Rains v. State

• Decision Date: 25 September 1997
• Docket Number: No. CR,CR
• Citation: 953 S.W.2d 48,329 Ark. 607
• Parties: George T. RAINS, Appellant, v. STATE of Arkansas, Appellee. 97-245.
• Court: Arkansas Supreme Court

Page 48

953 S.W.2d 48

329 Ark. 607

George T. RAINS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 97-245.

Supreme Court of Arkansas.

Sept. 25, 1997.

Buford Gardner, Harrison, for Appellant.

Winston Bryant, Attorney General, Kent G. Holt, Assistant Attorney General, Little Rock, for Appellee.

CORBIN, Justice.

Appellant George T. Rains appeals the judgment of conviction of the Boone County Circuit Court for six counts of rape, one count of attempted rape, and two counts of first-degree sexual abuse. The trial court sentenced Appellant as a habitual offender to a term of life imprisonment on each count of rape, sixty years' imprisonment on the count of attempted rape, and two terms of thirty years' imprisonment on each count of first-degree sexual abuse. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(2). Appellant raises two points for reversal. We find no error and affirm.

Appellant's convictions stem from his having engaged in sexual acts with three minor victims, namely his son J.P., his stepdaughter S.D., and his niece D.C. The sexual acts occurred over a period of time from June 1993 through February 1996, during which time J.P. was five to seven years old, S.D. was six to eight years old, D.C. was eight to ten years old, and Appellant was thirty-six to thirty-nine years old. The information charged that on or about February 3, 1996, Appellant committed two counts of rape, one count each against J.P. and S.D. Also on or about February 3, 1996, the information charged Appellant with the attempted rape of S.D. The four remaining counts of rape, charged in the information as having occurred sometime between June 1993 and February 1996, involved two counts against J.P. and two counts against S.D. Specifically, as to the two counts against J.P., the information charged that Appellant had made J.P. place his (Appellant's) penis in the child's mouth and that Appellant had also placed his penis in J.P.'s anus. As to the two remaining counts of rape against S.D., the information reflected that Appellant had made S.D. place his (Appellant's) penis in her mouth and that Appellant had also placed his tongue inside S.D.'s vagina. Lastly, the information charged Appellant with two counts of first-degree sexual abuse for having engaged in sexual contact with S.D. and D.C. on a date sometime between June 1993 and February 1996. I. Sufficiency of the Evidence

For his first point for reversal, Appellant argues that there was insufficient evidence to sustain his convictions. He contends that the children's testimony was vague and unclear and that his convictions were based upon the jury's passion, rather than the evidence. The State argues that this point is procedurally barred because the grounds raised in Appellant's first motion for directed verdict differed from those raised in his motion at the close of all the evidence. It is the State's contention that because Appellant did not argue the lack of evidence of sexual penetration or deviate sexual activity in his first motion for directed verdict, that argument is not preserved for appeal. We disagree.

It is well settled that arguments not raised at trial will not be addressed for the first time on appeal, and that parties cannot change the grounds for an objection on appeal and are bound by the scope and nature of their objections and arguments presented at trial. Evans v. State, 326 Ark. 279, 931 S.W.2d 136 (1996). Where the defendant's first motion for directed verdict was specific as to the missing proof, but his motion made at the close of the evidence was merely a general renewal of the first motion, his challenge to the sufficiency of the evidence was preserved for appellate review. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). In Durham, the State argued that because the motion made at the close of the evidence was not specific, the defendant waived his challenges to the sufficiency of the evidence on appeal. This court ultimately reached the merits of Durham's argument because the grounds he raised for reversal were the same as those originally raised to the trial court. Thus, it is the opportunity of the trial court to first hear and address the parties' arguments that is of importance in determining whether the argument has been preserved for appeal. That both directed-verdict motions are not identical will not bar an appellant's argument on appeal.

Here, Appellant made specific motions for directed verdict at the end of the State's case and at the close of all the evidence. The fact that he stated additional grounds in his final motion does not bar our consideration of them. Therefore, because Appellant has not raised any issues on appeal that were not first presented to the trial court, we will reach the merits of this argument.

On appeal, a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). We view the evidence in a light most favorable to the State and consider only that evidence which supports the verdict. Id. Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. This court does not, however, weigh the evidence presented at trial, as this is a matter for the factfinder. Dabney v. State, 326 Ark. 382, 930 S.W.2d 360 (1996). Nor will this court weigh the credibility of witnesses. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995).

A person commits rape if he engages in sexual intercourse or deviate sexual activity with a person who is less than fourteen years of age. Ark.Code Ann. § 5-14-103 (Repl.1993). "Deviate sexual activity" means any act of sexual gratification involving the penetration, however slight, of the anus or mouth of one person by the penis of another person or the penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person. Ark.Code Ann. § 5-14-101(1) (Supp.1995). Rape is not defined as a continuing offense; rather, it is a single crime that may be committed by either engaging in sexual intercourse or deviate sexual activity with, as in this case, another person who is less than fourteen years of age. See Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986). Where the prosecutrix testifies as to multiple acts of rape of a different nature, separated in point of time, there is no continuing offense, as a "separate impulse was necessary for the commission of each offense." Id. at 195, 710 S.W.2d at 203.

A person commits first-degree sexual abuse if, being eighteen years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen years old. Ark.Code Ann. § 5-14-108 (Repl.1993). "Sexual contact" means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of another person or the breast of a female. Ark.Code Ann. § 5-14-101(8) (Supp.1995).

This court has repeatedly held that the uncorroborated testimony of a rape victim, whether adult or child, is sufficient to support a conviction. Evans, 326 Ark. 279, 931 S.W.2d 136; Caldwell, 319 Ark. 243, 891 S.W.2d 42; Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987). Likewise, the victim's testimony need not be corroborated to demonstrate sufficient evidence of first-degree sexual abuse. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991). To the extent there may be inconsistencies in the victims' testimony, this is a matter of credibility for the jury to resolve. Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996). In cases of sexual abuse, it may be assumed that the defendant had sexual contact with the victim for the purpose of sexual gratification, and it is not necessary for the State to directly prove that he was so motivated. Holbert v. State, 308 Ark. 672, 826 S.W.2d 284 (1992). See also McGalliard, 306 Ark. 181, 813 S.W.2d 768; Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989).

It is similarly not necessary for the State to prove specifically when and where each act of rape or sexual contact occurred, as time is not an essential element of the crimes. See Douthitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996); Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988). It is rare that youthful victims of sexual abuse can provide exactness as to the time an offense occurred, and any discrepancies in the testimony concerning the date of the offense are for the jury to resolve. Yates v. State, 301 Ark. 424, 785 S.W.2d 199 (1990). In order to prove a charge of attempted rape, it must be shown that the defendant's actions constituted a substantial step in a course of conduct intended to culminate in the commission of rape. Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994).

J.P. testified at trial that on at least four occasions, Appellant put his "private" or "wiener" in J.P.'s anus or in his mouth, making J.P. suck on it. He stated that Appellant had also put his (J.P.'s) wiener in his (Appellant's) mouth and sucked on it. He stated that these acts occurred three times at the trailer near Dogpatch, where he lived with Appellant, his mother, and S.D. He stated that the acts occurred once at his grandmother's house in Bergman. He stated that Appellant had also put his wiener in S.D.'s private. He stated that sometimes "gooey," "yellow" stuff would come out of Appellant's wiener. He stated that the last time such acts had occurred was at his grandmother's house, while his grandmother was gone and he was alone with Appellant and S.D. He stated that on that occasion, Appellant told him to suck on Appellant's wiener and that he did as he was told. He stated that Appellant put his wiener into his (J.P.'s) anus and that it hurt, but that he did not cry. He stated that he remembered Appellant "coming" on S.D. while she was on the bed with Appellant. H...