Kelley v. State

• Court: Arkansas Supreme Court
• Writing for the Court: Jim Hannah
• Citation: Kelley v. State, 375 Ark. 483, 292 S.W.3d 297 (Ark. 2009)
• Decision Date: 05 February 2009
• Docket Number: No. CR 08-926.,CR 08-926.
• Parties: Billy Joe KELLEY, Jr., Appellant, v. STATE of Arkansas, Appellee.

292 S.W.3d 297

375 Ark. 483

Billy Joe KELLEY, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CR 08-926.

Supreme Court of Arkansas.

February 5, 2009.

Bill Luppen, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by Brad Newman, Ass't Att'y Gen., for appellee.

JIM HANNAH, Chief Justice.

A Pulaski County jury convicted appellant Billy Joe Kelley, Jr., of the rape of nine-year-old M.W., and he was sentenced as a habitual offender to a term of life imprisonment. On appeal, he contends that the circuit court erred (1) in denying his motion for directed verdict; (2) in allowing the State to introduce into evidence that the victim testified positive for chlamydia, without the testimony of the technician who performed the test; and (3) in refusing to allow him to ask the victim's mother if she had chlamydia. Because this is a criminal appeal in which a sentence of life imprisonment has been imposed this court has jurisdiction pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2008). We affirm the circuit court.

Kelley first contends that the circuit court erred in denying his motion for directed verdict on the charge of rape. Specifically, he contends that there was no evidence that penetration occurred, and he asserts that the State provided no evidence that identified him as the person who raped M.W.

In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, considering only the evidence supporting the verdict, to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The statute under which Kelley was convicted is Arkansas Code Annotated section 5-14-103(a)(3)(A) (Supp.2007), which provides that a person commits rape "if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen (14) years of age."

M.W. testified at trial that Kelley engaged in sexual contact with her in November and December 2006, while he was living in a house with her, her mother, and three brothers. M.W. testified that, during that time, Kelley touched her vagina with his penis. M.W. stated that when Kelley touched her vagina with his penis, it was on "the inside." M.W. related that some of the incidents occurred in the morning and others occurred during the evening while her mother was at work and her brothers were not home. M.W. stated that it "hurted" when Kelley did this to her, and that she eventually told her neighbor, Phyllis Gordon, about what had been happening because she was "tired of it" and wanted it to stop. M.W. also testified that after the incidents occurred, she noticed a burning sensation when she went to the bathroom. M.W. stated that sometimes her stomach hurt "after he did it."

Dr. Maria Esquivel examined M.W. at Arkansas Children's Hospital on January 22, 2007. Dr. Esquivel testified that M.W., who was born on August 10, 1997, was about nine years old at the time of the examination. She stated that M.W. had a very thin hymen, and that based on this finding, she suspected that there may have been penetration into the vagina. Dr. Esquivel stated that she did not find any acute, or fresh, injuries, but she explained that any injuries inflicted in November and December would have had time to heal. She also tested M.W. for sexually transmitted diseases and learned that a swab from M.W.'s rectum tested positive for chlamydia. Dr. Esquivel testified that chlamydia is spread either "by active intercourse or by very close genital to genital contact." She stated that many women who have chlamydia may be asymptomatic but that some women experience burning upon urination.

Kelley contends that there is insufficient evidence to sustain a conviction for rape because M.W. provided contradictory testimony, with respect to when the incidents occurred and where in the house the incidents occurred. He states that the testimony of M.W.'s mother and brothers contradicted M.W.'s testimony as to when and where the incidents occurred. Generally, the time a crime is alleged to have occurred is not of critical significance unless the date is material to the offense. Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003). This is particularly true with sexual crimes against children. See id. Any discrepancies in the evidence concerning the date of the offense are for the jury to resolve. Id. Moreover, the duty of resolving conflicting testimony and determining the credibility of witnesses is left to the discretion of the jury. Hayes v. State, 374 Ark. 384, 288 S.W.3d 204 (2008). Here, it was for the jury to resolve any inconsistencies in testimony with respect to when and where the incidents occurred.

Kelley also contends that the State's medical evidence contradicts M.W.'s testimony that he put his penis inside her vagina. He states that the only physical evidence that M.W. had sexual contact with another person was that a swab from her rectum tested positive for chlamydia.

A rape victim's testimony may constitute substantial evidence to sustain a conviction for rape, even when the victim is a child. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008). The rape victim's testimony need not be corroborated, nor is scientific evidence required. Id. More particularly, this court has stated that the testimony of the victim which shows penetration is enough for conviction. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995). Under the facts of this case, M.W.'s testimony constitutes substantial evidence that Kelley penetrated M.W.'s vagina with his penis. Moreover, Dr. Esquivel's testimony established that M.W. was nine years old at the time the incidents occurred, and her testimony regarding the appearance of M.W.'s hymen was suggestive of a sexual assault. Finally, any inconsistencies in the testimony of witnesses is a matter for the jury to resolve. We hold that the circuit court did not err in denying Kelley's motion for directed verdict as there was sufficient evidence to sustain a conviction for rape.

Prior to trial, Kelley stated that he would object to evidence that M.W. tested positive for chlamydia unless the laboratory technician who performed the test testified at trial. Kelley's objection was based upon "rules of evidence," chain-of-custody grounds, and the confrontation clause. The State indicated it would introduce the evidence through the testimony of Dr. Esquivel, who examined M.W., but did not perform the lab work for the chlamydia test. Prior to trial, the circuit court ruled that, while the lab report showing M.W.'s positive test for chlamydia was hearsay, Dr. Esquivel reasonably relied upon it in forming her opinion that M.W. had chlamydia. Accordingly, pursuant to Arkansas Rule of Evidence 703, the circuit court denied Kelley's motion to exclude evidence about the disease. The record reflects that the circuit court did not address Kelley's confrontation-clause or chain-of-custody claims.

The circuit court has wide discretion in making evidentiary rulings, and we will not reverse its ruling on the admissibility of evidence absent an abuse of discretion. Jackson v. State, 375 Ark. 321, 290 S.W.3d 574 (2009). The failure to obtain a ruling on an issue at the trial court level, including a constitutional one, precludes review on appeal. Jackson v. State, 334 Ark. 406, 976 S.W.2d 370 (1998). Because Kelley failed to obtain rulings on his confrontation-clause and chain-of-custody arguments, we will not consider those arguments on appeal.

We now turn to Kelley's arguments that are preserved for appeal. At trial, Dr. Esquivel testified that cultures were taken from M.W. and sent to the lab. She testified that the lab later notified her clinic that M.W.'s rectal culture had tested positive for chlamydia. Dr. Esquivel stated that she treated M.W. for chlamydia with an antibiotic.

Kelley claims that the circuit court erred when it allowed Dr. Esquivel to testify that M.W. tested positive for chlamydia because her testimony was hearsay. In support of his argument, Kelley cites Llewellyn v. State, 4 Ark.App. 326, 630 S.W.2d 555 (1982), where the court of appeals held that, pursuant to ...