Lopez-Deleon v. State
| Decision Date | 30 April 2014 |
| Docket Number | No. CR–13–622.,CR–13–622. |
| Citation | 434 S.W.3d 914,2014 Ark. App. 274 |
| Parties | Mauricio Antonio LOPEZ–DELEON, Appellant v. STATE of Arkansas, Appellee. |
| Court | Arkansas Court of Appeals |
OPINION TEXT STARTS HERE
David O. Bowden, Little Rock, for appellant.
Dustin McDaniel, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.
Appellant appeals from his convictions for sexual assault in the second degree and residential burglary. On appeal, appellant argues that (1) there was insufficient evidence to convict him of either residential burglary or sexual assault in the second degree; and (2) pursuant to Wicks v. State,1 errors were committed at trial that were of such a character as to affect his substantial rights to a fair process and to affect the structure of the trial such that the court should have raised the issue sua sponte, despite the lack of a contemporaneous objection at trial. We affirm.
On July 22, 2012, the appellant entered the home of a female neighbor. While there, the appellant fondled her while she was sleeping. The victim was awakened by the appellant's touching and told him to leave. The victim's minor son had been awake and lying next to her throughout the incident, although he pretended to be asleep. After she was sure that appellant had left the premises, she went to her mother's home across the street and called the police.
A criminal information was filed on August 29, 2012, charging the appellant with residential burglary and sexual assault in the second degree. The trial began on March 29, 2013.
The victim testified that she was married, but had a boyfriend as she and her husband were separated; 2 had lived in the same place since June 2009; and lived across the street from the appellant, who was her mother's neighbor. She stated that the appellant had been to her apartment “a couple of times” with mutual friends, but their relationship was “in passing” and not a “real friendship conversation type thing” as he “creeped [her] out.”
The victim testified that she and her son were sleeping on a mattress in the living room on the morning of July 22, 2012. She advised that her daughter was spending the night across the street with her mother and that she left the back door unlocked so they could easily get into the apartment in the morning. She asserted that she woke up to the appellant touching her breast “over my clothes” and her vagina “under both the underwear and pajamas.” She said she yelled at him to “get the hell out my house”; that he left eventually; and that she then took her son to her mother's home and called 911 after she was sure he had left. When the police arrived, they took her report and she showed them where he had gone. She admitted that she did not know her son had seen anything until the next day. Finally, she stated that there was not a “situation of hanging about and drinking and come and go as you please” at her home.
After being questioned and found competent by the court, the victim's son testified that he was sleeping with his mom on the night of the incident when the appellant came into the apartment and touched his mom while she was sleeping. He stated that he was about to go get some water when the appellant entered the apartment, so he pretended he was asleep until the appellant left. He testified that his mother woke up when the appellant started touching her and told the appellant to get out though he did not remember her exact words. He initially stated that he had not seen the appellant before the night of the incident though he eventually admitted that he had.
Officer Billy Collins testified that he was dispatched on the night of the incident and found the victim “very shaky, crying and visibly upset.” She had advised him that the appellant had run into an apartment. Officer Collins stated that he and another officer attempted to make contact with the appellant, but were not able to do so due to a language barrier between themselves and the man, not the appellant, who answered the door; they could not get consent to enter. He stated that they never made physical or verbal contact with the appellant, although they did see a scooter matching the victim's description in the apartment.3 He testified that the victim “seemed very [believable] to me but you just never know.”
Officer Mario Garcia testified that he spoke Spanish fluently; that about “thirty or forty percent” of his job was translating for fellow officers during interviews and out in the field; and that his translating in this case “was certainly not the first time.” He testified that he accompanied Officer Torkelson to make contact at the appellant's apartment later on that day and that he assisted during the interview, both at the residence and at the police department, as a translator. He testified to his belief, after reviewing the audio of the interview, that his translation was accurate both as to questions and answers.
Officer Garcia then testified that the appellant told the officers that he had been with the victim prior to going to a bar where he became intoxicated. The appellant told Officer Garcia that he had left the bar when it closed and was heading back home, but had stopped at the victim's apartment upon noticing that the door was open. He admitted to the officers that he had let himself into the victim's home and told her “I need you.” When questioned further, the appellant had explained that “I need you” meant he wanted to have sex with her.
He testified that the appellant had admitted that he and the victim were not on good terms, though he could not remember why, and mentioned that he had been in her home before though the number of times changed. He stated the appellant characterized his understanding of the victim as having a “loose reputation.”
The State then rested, and the appellant moved to dismiss the case. The court denied the motion. For its case, the appellant put on one witness who was disclosed to the State by email at 9:20 pm on March 28, 2013. Maria Nieves–Parara, a friend of the appellant, testified that the appellant and the victim were friends and would get together more than once a week, mostly on weekends.4 She testified that her husband had visited the victim the day before the trial to ask her to “look into her conscience and not say anything that wasn't true”; she denied that she or her husband had asked the victim to drop the charges. She stated that she had heard that the appellant and the victim were mad at each other though she didn't know if it was true. She asserted that the victim always leaves her door open, but averred that the appellant would have been wrong if he had entered the victim's house without her permission in the middle of the night. Finally she admitted that she could not say for certain whether anything happened or not between the victim and the appellant.
The appellant renewed his motion to dismiss; it was denied. The court then found the appellant guilty of residential burglary and sexual assault in the second degree, for which he was sentenced to ten years' and twenty years' imprisonment, respectively, in the Arkansas Department of Correction. This timely appeal followed.
Appellant's first argument is that there was insufficient evidence to support his conviction of either residential burglary or sexual assault. Before considering the merits of this point on appeal, this court must first determine whether the issue was properly preserved for appellate review. 5Rule 33.1 of the Arkansas Rules of Criminal Procedure governs motions to dismiss in bench trials and provides in relevant part as follows:
(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required ... will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal.6
Accordingly, in order to preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion to dismiss, both at the close of the State's evidence and at the end of all the evidence, which advises the trial court of the exact element of the crime that the State has failed to prove.7 The reason underlying our requirement that specific grounds be stated and that the absent proof be pinpointed is that it gives the trial court the option of either granting the motion, or, if justice requires, allowing the State to reopen its case and supply the missing proof.8 We will not consider arguments that are raised for the first time on appeal, and a party is bound on appeal by the nature and scope of the objections and arguments presented at trial.9
Appellant's counsel moved to dismiss the matter before the trial court and followed that request with a litany of facts, the purpose of which appeared to be to attack the victim's credibility by insinuating that the relationship between the victim and the appellant was more than the victim admitted. She stated that the victim was “of questionable morals” and noted that there was no sign of forced entry and no DNA evidence. Following this recitation, counsel asked the court to dismiss both...
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...and a party is bound on appeal by the nature and scope of the objections and arguments presented at trial. Lopez-Deleon v. State , 2014 Ark. App. 274, at 6–7, 434 S.W.3d 914, 918.Affirmed. Abramson and Gladwin, JJ., agree.1 At the close of the State's case and at the close of all the eviden......
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...and a party is bound on appeal by the nature and scope of the objections and arguments presented at trial. Lopez-Deleon v. State , 2014 Ark. App. 274, at 6–7, 434 S.W.3d 914, 918. Philpott's second point on appeal is a challenge to the court's admission of testimony related to Philpott's hi......