Dabney v. State, CR

• Decision Date: 21 October 1996
• Docket Number: No. CR,CR
• Citation: 930 S.W.2d 360,326 Ark. 382
• Parties: Arthur DABNEY Jr., Appellant, v. STATE of Arkansas, Appellee. 96-598.
• Court: Arkansas Supreme Court

Page 360

930 S.W.2d 360

326 Ark. 382

Arthur DABNEY Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-598.

Supreme Court of Arkansas.

Oct. 21, 1996.

John H. Bradley, Blytheville, for appellant.

Brad Newman, Asst. Atty. General, Little Rock, for appellee.

ROAF, Justice.

The Appellant, Arthur Dabney, was convicted in a bench trial of the attempted rape of a patient at a nursing home in Osceola, Arkansas. He was sentenced as an habitual offender to forty years' imprisonment. Dabney asserts on appeal that there was insufficient evidence to support the judge's finding that the victim was incapable of consent because she was physically helpless. We affirm.

At the time of the incident, Dabney was working as a laundry attendant at the nursing home in Osceola. On July 14, 1995, a nurse's aide spotted Dabney's laundry cart outside the room of a fifty-three-year-old patient who was blind, mentally impaired, partially handicapped, and unable to speak. The aide peeked behind a closed curtain in the patient's room and saw Dabney standing by the patient's bed with his pants down around his knees and his penis exposed and in an aroused state. The victim's vest restraint and gown had been removed, and she had been pulled sideways on the hospital bed so that her opened legs hung over the lowered bedrail. Dabney was standing between the victim's legs and was about to penetrate her when he saw that he was being observed by the aide. The aide called to another employee, who entered the room and witnessed Dabney pulling his pants up while standing next to the nude victim. The aide called Dabney out of the room and told him that she was going to notify the supervisor. Dabney responded: "I'm sorry. I said I'm sorry. It's just a white woman anyway."

Dabney waived his right to be tried by a jury; the case was tried before Judge Fogleman of the Mississippi County Circuit Court. The judge found Dabney guilty of attempted rape. Because Dabney had previously been convicted of rape, possession of a controlled substance, and burglary, he was sentenced as an habitual offender to forty years in prison.

Dabney was convicted of violating Ark.Code Ann. § 5-14-103(a)(1) (1995), which provides that:

A person commits a rape if he engages in sexual intercourse or deviate sexual activity with another person who is incapable of consent because he is physically helpless.

A person is "physically helpless" when he or she is "unconscious or is physically unable to communicate lack of consent." Ark.Code Ann. § 5-14-101(5) (1995). For his sole argument on appeal, Dabney asserts that there was insufficient evidence to support the judge's finding that the victim was "physically helpless" because the evidence indicated that she was not "physically unable to communicate lack of consent" as required by the statute.

When reviewing the sufficiency of the evidence, this court does not weigh the evidence presented at trial; this is a matter for the factfinder. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Instead, we will review the evidence in the light most favorable to the State, and we consider only the evidence which supports the guilty verdict. Id. The conviction will be affirmed if the evidence "is forceful enough to compel a conclusion one way or the other and pass beyond mere suspicion and conjecture." Id.

At trial, it was established that the victim was fifty-three years old, blind and was unable to speak. One witness described her as a "tiny" woman under five feet tall. The victim was confined...