Chrobak v. State

• Decision Date: 24 October 2001
• Docket Number: 00-1101
• Citation: 58 S.W.3d 387
• Parties: DANIEL SCOTT CHROBAK, APPELLANT, v. STATE OF ARKANSAS, APPELLEE. CACR00-1101 Arkansas Court of Appeals DIVISION IV 24 October 2001 AN APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT HON. JOHN LANGSTON, CIRCUIT JUDGE AFFIRMED. Olly Neal, Judge. LD_!!!!_DL A jury found appellant, Daniel Chrobak, guilty of rape, two counts of first-degree sexual abuse, and pandering or possessing visual medium depicting sexually explicit conduct involving a child. Appellant was sentenced to fifty years in the Arkansas Department of Correction. It is from this conviction that he appeals. The events giving rise to this case began with an investigation by the New York State Attorney General's Office into the transmission and receipt of pornographic images of children via the Internet. In February of 1998, the office focused on an organized group of pedophiles known as the "NewsGroup." On
• Court: Arkansas Court of Appeals

DANIEL SCOTT CHROBAK, APPELLANT v STATE OF ARKANSAS, APPELLEE

CACR00-1101

Arkansas Court of Appeals DIVISION IV

24 October 2001

AN APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [CR99-439] HON. JOHN LANGSTON, CIRCUIT JUDGE AFFIRMED.

Olly Neal, Judge.

LD_!!!!_DL

A jury found appellant, Daniel Chrobak, guilty of rape, two counts of first-degree sexual abuse, and pandering or possessing visual medium depicting sexually explicit conduct involving a child. Appellant was sentenced to fifty years in the Arkansas Department of Correction. It is from this conviction that he appeals.

The events giving rise to this case began with an investigation by the New York State Attorney General's Office into the transmission and receipt of pornographic images of children via the Internet. In February of 1998, the office focused on an organized group of pedophiles known as the "NewsGroup." On July 27, 1998, an individual using the Internet address "Post@them.now" transmitted fourteen messages containing graphic files depicting minors engaged in sexually explicit conduct to the NewsGroup. The Internet service provider, Aristotle.net, confirmed that appellant, Dan Chrobak, had reserved that Internet address.

FBI Agent Jill Hill reviewed the fourteen messages whereupon she determined that the sexually explicit conduct that was exhibited involved children under the age of sixteen. On October 27, 1998, federal agents executed a search warrant on appellant's trailer and seized a videotape and a three-ring binder with photographs of children engaged in sexually explicit conduct. The video contained two scenes. The first scene involved appellant engaged in sexual relations with a female whose torso only was visible in the video. Based on her background and experience, Agent Hill determined that the female in the video was fourteen years of age or younger. Scene two shows a young female sleeping. In the video, appellant touches her buttocks.

The evidence was delivered to Pulaski County Detective Mark Winchester, whereupon he discovered that the young female was A.H., the daughter of K.S., appellant's co-worker. A.H. testified that she was "pretty sure" that she is the sleeping female whose face was not shown in the photograph because she recognized the pajamas and the 3D heart underwear as those she had previously worn. She also stated that she was less than fourteen years old when the events occurred. After further investigation, appellant was arrested and charged.

On appeal, appellant alleges that (1) the evidence taken from his home should have been suppressed, and that (2) there was insufficient evidence to convict him of rape.

Sufficiency of the Evidence

Because of our consideration of prohibitions against double jeopardy, we review the sufficiency of the evidence prior to examining trial error. Diemer v. State, 340 Ark. 223, 9 S.W.3d 490 (2000); see Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998). Appellant argues that because the alleged victim could not positively identify herself as the person portrayed in the video and was only able to identify a pair of pajamas as resembling those she had previously worn, there was insufficient evidence to convict him of rape.

To preserve a challenge to the sufficiency of the evidence, a defendant must make a directed-verdict motion at the close of the State's case and renew it at the close of all the evidence. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999). However, when a defendant presents no evidence after a directed-verdict motion is made, further reliance on that motion is not waived. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994). Here, appellant made a motion for directed verdict and a motion to dismiss at the close of the State's case, and both motions were denied. Although the abstract fails to evidence it, appellant proceeds, for at least forty pages in the record, to address the court. However, appellant did not present any evidence after the directed-verdict motion was made; hence, reliance on the motion is proper, and we reach the merits of appellant's argument.

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000); Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2001). This review includes an evaluation of otherwise inadmissible evidence. Id. (citing Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984)). When reviewing the denial of a directed verdict, the appellate court will look at the evidence in the light most favorable to the State, considering only the evidence that supports the judgment or verdict and will affirm if there is substantial evidence to support a verdict. Johnson v. State, supra. Evidence is sufficient to support a verdict if it is forceful enough to compel a conclusion one way or another. Johnson v. State, supra.

The supreme court has held that the testimony of a rape victim satisfies the substantial-evidence requirement in a rape case. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). The uncorroborated testimony of a rape victim is sufficient to support a conviction if the testimony satisfies the statutory elements. Williams v. State, 331 Ark. 263, 962 S.W.2d 329 (1998). However, circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000); Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999).

We defer to the jury's determination on the matter of witness credibility. Johnson v. State, supra. Jurors do not and need not view each fact in isolation, but rather may consider the evidence as a whole. White v. State, 47 Ark. App. 127, 886 S.W.2d 876 (1994). The jury is entitled to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Id. It is within the province of the jury to accept or reject testimony as it sees fit and inconsistencies in the testimony of a rape victim are matters of credibility for the jury to resolve. Id.

Here, the trial court denied all motions for a directed verdict and appellant was subsequently convicted by a jury of raping victim A.H., who was less that fourteen years of age. A person commits the offense of rape "if he engages in sexual intercourse or deviate sexual activity with another person who is incapable of consent because he is physically helpless or who is less than fourteen (14) years of age." Ark. Code Ann. § 5-14-103(a)(1)(B)(C)(i) (Supp. 2001). Deviate sexual behavior is defined as the penetration, however slight, of the labia majora or anus of one person by any body member of another person. Ark. Code Ann. § 5-14-101(1)(B) (Supp. 2001) (emphasis added). Physically helpless means that a person is unconscious or physically unable to communicate lack of consent or rendered unaware the sexual act is occurring. Ark. Code Ann. § 5-14-101(8)(A)(i)(ii)(B) (Supp. 2001).

To determine whether the trial court erred, it is necessary to review the trial testimony. First, A.H., the victim in the case, testified that she met appellant through her mother. He was her mother's co-worker. She testified that when she first met appellant, he was very kind and generous and acted "like he wanted to get to know me better." They would go to the movies and go shopping. She would go over to his house and play a lot of games and he would buy her "board games and stuff." She never remembered him taking her other sisters or brothers with them.

A.H. further testified that she would go to appellant's trailer, and while there, she would "watch tv and spend the night there playing the computer." Appellant would give her something to eat and drink, usually "for breakfast like eggs and bacon and toast and during lunch probably a sandwich and a coke." When asked whether she ever noticed anything unusual about the coke that he gave her, A.H. responded that "like the coke when you first drink it . . . it [tastes] fresh and it has a fizz to it, and later on when I came back from the bathroom and it didn't have a fizz to it. It tasted not like a coke. I drank it anyway. It happened more than once."

In addition to the foregoing, A.H. stated that appellant touched her "like at nighttime." When she was staying the night and watching television, I rolled over on my chest and he was at the headboard and he started touching me on the vagina area and with his foot, and rubbing back and forth, and asked me if it felt good and then he rolled me over on my chest and started feeling all over my chest. He used his hands to feel on my chest. And he was saying does it feel good. We were on the waterbed. He had touched me earlier that day. I was on the computer earlier that day, and I was playing games, and he come up behind me and startedrubbing on my chest with his hands. ... He was like rubbing in a circular motion. ... Both times, I told him to stop and leave me alone. ... He tried to penetrate me with his penis.

He took his penis out of his pants and I saw it. He did not say anything to me while he was doing that. It made me feel scared and I told my sister. I did not tell my mom because I was scared of what she was going to do to me. I thought I was going to get in trouble. ...

I recognize his bed. It is in his living room. That is the table we used to sit at and eat sometimes when playing the Ouija board at that table. I recognize the red stripedy [sic] cover. I used to sleep with it all the time and be covered up in it. That is where I would sleep when I stayed the night over there. The defendant would sleep on the opposite side of the same waterbed.

From the photo, I recognize my pajamas and my underwear. The underwear are white with 3D hearts on them. My grandma gave me the pajamas for my birthday and I wore them every night. I did wear them over at the defendant's trailer. I remember doing that. I...