsa-ville. She testified that she started dating Rounsaville after meeting him at a nightclub. At the time, K.T. was severely depressed due to the recent deaths of her father and older brother, problems with her sixteen-year-old daughter, and her struggles as a reсovering alcoholic. K.T. revealed that she frequently discussed these |,.¡problems with Rounsaville. Later, when K.T. lost her job, Rounsaville offered to let K.T. move in with him, which she then did. According to K.T., things went well for about a week, but soon after that, Rounsaville became “extremely aggressive towards [her] as far as sex” and would tell her that she had to do whatever he wanted sexually becausе she did not have money for rent. Rounsaville also demanded that K.T. call him “master.”
Eventually, K.T. began to fear Rounsa-ville and decided to move out after arguing with him one day about his sexual demands. She packed some of her things and used a kitchen chair to barricade the door to her bedroom. Rounsaville later forced open the door and began screaming and hitting her in the head. He ripped open KT.’s shirt, grabbed a knife, and began threatening to cut off one of her nipples.- K.T. ran out of the bedroom, and Rounsaville followed, hitting and shoving her from behind. When K.T. fell over a couch, Rounsaville forced her to perform oral sex on him. When she refused to cooperate, he pushed her face down on the couch and tied her hands bеhind her back. He then began to penetrate her anally. After a while, Rounsaville dragged K.T. to the bedroom, tied something around her neck, put a pillow over her face, and told her “you wanted to die, I’m going to help you die,” in apparent reference to a previous suicide attempt by K.T. When Rounsa-ville let her up, she went into the bathroom. There, Rounsaville - dragged her into the shower and proceeded to urinate on her. From there, he forced K.T. back into the bedroom where he began to penetrate her vaginally. K.T. said that she then bit |fiRounsaville’s arm until she tasted blood, at which point he hit her “really hard in the head” and let her go.
The prosecutor additionally presented the testimony of Melinda Perkins, K.T.’s probation officer after her theft conviction, and Detective Jerry Keefer. Perkins testified that she noticed bruises on K.T.’s
Rounsaville was convicted of rape, kidnapping, and terroristic threatening and, on appeal, he challenges the sufficiency, of the evidence with regard to all three convictions. Although Rounsaville raises this issue as his second point on appeal, double jeopardy concerns require this court to review his sufficiency-of-the-evidence argument first. See Morgan v. State,
This court treats a motion for directed verdict on appeal as a challenge to the sufficiency of the evidence. Ward v. State,
A challenge to the sufficiency of the evidence is preserved by making a specific motion for directed verdict at both the conclusion of the State’s case and at the conclusion of all of the evidence. Ark. R.Crim. P. 33.1 (2008); Maxwell v. State,
lAfter the State rested its case, Rounsa-ville’s counsel moved for a directed verdict, stating as follows:
I don’t feel that the state has met their burden in showing that the sex was not voluntary. I don’t believe they made a prima facie ease. I don’t think that there’s enough evidence to support the kidnapping or the terroristic threatening. We’d ask that the Court direct a verdict for the defendant in this matter.
The circuit judge denied the motion for directed verdict. At the close of all of the evidence, Rounsaville’s counsel again moved for a directed verdict and stated as follows:
I think that the testimony from the alleged victim — she stated on the record that it — I left my notes in the back, but allegedly she said, “Okay. If we’re going to do this, let’s do this.” And I think her testimony was, during the anal sex, she said, “Stop, it hurts,” and so he stopped and started having her perform oral sex, according to her own testimony, and that when she said, “I don’t want to have oral sex anymore,” he then stopped and bеgan vaginal intercourse. Each time she said, “No, I don’t want to do this,” he stopped. I think that was in the record, according to her testimony, and those are the specific grounds for why they didn’t meet their burden of proof.
The circuit judge again denied Rounsa-ville’s motion for directed verdict.
It is clear to this court that Roun-saville failed to make a specific motion regarding the sufficiency of the evidence to prove the charges of kidnapping and ter-roristic threatening at both the close of the State’s case and the close of all of the evidence. Accordingly, his sufficiency argument relating to the jury’s verdict on those two charges is not preserved for our review. See Elkins v. State,
That leaves his challenge to the sufficiency of the evidence relating to rape. Rounsaville was convicted of rape in violation of Arkansas Code Annotated section 5—14—103(a)(1), which provides that a person commits rape “if he or she engages in sexual | ^intercourse or deviate sexual activity with another person ... [b]y forcible compulsion.” “Forcible compulsion” is defined as “physical force or а threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Repl.2006). This court has defined “physical force” as “any bodily impact, restraint or confinement, or the threat thereof.” Freeman v. State,
We conclude that the State’s presentation of C.G.’s own testimony was sufficient evidence for the jury to conclude that Rounsaville’s actions were against her will. This court has repeatedly held that a rape victim’s testimony alone is substantial evidence to support a rape conviction. See, e.g., Ellis v. State,
ImNext, Rounsaville asserts that the circuit judge erred in admitting the testimony of a prior rape victim, K.T., under Arkansas Rules оf Evidence 404(b) and 403. He argues that the testimony should have been excluded under Rule 404(b) because it was not independently relevant but was offered to show his bad character traits and that he acted in conformity with those traits and because the details of the prior rape were not sufficiently similar to the circumstances of the rape for which he was charged. Rounsavillе also claims that the testimony should have been excluded under Rule 403 because its prejudicial ef-feet
Arkansas Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
The test for admissibility under Rule 404(b) is whether the evidence is independently relevant, which means that it has the tendency to make the existence of any fact or consequence to the determination of the action more or less probablе than it would be without the evidence. See Williams v. State,
This court has previously recognized that, in prosecutions for sexual offenses, evidence of prior similar incidents may be independently relevant under Rule 404(b) to rebut a defendant’s claim that a sexual encounter with a victim was consensual. See, e.g., McCullough v. State,
In the instant case, Rounsaville’s counsel argued at trial that Rounsaville’s encounter with C.G. was entirely consensual and that C.G.’s testimony to the contrary was not credible. In light of this defense, the evidence that Rounsaville raped K.T. under similar circumstances was independently relevant in light of his argument that his April 2004 sexual | ^encounter with C.G. was consensual. We hold that the circuit judge did not abuse his discretion by admitting the evidence of Rounsaville’s rape of K.T. under Rule 404(b).
Likewise, we conclude that the circuit judge did not err in admitting the evidence under Rule 403. Rule 403 provides that, “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403 (2008). This court has noted that evidence offered by the State in a criminal trial is likely to be prejudicial to the defendant to some degree, otherwise it would not be offered. See, e.g., McCullough,
As already noted, the evidence of Roun-saville’s encounter with K.T. was relevant to the issue of whether his encounter with C.G. was consensual. It was also probative evidence that the rape took place. In light of the broad discretion afforded the circuit judge in weighing the probative value of challenged evidence against the danger of its unfair prejudiciаl effect, we cannot say that the circuit , judge abused his discretion in allowing this evidence under Rule 403.
liaThe record in this case has been reviewed for reversible error. pursuant to Arkansas Supreme Court Rule 4-3(i), and none has been found.
Affirmed.
Notes
. The circuit court had earlier denied the same motion regarding Rule 403 and Rule 404(b) prior to a mistrial of the first trial that occurred during voir dire.
Concurrence Opinion
concurs.
I concur based on the doctrine of stare decisis. See Cluck v. State,