Rye v. State

• Decision Date: 09 December 2009
• Docket Number: No. CA CR 09–96.,CA CR 09–96.
• Citation: 373 S.W.3d 354,2009 Ark. App. 839
• Parties: Lorri Jean RYE, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2009 Ark. App. 839

373 S.W.3d 354

Lorri Jean RYE, Appellant

v.STATE of Arkansas, Appellee.

No. CA CR 09–96.

Court of Appeals of Arkansas.

Dec. 9, 2009.

Eisele Law Firm, P.A., Benton, by: Justin Eisele, for appellant.

Dustin McDaniel, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

KAREN R. BAKER, Judge.

[Ark. App. 1]A Crawford County jury convicted appellant, Lorri Jean Rye, of two counts of rape of her three-year-old son, in violation of Arkansas Code Annotated section 5–14–103 (Repl.2006). She received two ten-year sentences to be served consecutively. Appellant presents three arguments on appeal. First, she alleges that the trial court erred in denying her motion for a directed verdict. Second, she alleges that the trial court erred in admitting child-hearsay evidence because the presumption of unreliability and inadmissibility was not met under Arkansas Rule of Evidence 804(b)(7) (2009) and because the court failed to find that the ability to cross-examine a witness would have been of marginal utility. Third, she alleges that the trial court erred by accepting a legal stipulation to incompetency of a witness. Finding no error, we affirm.

[Ark. App. 2]Appellant was arrested and charged with two counts of rape, a Class Y felony. It was alleged that on or between October 10 and October 15, 2007, appellant engaged in sexual intercourse or deviate sexual activity with the victim, her son, who was less than fourteen years of age. Appellant was interviewed by detectives and during the interview, appellant gave officersa statement about the alleged incident. In those statements, she indicated that she placed her mouth on the child's penis.

Prior to the trial, a hearing was held to establish the admissibility of child hearsay through the testimony of the child's aunt, Helen Hawthorne. Ms. Hawthorne was the only witness at this hearing. She testified that appellant was married to her brother and that she watched the child-victim “a substantial portion of the time.” She stated that she kept the child during the day while appellant worked and, when necessary, she kept the child at night, on weekends, and even overnight. She testified that on October 17, while she was keeping the child, he made some concerning statements while sitting in her lap. Specifically, the child asked Ms. Hawthorne if she wanted to “play a game.” She responded that she would. The child then asked if she would want to “play with [his] weenie balls,” to which she responded, “No.” The child next asked if she wanted him to “play with [her] wee wee.” Again, Ms. Hawthorne responded, “No.” She explained to the child that she did not play such games. The child continued with his questions, asking such things as “Do you want me to put my weenie balls in your wee-wee?” and “Do you want to suck my weenie balls?” Ms. Hawthorne testified that she responded “No” each time the child asked a question, [Ark. App. 3]emphasizing to him that she did not “play those games.” The child's next statement was, “Well, Mama does.” Ms. Hawthorne testified that the dialogue ended and the child climbed down from her lap and went to watch television. Ms. Hawthorne testified that she was “just devastated” and said that it made her “sick to [her] stomach.” She did not report the incident to authorities until October 19 because October 18 was the child's birthday. She explained to authorities that the child made the statements only on October 17 and did not repeat the statements to her again. She also told them that she did not at any time after the incident question the child about the statements.

Ms. Hawthorne testified that she and appellant were “very close” despite the potential divorce between appellant and Ms. Hawthorne's brother.¹ The two had discussed the fact that Ms. Hawthorne would continue to keep the child even after the possible dissolution of appellant's marriage. The parties stipulated that based on the victim's age, he was unavailable due to incompetency. The court accepted the stipulation by the parties and, at the conclusion of the hearing, the court found that the child-victim was unavailable and that the hearsay testimony was within the child-hearsay exception in Arkansas Rule of Evidence 804(b)(7).

Ms. Hawthorne also testified at trial. She reiterated the statements made by the child to her on October 17. She testified that the child made the statements while sitting in her lap. He and Ms. Hawthorne were tickling each other, when the child “kind of hit [her] knee with his private area.” At that moment, the child said, “Oh, that hurt my weenie balls.” She [Ark. App. 4]explained to the child that “[they] don't call them that.” The child's response was, “Well, my Mama does.” She testified that the victim continued to ask her such questions as, did she want to “play with [his] weenie balls,” “put [his] weenie balls in [her] mouth,” or “put his weenie balls in [her] wee wee.” She told him that she did not play such games, and the child respondedagain, “Well, my Mama does.” Ms. Hawthorne stated that “he was just rubbing [himself] the whole time he said it and [she] just tried to be just as, you know, normal as possible because [she] didn't want to just, you know, get irate with him or anything. So, you know, [she] didn't know what to—so, [she] just got real sick to [her] stomach and everything. So, [she] said, no, let's just watch TV, okay?” She was extremely upset. Because the child was excited about his birthday the next day, Ms. Hawthorne did not report the incident until October 19. On October 19, she spoke with Officer Wiley about the child's statements.

Detective Perry of the Van Buren Police Department testified that he went to appellant's home to speak with her about the allegations. When Detective Perry arrived, appellant and the child were home. He told appellant that he needed to speak with her about the allegations, and appellant “said nothing.” They went to the police station, where appellant was questioned. During a video-taped interview by Detective Perry and Officer Lindley, which was played for the jury, appellant initially denied that she touched the child “sexually.” Further into the interview, she admitted that she had placed her son's penis in her mouth on two occasions when she thought he was asleep. Both officers testified as to appellant's confession. She also stated that when she was a child, she was sexually abused by [Ark. App. 5]family members.

Dr. Paul Deyoub, a forensic psychologist, testified that he conducted a forensic evaluation of appellant. In the evaluation, he administered testing, including intelligence testing, personality testing, and a “Competency to Stand Trial Assessment.” He concluded that appellant did not have any mental illness and that she was of high-average intelligence, performing at the seventy-seventh percentile. Dr. Deyoub testified that during the evaluation, appellant denied that she had committed the offense and that she did not indicate to Dr. Deyoub that she had been sexually abused by a family member.

After the State rested its case, appellant's counsel made a motion for a directed verdict. In the motion, counsel stated,

Your Honor, since this is the end of the State's case and they're resting on their case, Your Honor, I move for a directed verdict ... I'm challenging the sufficiency of the evidence that the State has brought forward at this point in that, if the jury were to, that enough evidence has not been presented in such a way or an adequate amount to meet the burden to proceed forward at this point; that the jury's, the information they have received from the State, would, that they would have to basically, guess or you know, as to the evidence presented, Your Honor. And that there's just—there's not enough evidence to go forward.

The trial court denied the motion. At the close of the evidence, appellant's counsel renewed the motion for a directed verdict, which was again denied. The jury found appellant guilty of two counts of rape and sentenced her to two, ten-year terms of imprisonment to be served consecutively. This appeal followed.

For her first point on appeal, appellant alleges that the trial court erred in denying her motion for a directed verdict. In appellant's brief, however, she concedes that the directed-verdict[Ark. App. 6]motion made on her behalf at trial did not comply with Arkansas Rule of Criminal Procedure 33.1(c) (2009) in that the motion did not state the specific grounds upon which the proof was insufficient. Rule 33.1 states in relevant part:

(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.

....

(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above 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.

(Emphasis added.)

While appellant did move for a directed verdict, her motion failed to identify in what respect the evidence was insufficient. SeeArk. R.Crim. P. 33.1(a). A general motion that merely asserts that the State has failed to prove its case, such as the motion made by appellant in this case, is inadequate to preserve the issue for appeal. Carey v. State, 365 Ark. 379, 230 S.W.3d 553 (2006). The reason underlying the requirement that specific grounds be stated and that the absent proof be pinpointed is that it allows the...