Hickey v. State, 2010 Ark. 109 (Ark. 3/4/2010)

• Decision Date: 04 March 2010
• Docket Number: CR 09-878.
• Citation: 2010 Ark. 109
• Parties: George HICKEY, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 1

2010 Ark. 109

George HICKEY, Appellant, v. STATE of Arkansas, Appellee.

CR 09-878.

Supreme Court of Arkansas.

Opinion Delivered March 4, 2010.

Appeal from the Circuit Court of Pulaski County, No. CR 2006-3560, Hon. Judge. Herbert Thomas Wright, Jr.,

Affirmed.

RONALD L. SHEFFIELD, Associate Justice.

Appellant George Hickey appeals his conviction for the rape, kidnapping and first-degree terroristic threatening of Gayle Miller. He was sentenced to life imprisonment and received an additional forty (40) years for each of the other two charges, to be served concurrently. On appeal, Appellant raises two points of error: (1) the State failed to produce sufficient evidence to support his conviction for rape; and (2) the State failed to produce sufficient evidence to support his conviction for kidnapping. We affirm on all points.

On April 7, 2006 Gayle Miller and Tamara "Pam" Wills were walking near the Hudson Fish Market in North Little Rock, Arkansas. They had spent time together throughout that day. In the evening they began smoking crack cocaine and drinking alcoholic beverages. They encountered Derrick "DB" Baker, a friend of Miller, and his friend, Appellant George Hickey. Appellant and Baker were driving in the area and stopped by the side of the road to talk to Miller and Wills. Baker invited the women to go drinking with them and offered the women some vodka. Miller accepted the invitation and they proceeded to Appellant's house to continue drinking. They were in Appellant's home drinking and talking when Baker passed out in a chair. Appellant made some comments to Miller that were disrespectful. Miller responded to those remarks and stated that she was going to leave. Appellant stood up and slammed the front door and said, "You ain't going nowhere, bitch." Miller called out to Baker but he was unresponsive. Appellant told Miller to get in his room. When Miller refused Appellant slapped her in the face and told her, "Get in the room, bitch." He also stated, "I got a .380 bitch," and threatened to kill her if she said anything.

Appellant walked Miller through the house to his room. Once she entered the room, Appellant closed the door to the room. He told Miller to get out of her clothes and that she belonged to him. After he made her take her clothes off, he had Miller bend over and proceeded to have sex with her. He then had her turn around and forced her to perform oral sex on him. He ejaculated on Miller's face. After ejaculating, Appellant bent over and had Miller stick her fingers in his anus and then lick them. Afterward, he told her not to say anything about the incident or he would kill her. He had her wipe her face with a towel to remove any ejaculate. He then told her to put her clothes on and get out. After Miller put her clothes on, she quickly left the house and saw that Baker was still passed out in the chair as she exited. Once outside the house, she ran down the street crying and yelling. A woman came up to her and asked her what happened. Miller told her about the rape. The woman called 911. When the police officer arrived, he found Appellant and Baker sitting in a car outside of Appellant's house listening to music. He asked about any incidents involving a woman. Appellant stated that a woman had stopped by, briefly, asking for some crack but he told her that he did not sell drugs. She then left. Appellant told the officer that he had to leave to go visit his wife and ended the questioning. The officer continued to search the neighborhood and found Miller, who was in an agitated emotional state at this point. Miller told him about the rape and was then transported to a hospital where the doctors examined Miller and collected samples for DNA analysis. The sample did not match Appellant but instead matched the DNA of Miller's fiancé.

Based on the evidence, Appellant was tried and convicted of rape, kidnapping and first-degree terroristic threatening by a jury. A previous trial had resulted in a hung jury. He was sentenced to life imprisonment with an additional forty (40) years concurrent sentences for each of the other two charges. This court has jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(2) (2009).

I. Sufficiency of the Evidence-Rape

For his first point on appeal, Appellant argues that the State failed to produce sufficient evidence to convict Appellant of the charge of rape. The test for determining the sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Ellis v. State, 364 Ark. 538, 222 S.W.3d 192 (2006). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Rounsaville v. State, 2009 Ark. 479, ___ S.W.3d ___. In addition, the credibility of witnesses is an issue for the jury and not the court. Id. The fact-finder is free to believe all or part of the witness's testimony and resolve questions of conflicting testimony and inconsistent evidence. Id. Rather than reweighing the evidence presented at trial, this court determines whether there is substantial evidence to support the lower court's findings. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998).

Appellant was convicted of rape in violation of Arkansas Code Annotated § 5-14-103(a)(1), which states the following:

(a) A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person:

(1) By forcible compulsion;

Ark. Code Ann. § 5-14-103(a)(1) (Supp. 2009). Furthermore, Arkansas Code Annotated § 5-14-101(2) defines "forcible compulsion" as "physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person." (Emphasis added). Ark. Code Ann. § 5-14-101(2) (Supp. 2009).

In Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998), we stated that "physical force" is "any bodily impact, restraint or confinement, or the threat thereof." Id. (citing Strawhacker v. State, 304 Ark. 726 804 S.W.2d 720 (1991)). The test used to determine whether there was force is "whether the act is against the will of the party upon whom the act was committed." Freeman, supra, at 133, 959 S.W.2d at 401. In Ellis v. State, 364 Ark. 538, 222 S.W.3d 192 (2006), we noted that this Court "has continually held that a rape victim's testimony alone is sufficient and is substantial evidence to support a rape conviction." Id. "Uncorroborated testimony of a rape victim is sufficient evidence to support a conviction. Inconsistencies in the rape victim's testimony are matters of credibility that are left for the jury to decide. The jury may accept or reject testimony as it sees fit." Ward v. State, 370 Ark. 398, 260 S.W.3d 292 (2007).

With these principles in mind, and viewing the evidence in the light most favorable to the verdict, we conclude that there was sufficient evidence to support Appellant's conviction of rape. Although Appellant offers testimony that conflicts with Miller's testimony and the evidence presented at trial, we need only limit our review to those facts supporting the verdict to conclude that there is sufficient evidence to support the conviction of rape. Miller testified that she was forced to engage in deviate sexual activity with Appellant and, after the attack, she ran from the house where she was eventually found by police. She was also examined by an emergency room physician who indicated that Miller was distraught and agitated and complained of pain during the examination. Although a semen sample collected during the examination did not match the DNA of the Appellant, but, rather that of the fiancé, Miller's testimony need not be corroborated. Furthermore, it is for the jury to decide whether the testimony was credible. Thus, based on the jury's findings, Miller's testimony was credible and there was sufficient evidence to support Appellant's conviction for the charge of rape.

II. Sufficiency of the Evidence-Kidnapping

For his final point on appeal, Appellant challenges the sufficiency of the evidence supporting his conviction of kidnapping. He contends that the State failed to establish that the restraint he used exceeded that force normally incident to the underlying crime of rape. Appellant claims that the restraint used, coupled with Miller's consent to come over to his house, indicates that he does not meet the element of restraint needed for the separate conviction of kidnapping.

Arkansas Code Annotated § 5-11-102 defines when a kidnapping has occurred and states that:

(a) A person commits the offense of kidnapping if, without consent, the person restrains another person so as to interfere substantially with the other person's liberty with the purpose of:

. . . .

(5) Engaging in sexual intercourse, deviate sexual activity, or sexual contact with the other person;

Ark. Code Ann. § 5-11-102(a)(5) (Supp. 2009). In addition, Arkansas Code Annotated § 5-11-101(3)(A) states that "`restraint without consent' includes . . . restraint by physical force, threat, or deception . . . ." Ark. Code Ann. § 5-11-101(3)(A) (Supp. 2009). As a preliminary matter, we have stated that double jeopardy does not attach to the crime of kidnapping and rape as they are two separate offenses. See White v. State, 301 Ark. 74, 781 S.W.2d 478 (1989). Furthermore, a person is subject to prosecu...