Brown v. State

• Decision Date: 02 October 2008
• Docket Number: No. CR 07-1178.,CR 07-1178.
• Citation: 374 Ark. 341,288 S.W.3d 226
• Parties: Alfred Lavorice BROWN, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

288 S.W.3d 226

374 Ark. 341

Alfred Lavorice BROWN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 07-1178.

Supreme Court of Arkansas.

October 2, 2008.

Wright & Van Noy, by: Herbert T. Wright, Jr., P.A., Little Rock, AR, for appellant.

Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Justice.

Appellant, Alfred Lavorice Brown, appeals the judgment of the Pulaski County Circuit Court convicting him of second-degree sexual assault and sentencing him as a habitual offender to imprisonment for 276 months. On appeal, Appellant argues the trial court erred in denying his motions for directed verdict and continuance. The Arkansas Court of Appeals issued a three division, 5-4 opinion finding there was sufficient evidence to support the judgment but that the trial court erred in denying Appellant's motion for a continuance. Brown v. State, 100 Ark.App. 172, 265 S.W.3d 772 (2007). The court of appeals accordingly reversed and remanded for a new trial. The State then petitioned this court for review of the court of appeals' decision, contending it was inconsistent with our prior case law on issues that are in need of clarification. We granted the State's petition for review pursuant to Arkansas Supreme Court Rule 1-2(e). When we grant review of a decision by the court of appeals, we review the case as though the appeal was originally filed in this court. Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007). Upon such review, we find no error and affirm the judgment of conviction.

Appellant was charged by felony information with four counts of sexual crimes against two children. Appellant was charged with two counts of rape and one count of second-degree sexual assault against A.B., his biological daughter who was approximately eight to ten years old at the time of the alleged crimes. Based on facts discovered while the State was preparing for trial, the State amended the information to include one count of rape of D.A., the then-nine-year-old daughter of Appellant's live-in girlfriend. All four counts were tried together. The jury acquitted Appellant of the three rape charges and found him guilty of second-degree sexual assault.

Sufficiency of the Evidence

For his first point for reversal, Appellant contends the trial court erred in denying his motion for a directed verdict. At the close of the State's case, Appellant moved for a directed verdict on the charge of second-degree sexual assault on the basis that there was insufficient and inconsistent evidence of sexual contact with the victim, A.B. Appellant renewed his motion at the close of all the evidence. The trial court denied both motions.

We treat the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. Evidence is substantial if, when viewed in the light most favorable to the State, it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Matters such as evaluating a witness's credibility and resolving inconsistencies in the evidence are issues for the jury and not the court. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). On appellate review, it is permissible to consider only that evidence that supports the guilty verdict. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003).

A rape victim's testimony may constitute substantial evidence to sustain a conviction of rape, even when the victim is a child. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995). The rape victim's testimony need not be corroborated, nor is scientific evidence required, and the victim's testimony describing penetration is enough for a conviction. Id. The principle that a victim's uncorroborated testimony constitutes substantial evidence to support a guilty verdict is likewise true with respect to sexual offenses other than rape. See, e.g., Arnett, 353 Ark. 165, 122 S.W.3d 484 (incest); Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994) (sexual solicitation).

The crime at issue here is sexual assault in the second degree, which is defined as a person eighteen years of age or older, engaging in sexual contact with another person who is less than fourteen years old and not the person's spouse. Ark.Code Ann. § 5-14-125(a)(3) (Repl.2006). "Sexual contact" is defined as "any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female." Ark.Code Ann. § 5-14-101(9) (Repl.2006).

The following evidence, as viewed most favorably to the State, was presented at trial. Amberlea Anderson testified that she and her children, including her daughter D.A., lived with Appellant and his children, including A.B., for part of 2004. During that time, Ms. Anderson heard A.B. talking to A.B.'s mother on the phone about a rape incident with Appellant. Ms. Anderson stated that the phone conversation gave her cause for concern, so she spoke with A.B. about it. Two days later, although she continued to date Appellant, Ms. Anderson and her children moved from Appellant's home.

A.B. was eleven when she testified at trial. She stated that while she was living with Appellant and Ms. Anderson, Appellant would sometimes "undress me, and just try to put him in—put his private part in me." When asked to describe her father's private part, she replied that it looked like "[a] pole." When asked where Appellant put his private part, she replied, "[i]n my behind." A.B. added that "[s]ometimes he would put it in—by my— my private part." A.B. stated that her father did this more than twice, sometimes in the living room and sometimes in the bathroom.

A.B. testified further that, prior to the assault that occurred while she lived with her father and Ms. Anderson, her father assaulted her while A.B. lived with her mother. A.B. stated that Appellant "would come in and touch me while my mom sleeped." When asked how Appellant touched her, A.B. replied, "[h]e would rub on my behind."

A.B. testified that after her father sexually assaulted her, she began having back pain and problems going to the restroom. She stated that her grandmother took her to the doctor for these problems. Dr. Becky Latch, a pediatrician who was qualified as an expert in child abuse and sexual abuse, testified that she examined A.B. in the Arkansas Children's Hospital emergency room in January 2005. Dr. Latch remembered A.B.'s grandmother bringing her in with complaints of possible sexual abuse. Dr. Latch stated that A.B.'s exam was normal, with no findings to confirm sexual abuse. However, she explained that, because the anal and vaginal tissues heal so quickly, even in cases where there is an admission of penetration, only six to ten percent of children examined for sexual abuse will actually show physical signs to confirm such abuse. Dr. Latch explained further that the constant trauma of putting something in the anus can actually damage the nerves so that a child will not recognize when he or she needs to have a bowel movement, which can lead to constipation and back pain.

Although there was other evidence presented at trial from both sides, we need not repeat it here because the foregoing testimony of the victim that Appellant "would rub on my behind," and that he put his private part "[i]n my behind," is substantial evidence to support the guilty verdict of sexual assault in the second degree. Even though Appellant denied the allegations of sexually assaulting his daughter, the jury is not required to believe his self-serving testimony. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). Although the prosecuting witness contradicted her testimony, and although her credibility may have been called into question, the jury was free to believe all or part of her testimony and disbelieve Appellant's assertions. Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002). Furthermore, while it is true, as Appellant points out, that A.B.'s testimony was at times inconsistent, the issue of a witness's inconsistent statements is a matter of credibility left to the jury's discretion. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). Where the jury as trier of fact has given credence to inconsistent testimony, this court will not reverse unless the testimony is inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. Id. None of those three circumstances exists here.

In sum, the victim testified that Appellant committed the crime. There is no requirement of corroboration, and the credibility of the evidence and any inconsistencies therein were for the jury to resolve. The victim's testimony was substantial evidence to support the jury's finding of guilt. The trial court therefore did not err in denying Appellant's motion for directed verdict.

Motion for Continuance

Appellant's second point for reversal is that the trial court erred by denying his motion for a continuance or change of trial date due to the unavailability of a witness. A review of the procedural history is helpful to an understanding of Appellant's argument.

On January 10, 2006, Appellant requested and received a continuance until March 7-8, 2006, because he had been appointed new trial counsel. His previous counsel had developed a conflict as a result of plea negotiations with A.B.'s mother. On March 3, 2006, Appellant requested and received another continuance until May 10-11, 2006, because the State had recently amended the information to include the fourth count involving an additional victim, D.A.

On March 7, 2006, Appellant filed a motion for continuance of the jury trial, which was still set for May 10-11, 2006. Attached to the motion was an affidavit from Appellant's trial ...