D.D. v. State

• Decision Date: 25 November 1992
• Docket Number: No. CA,CA
• Citation: 842 S.W.2d 62,40 Ark.App. 75
• Parties: D.D., a Juvenile, Appellant, v. STATE of Arkansas, Appellee. 92-221.
• Court: Arkansas Court of Appeals

Page 62

842 S.W.2d 62

40 Ark.App. 75

D.D., a Juvenile, Appellant, v. STATE of Arkansas, Appellee.

No. CA 92-221.

Court of Appeals of Arkansas Division I.

Nov. 25, 1992.

C.S. "Chuck" Gibson, II, Dermott, for appellant.

Teena L. White, Asst. Atty. Gen., Little Rock, for appellee.

MAYFIELD, Judge.

This is an appeal from a judgment of Ashley County Chancery Court, Juvenile Division, which found appellant to be a delinquent juvenile because he had committed rape, theft of property, breaking or entering, and criminal mischief. Appellant was committed to the Pine Bluff Youth Services Center, a secure detention facility operated by the Arkansas Youth Services Board.

Appellant argues the trial court erred in denying his motion for directed verdict on the charge of rape, and in allowing the prosecutor to ask the victim leading questions on the subject of "sex" and "sexual intercourse."

A motion for a directed verdict is a challenge to the sufficiency of the evidence. McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988). In resolving the question of the sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the decision of the trier of fact. Ryan v. State, 30 Ark.App. 196, 786 S.W.2d 835 (1990). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or the other, without resorting to speculation or conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989); Ryan, supra.

Appellant was adjudged a delinquent juvenile because of rape by forcible compulsion. Arkansas Code Annotated § 5-14-103(a)(1) (1987) provides a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Both deviate sexual activity and sexual intercourse require penetration "however slight." Ark.Code Ann. § 5-14-101(1) and (9) (1987).

Essentially the appellant argues there was insufficient evidence of penetration to support his conviction. He argues the victim provided no details to substantiate her conclusion that she was raped; that her statements were ambiguous and conclusory; that there was no physical evidence to corroborate her testimony; and that it is reasonable to conclude the victim might equate a physical attack with rape.

In Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986), our supreme court stated:

The testimony of the alleged victim which shows penetration is enough for conviction. Penetration can be shown by circumstantial evidence, and if that evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that is sufficient.

290 Ark. at 385, 720 S.W.2d 282 (citations omitted).

Here the 87-year-old victim testified that appellant grabbed her and commenced beating her; dragged her into the house and then raped her. She said she begged him to behave and to stop; that he raped her in the kitchen and in the living room; and that he had sex with her. The victim testified that she was a married woman; that she had sex with her husband during the years of her marriage; that she understood what it meant for someone to have sex; that this is what happened between her and the appellant; and that she thought appellant finished the sex act because he was "up there long enough." She testified further that while the sex act was going on her dress was completely off.

A number of courts have held similar testimony sufficient to constitute evidence of penetration. In State v. Golden, 430 A.2d 433 (R.I.1981), the victim, a twenty-three-year-old woman, testified that the appellant said the victim was going to "give him sex." A struggle ensued and the victim was cut severely. The victim's recollection was somewhat vague, but she testified the next thing she knew the appellant was on top of her. Three neighborhood youths were in the vicinity. One of them, Alan, testified that he saw the victim and appellant "having sex" and the appellant "going up and down" on the victim; the youths informed Alan's grandmother that they had seen some girl get "raped." And the first officer on the scene testified they "appeared to be having intercourse." The court stated that the victim had stated on several occasions during her testimony that the defendant "had intercourse" and "forceful * * * forcibly [sic] sex" with her and held that when one of understanding testifies to a completed act of sexual intercourse, it has been held to be sufficient proof of penetration. 430 A.2d at 436-37.

In State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968), the victim testified the defendant told her to remove her pants, she became hysterical, and then felt a blow on the head. Thereafter she didn't remember what happened until she came to and "he was in the act of raping me." The court held that the victim's statement that when she regained consciousness the appellant was in the act of raping her was merely her way of saying he was having intercourse with her; she was not expressing her opinion of what happened; but was stating in shorthand fashion her version of the events to which she had already testified.

In State v. Ashford, 301 N.C. 512, 272 S.E.2d 126 (1980), the state argued that the victim testified the defendant had "intercourse" and "sex" with her and that these terms are sufficient as shorthand statements of fact on the issue of penetration. The Supreme Court of North Carolina agreed and held the testimony sufficient to support a finding by the jury that there was penetration.

In State v. Brown, 100 N.M. 726, 676 P.2d 253 (1984), the victim died when after the attack the appellant abandoned her injured, helpless, and unconscious on a winter night. On appeal, the appellant claimed there was a failure of proof of penetration to support his conviction. Nevertheless the court held evidence that the appellant had assisted two co-defendants in forcibly removing the victim's clothing and "then each in turn removed their pants and laid on top of the victim's unclothed body" sufficient for the jury to have reached a reasonable conclusion that the appellant did penetrate the victim.

In State v. Steinbrink, 297 N.W.2d 291 (Minn.1980), a 15-year-old victim testified that "sexual intercourse" occurred, but she was not asked to explain what she meant by "sexual intercourse." The appellate court held that its examination of the record "convinces us" that the victim knew the meaning of the terms ("making love" and "sexual intercourse") which she used to describe the act of penetration.

And in Williams v. Commonwealth, 202 Ky. 664, 261 S.W. 18 (1924), a 16-year-old victim testified the appellant took her off in the woods; that they slept on the ground all night; that they had sexual intercourse; and that she was then 14 years old. The court held:

A...