hOn August 15, 2013, a Mississippi County jury found appellant Robbie Ward guilty of raping a two-year-old girl (TG) and sexual indecency with a five-year-old boy (HB). Ward was sentenced to a total of thirty-six years’ imprisonment in the Arkansas Department of Correction. He nоw appeals arguing that there was insufficient evidence to support his convictions; that all testimony from HB should have been excluded; and that certain statements made by a social worker who testified at trial were inadmissible hеarsay. The State responds that the evidence was more than sufficient to support the convictions and that both questionable evidentia-ry rulings were harmless error, if error at all. We agree and affirm the convictions.
First, in consideration of whether there was substantial evidence to support the rape and sexual-indecency convictions, we view the evidence in the light most favorable to the State and consider only the evidence that supрorts the verdict. Beaver v. State,
A person commits rape if he engages in deviate sexual activity with another person who is less than fourteen years of age. Ark.Code Ann. § 5-14-103(a)(3)(A) (Supp.2011). “Deviаte sexual activity” includes any act of sexual gratification involving the penetration, however slight, of the mouth of a person, by the penis of another person or the labia ma-jora of a person by any body member of another person. Ark.Code Ann. § 5-14-101(1)(A), (B) (Supp.2011). A jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanation of incriminating conduct. Green v. State,
The evidence hеre shows that Mark Griffin, the father of TG, lived with his fiancee, Christie Owens, and her son, HB. Griffin testified on November 15, 2012, he and Owens went to Walmart to cash their paychecks and left their children with Owens’s uncle, Donnie Adamson. It is unclear from the record when Adamson left and Ward (apparently a family acquaintance) arrived at the home; but when Griffin and Owens returned, they could locate neither Adamson nor the children. Griffin testified that on investigation, they discovered that the door to his and Owens’s bedrоom was locked but that he was able to push it open. Griffin testified that when he entered the room, he saw the children essentially naked and Ward “at the end of the bed with his [penis] in his
|STG and HG were takеn to the hospital and tested for evidence of rape. Heather Farrell, an expert in forensic serology from the Arkansas State Crime Laboratory (ASCL) testified that the test revealed the presence of semen on an oral swab taken from TG. Morgan Nixon, a DNA expert from the ASCL testified that a partial DNA profile consistent with Ward was found on a vaginal swab taken from TG.
Owens testified that she entered the room at the same time as Griffin and grabbed the kids. Owens askеd HB if Ward had touched him and TG, and HB replied “yes,” adding that “[Ward] peed on us.” HB told the same story to Barbara Weaver, a case worker with the Arkansas Department of Human Services (DHS), who testified about HB’s account of events at trial. Wеaver and HB had a counseling relationship that predated the criminal activity due to certain developmental delays from which HB suffered. Finally, HB testified at trial describing the same events that were presented by Owens and Weavеr in their testimony.
According to Ward, he was intoxicated at the time of the incident and believed he was at home urinating in his bathroom. He further explained that it was possible that the DNA semen was found in TG’s mouth and vagina because he had engаged in sexual intercourse with an unidentified woman earlier in the day and had failed to wash his hand afterward. He suggested that the semen found inside TG resulted from him giving her a drink and changing her diaper earlier in the day. Ward also noted that Owens may havе transferred the DNA from the house to the child when she picked the child up from the bed. In the end, Ward testified that Griffin and Owens were “making it up” and that Owens had once accused him of “setting her great uncle up for marijuana and some crystal mеth[.]”
|4However, viewing the evidence in the light most favorable to the State, we are more than satisfied that the facts established at trial, coupled with Ward’s improbable explanation of the events relating to how his semen entered TG’s body, support the rape conviction, and we affirm.
Ward also challenges the sufficiency of the evidence to support his sexual-indecency conviction, based on the jury’s conclusion that he exposed himself to а five-year-old boy for the purpose of sexual gratification. A person commits sexual indecency with a child if, with the purpose to arouse or gratify a sexual desire of himself, the person purposely exposes his sex organs to another person who. is. less than fifteen years of age. Ark.Code Ann. § 5-14-110(a)(2)(A) (Supp.2011). Further, it is not necessary that the State provide direct proof that an act is done for sexual gratification if it can be inferred from the cirсumstances. Newton v. State,
In this case, both Griffin and Owens testified that they saw Ward in their bedroom with HB and TG and that Ward’s penis was exposed at the time. HB testified that Ward had his pants and underwear off and that he “peed” in HB’s hand. Also, the children were undressed and his semen and partial DNA were found in oral and vaginal swabs taken from TG. There is ample evidence for the jury to reasonably infer that Ward exposed himself to the children with the purpose to arouse or gratify his sexual desirе. We affirm on this point as well.
In his third point on appeal, Ward complains that the trial court erred in its assessment of HB’s competency to testify at trial. The question of competency
Here, the facts show that even the State admitted that it “struggled with the competеncy issue” and at one point stipulated that HB was not competent to testify. However, the trial court refused the stipulation, noting the absence of evidence showing that HB was not competent at that preliminary point, but resеrved the issue for further consideration, as “it might come up again.” However, we agree with Ward that HB’s testimony at trial is remarkably incoherent. When asked “what is a lie” HB responded “because him think — I tell you that.” To the query “can | ¡¡you tell me whаt a he is” HB responded “not again.” When asked “what color is this shirt here” HB responded “white (moments later) purple.” HB was asked what happens to someone if he or she does not tell the truth, and he answered “because.” When askеd “what happens to YOU if you do not tell the truth,” he replied “my mom kicked Robbie in the face.” Later, HB was more pointedly asked “what happens when you tell a He, is that a good thing or a bad one” to which HB responded “bad.” Howevеr, to the follow-up question “why is it bad” HB responded “because him there is.” After being asked “do you get in trouble when you tell the truth,” HB responded “no.” But, when he was asked “do you get in trouble when you tell a lie,” HB said, “nope go over there.” He alsо stated that Ward “touched Tater Bug’s privates,” but could not identify what body parts “privates” were. Additionally, he was asked where he was when the incident happened and replied “because.” Then, to the follow up “where were yоu,” HB said, “because, momma, you are crazy.”
While we are mindful that there are some children of HB’s age who would meet all requisites for competency as a witness, we agree with Ward that in this case it was error to allow HB to testify. However, reversal is unwarranted because all of the facts relayed by HB were also admitted into evidence through his mother’s account of events and her testimony as to how HB described the incident to her, which is not challenged on appeal. Therefore, although it was error
The final point of error raised by Ward also has merit. At the pretrial hearing, the deputy prosecutor, Curtis Walker, explained that it was the intention of the State to introduce statements made by HB to Weaver, his DHS therapist. Ward objected claiming that any statement made by HB to Weaver was hearsay. However, the State maintained that the statements were admissible under Arkansas Rules of Evidence Rule 803(4) as statements made for purposes of medical diagnosis or treatment. Although Weaver described herself as a “ihental health therapist,” based on her Master’s degree in social work and twenty-five years’ experience, she was neither a doctor nor a nurse. And, according to our established precedent, a social worker cannot testify pursuant to the medical exception because a social worker does not qualify as a medical expert, and the resulting testimony is not admissible pursuant to the medical exception as it does not possess the necessary degree of reliability. Meins v. Meins,
Affirmed.