Williams v. State

• Decision Date: 06 October 2005
• Docket Number: No. CR 04-964.,CR 04-964.
• Parties: Thomas Vernon WILLIAMS, Appellant; v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

214 S.W.3d 829

Thomas Vernon WILLIAMS, Appellant; v. STATE of Arkansas, Appellee.

No. CR 04-964.

Supreme Court of Arkansas.

October 6, 2005.

Phillis J. LeMarc, for appellant.

Mike Beebe, Att'y Gen., by: Brent P. Gasper, Ass't Att'y Gen., Little Rock, for appellee.

DONALD L. CORBIN, Justice.

Appellant Thomas Vernon Williams appeals the order of the Grant County Circuit Court convicting him of raping a twelve-year-old boy and sentencing him to life imprisonment in the Arkansas Department of Correction. Appellant raises five points for reversal: (1) the trial court erred in denying his motion for directed verdict; (2) the trial court erred in denying his motion to suppress his custodial statements; (3) the trial court abused its discretion in permitting the prosecutor to ask potential jurors about pedophiles during voir dire; (4) the trial court erred in refusing to give an instruction on the lesser offense of second-degree sexual assault; and (5) the trial court abused its discretion in allowing evidence of other crimes during sentencing. We have jurisdiction of this appeal pursuant to Ark. Sup.Ct. R. 1-2(a)(2). We find no error and affirm.

I. Denial of Motion for Directed Verdict

Appellant argues that the trial court erred in denying his motion for a directed verdict. Although this is actually Appellant's third point on appeal, we address it first, as an appellant's right to be free from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. See Flowers v. State, 362 Ark. 193, 208 S.W.3d113 (2005); Carter v. State, 360 Ark. 266, 200 S.W.3d 906 (2005). We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Hampton v. State, 357 Ark. 473, 183 S.W.3d 148 (2004); Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or the other and pass beyond mere suspicion or conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. Additionally, when reviewing a challenge to the sufficiency of the evidence, we consider all the evidence, including that which may have been inadmissible, in the light most favorable to the State. Hampton, 357 Ark. 473, 183 S.W.3d 148; George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004).

Appellant was convicted of rape by engaging in deviate sexual activity with another person who was less than fourteen years old, pursuant to Ark.Code Ann. § 5-14-103(a)(1)(C)(i) (Supp.2005). "Deviate sexual activity" is defined, in pertinent part, as "[t]he penetration, however slight, of the anus or mouth of one person by the penis of another person[.]" See Ark.Code Ann. § 5-14-101(1)(A) (Supp.2005). It is well settled in this state that the uncorroborated testimony of a rape victim is sufficient to support a conviction if the testimony satisfies the statutory elements of rape. See Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005); Walters v. State, 358 Ark. 439, 193 S.W.3d 257 (2004); Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002).

M.D., the victim in this case, testified that during June or July of 2001, when he was twelve years old, Appellant babysat him and his younger brother. At one point, M.D. and Appellant walked to a neighbor's house, while M.D.'s brother stayed home and played video games. The neighbor was not at home, so M.D. and Appellant decided to walk down to the creek behind M.D.'s mobile home. When they got there, M.D. started messing with the crawdads in the stream. Appellant then asked M.D. to perform oral sex on him. Specifically, he pulled down his pants and told M.D. "to go down on him." M.D. told him no, but Appellant kept asking him to do it. Finally, Appellant told M.D. that if he did not perform oral sex on him, he would ruin the boy's future in his home town. Appellant told him that he would tell his brother, Matt Williams, who was M.D.'s friend and also worked with M.D.'s stepmother, that M.D. had tried to get Appellant to perform oral sex on him. According to M.D., Appellant's threat tore him up inside, because he did not want people in his town thinking that he was homosexual. M.D. eventually complied and performed oral sex on Appellant. Appellant then performed oral sex on M.D.

The next day, M.D. told his father and stepmother what had happened. His father wanted to call the police and report Appellant, but M.D. begged him not to, because he was afraid of what his friends would think of him. His father reluctantly agreed. Later on, M.D.'s father attempted to find Appellant to settle the matter his own way, but to no avail. He finally ran into Appellant about two years later, in March 2003. According to M.D.'s father, when he approached Appellant, Appellant started crying and told him that he was sorry about what had happened.

Investigator Charlie Winborn, of the Sheridan Police Department, testified that he took a videotaped statement from Appellant in December 2003. Part of that statement was played for the jury, wherein Winborn asked Appellant if he knew M.D., and Appellant said he did. When the officer asked how he knew M.D., Appellant answered that when M.D. was thirteen years old, he stayed the night at M.D.'s house and performed oral sex on the boy.

At the close of the State's case-in-chief, defense counsel made a motion for directed verdict on the ground that there was insufficient evidence of rape. Particularly, defense counsel asserted that the only evidence came from the victim and that, given his age and his testimony that he was not absolutely positive that the crime occurred in the summer of 2001, as opposed to the following summer, his testimony was insufficient proof. This is the same argument offered on appeal.

We hold that the foregoing evidence is more than sufficient to support Appellant's rape conviction. As stated above, the uncorroborated testimony of the victim constitutes substantial evidence if it establishes all of the elements necessary to prove the crime. Here, there were only two necessary elements: (1) that Appellant engaged in deviate sexual activity with (2) another person who was less than fourteen years of age at the time. M.D.'s testimony established that when he was twelve years old, he performed oral sex on Appellant after being threatened and Appellant, in turn, performed oral sex on him. As for the date of the crime, M.D. testified that he was "almost positive" that it occurred in the summer of 2001, when he was twelve. Contrary to Appellant's argument, the fact that M.D. was not absolutely certain of the date does not in any way lessen the proof against him, as that is an issue of credibility. It is well settled that this court will not weigh the credibility of the witnesses, as that is a determination for the jury. See, e.g., Clem, 351 Ark. 112, 90 S.W.3d 428; Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). Moreover, we cannot ignore the fact that even if the crime had occurred the following summer, the proof is sufficient, as M.D. still would have been under the age of fourteen. Accordingly, we affirm the trial court's denial of Appellant's motion for directed verdict.

II. Denial of Motion to Suppress Appellant's Custodial Statements

Appellant argues that the trial court erred in denying his motion to suppress his custodial statements to police. There were two statements taken from Appellant, and both were recorded on the same VHS tape. The first statement occurred on December 17, 2003, and was conducted by Officer Winborn and Lieutenant Jimmy Vaughn, also of the Sheridan Police Department. The subject of this first interview was an investigation of allegations made by then six-year-old M.C., who is not a victim in this case. Appellant was not under arrest at the time, and he had been given his Miranda rights prior to being questioned. Throughout the interview, Appellant repeatedly and consistently denied any improper touching of M.C. At one point during the interview, however, Officer Winborn asked Appellant if he knew M.D., the victim in this case, and Appellant spontaneously confessed that he had performed oral sex on M.D. a couple of years earlier, when he was twenty-three and M.D. was thirteen.

The second interview was taken on January 8, 2004. One day earlier, Winborn had taken a statement from M.D., in which the boy stated that Appellant had raped him. Based on this information, Winborn arrested Appellant that same date, January 7. Immediately upon arresting him, Winborn verbally advised Appellant of his Miranda rights. The following day, Winborn interviewed Appellant about the crime. He did not repeat the Miranda warnings that he had given the previous day. During the course of that interview, Appellant made incriminating statements about M.D. and M.C.

Appellant objected to his statements made in the first interview on the ground that they were not made voluntarily, knowingly, and intelligently. He argued that his first statement was coerced by the officers' false promises that they would get him help in the form of psychological counseling.¹ Regarding the second statement, Appellant argued that his confession should have been suppressed because Winborn failed to repeat the Miranda warnings he had given to Appellant the day before, at the time of his arrest.

We note at the outset that a statement made while in custody is presumptively involuntary, and the burden is on the State to prove by a preponderance of the evidence that a custodial statement was given voluntarily and was knowingly and intelligently made. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). In order to determine whether a waiver of Miranda rights is voluntary, we look to see if the...