| jA Pulаski County jury convicted appel-lee Juan Estrada of one count of rape and one count of first-degree sexual abuse, and appellee was sentenced to life imprisonment and ten years’ imprisonment, respectively. We affirmed. Estrada v. State,
A hearing was held on the petition, and the circuit court entered an order granting appellee a new trial based on one ground of ineffective assistance as to the rape conviction and two grounds of ineffective assistance as to the sexual-abuse conviction. It is from this order that the appellant State has filed the instant appeal. Because we determine that the cirсuit court’s decision was not clearly erroneous, we affirm.
As an initial matter, we reiterate that there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State; the former is a matter of right, whereas the latter is not derived from either the United States or 12Arkansas Constitution, nor is it a matter of right, but is granted pursuant to Rule 3 of the Arkansas Rules of Appellate Procedure-Criminal (2011). See State v. Threadgill,
This court will not reverse a circuit court’s decision granting postconviction relief unless it is clearly erroneous. See State v. Brown,
The Rape Conviction
Appellee was convicted of the raрe of C.O., a minor, under Arkansas Code Annotated section 5-14-103(a)(4) (Repl.1997). In his petition for postconviction relief regarding the rape conviction, appellee argued, and the circuit court agreed, that trial counsel had been ineffective in failing to use the victim’s recorded statements tо police to impeach her credibility.
At trial, then-fifteen-year-old C.O. testified that her mother and appellee’s wife were sisters, that appellee’s daughter often served as a babysitter when C.O. was younger, and that C.O. was left alone with appellee at times. She further testified that, around the time that she was four years old, appellee would often touch her “private areas,” masturbate in front of her, penetrate her vagina with his penis, and kiss her on the mouth and neck “every time [she] was alone with him.” She also testified that her family moved to Texas when she was five years old, but that, when they camе back to Arkansas for Thanksgiving in 2001 when she was seven years old, appellant again had sexual intercourse with her when she was left alone with him.
Detective Julie Rose of the North Little Rock Police Department also testified at the trial. Detective Rose stated that she had interviewed C.O. multiple times during thе investigation of appellee. While C.O. had made recorded statements to Det. Rose regarding the Thanksgiving 2001 allegation, trial counsel did not ask Det. Rose about these statements, and the jury was never informed that the statements existed. Notably, in the recorded statements, C.O. asserted more than once that her grandparents were asleep downstairs during [4the incident, despite the fact that C.O.’s grandmother had died in 2000.
At the Rule 37.1 hearing, trial counsel testified that she wаs aware that C.O.’s grandmother had died in 2000, and she did not have a tactical reason for not using the statements to impeach CO. Counsel admitted that the statements would have been good for impeachment purposes, and she testified that there was “definitely a time line problem” with C.O.’s allegations.
In its order granting postconviction relief, the circuit court determined that trial counsel’s failure to use the statements to impeach C.O.’s credibility amounted to deficient performance. Specifically, the circuit court stated, “[T]rial counsel failed to use this inconsistency to cast doubt on C.O.’s recollеction of the events, and thereby impeach her credibility.” Regarding the prejudice prong of Strickland, the circuit court held that the failure to use the statements “was an error that but for its commission, there is a reasonable probability that the outcome of the proceeding would have been different on that offense.”
On appeal, the State argues that this decision was clearly erroneous because the time a crime is alleged to have occurred is not of critical significance unless the date is material to the offense, particularly in cases of sexual crimes against children. See Kelley v. State,
The State’s argument fails on two counts. First, we have held that, where there is no physical evidence, and the only evidence against a defendant in an allegation of sexual crimes against a minor is the testimony of the victim, the victim’s credibility is highly relevant; trial counsel’s failure to impeach that credibility may amount to ineffective assistance when evidence exists that would cast doubt on the defendant’s guilt. See Dillard,
Secondly, the State’s argument ignores our long-standing rule that we defer to the circuit court’s determination on mattеrs of credibility in a Rule 37.1 appeal. See State v. Barrett,
The Sexual-Abuse Conviction
Appellee was convicted of first-degree sexual abuse under Arkansas Code Annotated section 5-14-108 (Repl.1997).
At trial, then-eighteen-year-old C.P. testified on direct examination that, in December 1999, she and her family came from Texas to Arkansas to see a relative’s new baby. On that trip, C.P. testified that she was sleeping on appellee’s couch one night when he laid down 17behind her, that he began rubbing on her vagina over the top of her clothes, that he pulled her pants and underwear down and rubbed his penis against her vagina without penetration. Finally, C.P. testified that appellee stopped when someone came into the house and, when the third person left, appellee went back upstairs and left C.P. alone.
On cross-examination, C.P. testified that she did not tell anyone about this incident until after C.O. told her about appellee’s behavior, that she had told Det. Rose that her brother was asleep in the room when the incident occurred, and that she had also told the detective that she was not initially sure when the incident occurred. On re-direct, C.P. stated that she was previously confused about when the incident had occurred, but that she was certain that the event had occurred during that December 1999 trip.
During the Rule 37.1 hearing, trial counsel testified that she was aware that the sexual-abuse сharge against appellee was alleged to have occurred between June 4, 1998, and June 4, 1999; that she realized during trial that the December 1999 date was well outside this alleged range; that she failed to object to C.P.’s testimony regarding a date that was outside the dates in the felony information becаuse she felt that the jury was predisposed to believe C.P.’s testimony regardless; that, if there were witnesses in Texas who could have placed appellee there in December 1999, that would have been helpful; and that she was unaware of any such witnesses. Appellee’s sister, Liria Ramirez, testified thаt appellee came to Texas in November 1999 and was there through December “pretty much” every year between 1994 and 2004 due to his seasonal work as a painter. Ramirez also testified that trial counsel had not spoken to [ sher prior to the trial. Appellee’s other sister, Martha Diaz, corroborated Ramirez’s story, testifying that she had picked up appel-lee in Texarkana in November of 1999 and taken him back to Texas, where he remained until the “latter part of January, close to February” of 2000.
Additionally, conflicting testimony was given during the Rule 37.1 hearing regarding whether trial counsel had ever been provided with Ramirez’s and Diaz’s names. Trial counsel testified that she was aware of some witnesses who could place appellee in Texas in December 2000, but that she did not inquire as to whether any witnesses could place him there at other times.
In its order, the circuit court found that trial сounsel had been ineffective in failing to inquire as to whether any witnesses could place appellee in Texas in December of other years alleged in the charging information and that, had she so inquired, it is likely that she would have discovered the existence of Ramirez and Diaz and the testimony that they would have given regarding appellee’s whereabouts in December 1999. This failure to investigate, coupled with counsel’s failure to object to the testimony that placed the incident outside the range in the felony information, prejudiced appellee because, but for those errоrs, there is a reasonable probability that the outcome would have been different on the sexual-abuse charge.
On appeal, the State argues that C.P. testified on re-direct that she could not remember the exact date of the offense, so any testimony by Diaz and Ramirez would not have mаttered, as the jury could give C.P. a margin of error for her recollection and convict appellee of the sexual-abuse charge. This argument is without merit.
|9The State misconstrues C.P.’s testimony regarding confusion about the date of the alleged crime. On direct examination, C.P. testified that it occurred оn or about December 9, 1999, which was when her sister gave birth. On cross-examination, C.P. admitted to initially telling police that the incident occurred on a different date, when her grandfather was sick, which C.P. chalked up to being “probably confused about the dates because it was all in the winter.” During the State’s redireсt examination, C.P. explicitly stated that, after she had talked about the incident more and thought about the situation, she “realized that it was actually the trip — that it was my sister that was giving birth — the trip that it happened up here.” She then stated that there was “no doubt in [her] mind” as to when or where this took place. She аffirmed this specific date on recross-examination, stating that she “determined that this happened on a trip when my sister had her baby after talking to Mr. Jones,” and she again affirmed the date on redirect before being released as a witness.
Clearly, the testimony elicited by the State on direct examination and both rounds of re-direct examination focused on nailing down the December 9, 1999 date as the correct date for the crime and on explaining why C.P. initially got the date wrong. Given this, along with C.P.’s own statements that she had “no doubt” that December 9, 1999, was the correct date, we cannot say that the cirсuit court was clearly erroneous in determining that testimony from two witnesses that directly contradicted C.P.’s testimony and the State’s assertions would not have a reasonable probability of changing the outcome on this charge.
Based on our well-established standard of review under Strickland, we hold that the 1 incircuit court was not clearly erroneous in its rulings on both of appellee’s convictions. Accordingly, we affirm the circuit court’s grant of new trial based on ineffective assistance of counsel.
Affirmed.
Notes
. At trial, C.O. did not testify that her grandparents were sleeping downstairs when the 2001 incident occurred.
. That statute was repealed by Act 1738 of 2001, and first-degree sexual abuse is now codified as second-degree sexual assault at Arkansas Code Annotated section 5-14-125 (Supp.2003).