Davis v. State

• Citation: 207 S.W.3d 474
• Decision Date: 21 April 2005
• Docket Number: No. CR 04-596.,CR 04-596.
• Parties: Charles Harvest DAVIS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Supreme Court of Arkansas

207 S.W.3d 474

Charles Harvest DAVIS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 04-596.

Supreme Court of Arkansas.

April 21, 2005.

COPYRIGHT MATERIAL OMITTED

Gina H. Reynolds, Bryant, for appellant.

Mike Beebe, Att'y Gen., by: Valerie L. Kelly, Ass't Att'y Gen., Little Rock, for appellee.

DONALD L. CORBIN, Associate Justice.

Appellant Charles Harvest Davis appeals the order of the Pulaski County Circuit Court convicting him of the offense of sexual assault in the second degree and sentencing him to a term of twenty years' imprisonment. On appeal, he argues that the trial court erred in: (1) denying his motion for a directed verdict; (2) admitting hearsay evidence as an excited utterance; and (3) admitting evidence under Ark. R. Evid. 404(b). This case was certified to us from the Arkansas Court of Appeals as involving an issue of first impression and an issue needing consistent development of the law; hence, our jurisdiction is pursuant to Ark. R. Sup.Ct. 1-2(b)(1) and (b)(5). We affirm.

The record reveals that on October 27, 2002, S.P.B., the victim in this case, was practicing with the other members of her church's praise dance team. While they were practicing, she noticed Appellant watching them. Then as the group was leaving the church, Appellant tried to get one of the members to return to the sanctuary to turn the lights off. After telling Appellant to turn the lights off himself, the group left. S.P.B. then got into her car and started traveling down Geyer Springs Road toward Lancaster Road when she noticed a silver car speeding up behind her. According to S.P.B., she stopped at a yellow light and the silver car almost rearended her. She then noticed Appellant was driving the silver car and that he was motioning her to pull her vehicle over. S.P.B. turned into the parking lot of an abandoned school, and Appellant asked her to return to the church with him because he had forgotten something. S.P.B. agreed and followed Appellant back to the church.

Once at the church, the two parked in a rear parking lot and rode an elevator to an upstairs conference room. According to S.P.B., once they entered the conference room, Appellant shut the door, turned off the light, pushed her against a wall, and started trying to kiss her. She asked him what he was doing, and he told her that he knew she had been looking at him the same way he looked at her. S.P.B. asked Appellant to turn on the light, but he grabbed her again and shoved her against a table, but she pushed him off of her. She again asked him to turn on the light, and Appellant started apologizing to S.P.B. S.P.B. told Appellant that nothing was going to happen between them, and she reminded him that she was on the praise dance team with his wife. At that point, Appellant told S.P.B. that his wife knew about the attraction and wanted to have a threesome with S.P.B. He again tried to grab S.P.B., touching her buttocks and her breast during the struggle. S.P.B. told Appellant that he had three minutes to open the door. Before he finally opened the door, Appellant grabbed S.P.B.'s arm and asked if he could suck on her breast. She then heard him unzip his pants, and he then asked if he could masturbate in front of her. He also asked her to engage in oral sex. She refused and told him that she wanted out of the conference room.

Appellant finally opened the door, and he and S.P.B. rode the elevator back down to the first floor of the church. S.P.B. stated that she did not show any emotion at the time because she knew she was in the church with him by herself and was afraid that he might attack her again. She simply walked out of the church and got into her car. Once Appellant left, S.P.B. called a friend, Jackie Seals, and told her what happened. Shortly thereafter, S.P.B. met the rest of her praise dance team at Faith Temple where they were scheduled to perform. S.P.B. explained what happened with Appellant, and the team members decided to meet with the church's pastor after the performance. The next morning, the church pastor contacted Appellant and told him that he would no longer be the church's youth minister.

The next day, S.P.B. went to the police and reported what had occurred in the conference room. On February 19, 2003, Appellant was charged by felony information with one count of criminal attempt to commit rape. He was also charged as a habitual offender. Appellant was tried before a jury in Pulaski County Circuit Court on November 20-21, 2003. He was convicted of the lesser-included offense of sexual assault in the second degree. Appellant was sentenced, as a habitual offender, to a term of twenty years' imprisonment. This appeal followed.

I. Sufficiency of the Evidence

For his first point on appeal, Appellant argues that the trial court erred in denying his motion for a directed verdict because there was insufficient evidence to support his conviction on the charge of sexual assault in the second degree because the State failed to prove the element of forcible compulsion. The State counters that Appellant failed to preserve this issue for our review. Alternatively, the State argues that there was substantial evidence supporting Appellant's conviction.

Before turning to the merits of this point, this court must first determine whether the issue is preserved for appellate review. The State argues that Appellant failed to preserve his argument regarding the sufficiency of the evidence because he did not specifically move for a directed verdict on the lesser-included offense of second-degree sexual assault. In support of its argument the State relies on this court's decision in Grillot v. State, 353 Ark. 294, 304-05, 107 S.W.3d 136, 142 (2003). In that case, this court stated:

This court has held that, in order to preserve challenges to the sufficiency of the evidence supporting convictions for lesser-included offenses, defendants must address the lesser-included offenses either by name or by apprising the trial court of the elements of the lesser-included offenses questioned by their motions for directed verdict. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001) (concluding that challenge to the sufficiency of the evidence to support a first-degree murder conviction was procedurally barred when the defendant was charged with capital murder and failed to move specifically for directed verdict on the lesser-included offense of first-degree murder); see also Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001).

This court went on to conclude in Grillot that the appellant had failed to preserve his argument regarding the sufficiency of the evidence supporting his first-degree-murder conviction because at trial he only challenged the evidence supporting the greater offense of capital murder.

Here, however, Grillot is not applicable, because Appellant was charged with criminal attempt to commit rape by forcible compulsion. He was convicted of sexual assault in the second degree, which is prohibited under Ark.Code Ann. § 5-14-125 (Supp.2001). That section provides that a person commits the offense of sexual assault in the second degree by engaging in sexual contact with another person by forcible compulsion. At the conclusion of the State's case in chief, Appellant moved for a directed verdict arguing:

[T]he State has failed to make a prima facie case that Charles Harvest Davis is guilty of criminal attempt to commit rape, that he made a substantial step in the commission of the offense of rape, forcible compulsion, the sexual activity.

This motion was renewed at the close of all the evidence when Appellant again argued that the State failed to make a prima facie case of attempted rape by forcible compulsion. Then, when the trial court instructed the jury on criminal attempt to commit rape and the lesser-included offense of sexual assault in the second degree, the court gave one instruction that stated:

To sustain this charge, the State must prove the following things beyond a reasonable doubt:

First: That Charles H. Davis engaged in sexual contact with the sex organs of S.P.B.;

And second: That Charles H. Davis did so by forcible compulsion.

Thus, when Appellant challenged the State's case by arguing that it had failed to prove forcible compulsion, this was sufficient to preserve a challenge to the sufficiency of the evidence on the lesser-included offense of sexual assault in the second degree. As this court recognized in Grillot, it is not necessary to specifically state the lesser-included offense by name, as long as the elements of that lesser-included offense are addressed in the directed-verdict motion. In this case, that element was forcible compulsion, and it was addressed in Appellant's directed-verdict motion.

Having determined that Appellant preserved this issue for our review, we now turn to the merits of Appellant's argument that there was insufficient evidence supporting his conviction. Appellant argues that the State failed to prove the element of forcible compulsion. Specifically, he argues that S.P.B.'s testimony that she did not consent to his advances was clearly unbelievable and should therefore be disregarded by this court. We disagree.

The standard of review in cases challenging the sufficiency of the evidence is well established. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Parker v. State, 355 Ark. 639, 144 S.W.3d 270 (2004); Reed v. State, 353 Ark. 22, 109 S.W.3d 665 (2003). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or...