Parnell v. State, CR
| Decision Date | 08 January 1996 |
| Docket Number | No. CR,CR |
| Parties | Eldridge Ray PARNELL, Appellant, v. STATE of Arkansas, Appellee. 95-573. |
| Court | Arkansas Supreme Court |
Todd Williams, D.P. Marshall, Jr., Jonesboro, for appellant.
J. Brent Standridge, Asst. Attorney General, Little Rock, for appellee.
The appellant, Eldridge Ray Parnell, was convicted of rape. He appeals on the basis that the State's case was premised on his causing the crime of rape between his two adopted children and that what occurred between the two children did not constitute rape under Arkansas law. Accordingly, he maintains that he could not be guilty of the crime. We disagree, and we affirm the conviction.
The facts in this case were developed at Parnell's trial. Audrey Parnell testified that she married Parnell in 1989 and he adopted her two children, B.P. and E.P., in 1991. Parnell worked as a radio dispatcher on the night shift at the Craighead County jail. Toward the end of July in 1993, Parnell suffered a work-related injury while attempting to lock up a prisoner and was off work for ninety days. During this time, he was home with the children.
On February 4, 1994, Audrey Parnell had a conversation with her son, B.P. She testified that her son told her that Parnell had forced him to have sex with his sister, E.P. At the time of these events, B.P. was age 9 or 10 and E.P. was age 8. When Audrey Parnell confronted Parnell by telephone with what B.P. had told her, he responded that he caught the kids "doing things with each other" in B.P.'s bedroom, and "he told them to go for it." Following this conversation, she called the child abuse agency, SCAN, and removed the children from Parnell's house. The next day, on February 5, 1994, she took the children to St. Bernard's Hospital in Jonesboro for a physical examination. Later, she initiated divorce proceedings. The divorce was final by the time of Parnell's trial.
Parnell was initially charged with sexual abuse in the first degree and sexual solicitation of a child less than age 14. The information was amended three months later to include a rape count.
B.P. testified at trial that Parnell "made me stick my front private part in my sister's mouth." He further testified that Parnell made him "put his front private in his sister's back private." He testified that this would occur in the afternoon when his mother was at work or at the mall or the store. He agreed that it happened more than 10 times. B.P. also testified that Parnell told them that if they told their mother, she would be put in jail and the children would go to a foster home. B.P. admitted that he eventually told his mother.
E.P. testified that Parnell made her perform oral sex on her brother and made her brother perform sex with her in her "back private." She added, "He said if we didn't do it, he would put us in jail." E.P. testified that appellant made B.P. do this to her because she was "talking." E.P. agreed that it happened more than five or six times. E.P. also testified that Parnell once summoned her into the bathroom and made her rub his penis. A nurse, Tracey Pilgrim, confirmed in her testimony that E.P. told her at the hospital essentially the same thing about sex with her brother.
Parnell moved for a directed verdict on all charges at the close of the State's case and argued that the State had failed to prove the elements of rape, sexual abuse in the first degree, or sexual solicitation of a child. The trial court denied the motion for directed verdict on all counts. Parnell then took the stand in his own defense and denied that he ever caused B.P. and E.P. to have sexual relations. The jury convicted Parnell of rape and sexual abuse in the first degree, and he was sentenced to ten years imprisonment for rape and three years probation for sexual abuse.
Parnell first contends in this appeal that he had no notice prior to trial that the State would proceed on a complicity theory in establishing its case for rape. The facts in this case belie that contention. The criminal information expressly charged Parnell with rape by forcing his adopted children to engage in sexual relations. More importantly, though, Parnell's counsel never argued his lack of notice of the State's theory of the case to the trial court either by way of a motion for directed verdict or an objection to instructions. We do not entertain arguments raised for the first time on appeal. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995); Arkansas Office of Child Support Enforcement v. House, 320 Ark. 423, 897 S.W.2d 565 (1995). This point, therefore, is not preserved for our review.
The crux of Parnell's appeal centers on his argument that he cannot be guilty of causing rape if the two children themselves were not guilty of that crime. We begin by quoting pertinent parts of the statutory definition of rape:
(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(1) By forcible compulsion; or
(2) Who is incapable of consent because he is physically helpless; or
(3) Who is less than fourteen (14) years of age. It is an affirmative defense to prosecution under this subdivision that the actor was not more than two (2) years older than the victim....
Ark.Code Ann. § 5-14-103 (Repl.1993). The statute is precise in stating that one commits the crime of rape if he engages in sexual intercourse with a person who is less than 14 years of age.
In the instant case, B.P. was 9 or 10 at the time of his sexual relations with his sister, and E.P. was 8. Under our juvenile statutes, a 10-year-old may be subject to commitment as a juvenile delinquent for the crime of rape. Ark.Code Ann. § 9-27-303(11) (Repl.1993). But regardless of that fact, B.P. had clear defenses to any such charge because he acted under the duress of his adoptive father and because he was no more than 2 years older than his sister at the time of the sexual activity.
The fact that B.P. would not be guilty of a crime, however, does not inure to Parnell's benefit. An Arkansas statute specifically embraces the circumstances of the instant case and expressly makes complicitous conduct a crime:
A person is made criminally liable for the conduct of another person when:
....
(3) Acting with the culpable mental state sufficient for the commission of the offense, he causes another person to engage in conduct that would constitute an offense but for a defense available to the other person.
Ark.Code Ann. § 5-2-402 (Repl.1993); see also Ark.Code Ann. § 5-2-405 (Repl.1993). A plain reading of § 5-2-402(3) renders Parnell criminally culpable irrespective of B.P.'s age defense or the fact that he acted only under duress. The trial court instructed the jury to this effect: "[Parnell] is criminally liable for...
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