Williams v. State

• Decision Date: 09 November 2011
• Docket Number: No. CA CR 11–291.,CA CR 11–291.
• Citation: 386 S.W.3d 609,2011 Ark. App. 675
• Parties: Akin O. WILLIAMS, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2011 Ark. App. 675

386 S.W.3d 609

Akin O. WILLIAMS, Appellant

v.STATE of Arkansas, Appellee.

No. CA CR 11–291.

Court of Appeals of Arkansas.

Nov. 9, 2011.

Bobby R. Digby II, Little Rock, for appellant.

Dustin McDaniel, Atty. Gen., Karen Virginia Wallace, Office of Atty. Gen., Little Rock, for appellee.

ROBERT J. GLADWIN, Judge.

[Ark. App. 1]Appellant Akin O. Williams was convicted of rape by a Hempstead County jury on November 2, 2010, and sentenced to sixty years' imprisonment. In his four points on appeal, appellant argues that the trial court erred by (1) refusing to grant his motion for mistrial; (2) denying his motion for directed verdict; (3) permitting the introduction of evidence related to his initial refusal to give a DNA sample; and (4) refusing to permit the introduction of the victim's criminal history. We affirm appellant's conviction.

Appellant was charged and tried before a jury on October 25, 2010, for rape. During the prosecutor's voir dire, the following colloquy occurred:

PROSECUTOR: Now, we've got a situation where I don't believe there's going to be any question that the parties engaged in sex that day.

DEFENSE COUNSEL: Your Honor, may we approach?

[Ark. App. 2]THE COURT: You may.

DEFENSE COUNSEL: If they're going to put on evidence, this is no time—her statement is incorrect.

THE COURT: Okay. I'll admonish them. I'll take care of it.

THE COURT: Ladies and gentlemen of the jury, disregard that last comment made by the State. That is not the case, please disregard that. This is voir dire and not evidence to be presented at this time. Thank you.

The prosecutor continued her voir dire, explaining at length how to judge credibility, both as to the victim and the defendant, and how to apply the beyond-a-reasonable-doubt standard. After she concluded, the following colloquy occurred:

DEFENSE COUNSEL: Your Honor, I'm going to move for a mistrial.

THE COURT: Denied.

DEFENSE COUNSEL: May I state for the record my reasons for the mistrial?

THE COURT: You may.

DEFENSE COUNSEL: The statements that she made to the jury, I don't believe there is any doubt as to whether—That's like, how can this jury possibly be impartial, I would think that's an element.

THE COURT: I've admonished the jury that these are not—I've just admonished the jury that that's not evidence and they should disregard that comment. You can certainly tell them that that is an issue that you can test strenuously. This is voir dire. This isn't evidence presented.

DEFENSE COUNSEL: That's exactly the basis of that new basically presented evidence here. They basically testified for my client. This panel ...

[Ark. App. 3]THE COURT: I have admonished the jury about that and told them to disregard it. Your motion is denied.

The motion was renewed and denied at the conclusion of jury selection.

The victim, A.A., testified that on November 27, 2009, she was in Hope, Arkansas, partying with acquaintances, one of whom was appellant. After drinking at a club, she, appellant, and Korey Wesley drove to another location to obtain some cocaine. Wesley, with his passengers, then began to drive appellant home. However, Wesley was stopped by police and arrested. Appellant and A.A. were then picked up by appellant's sister and taken to appellant's house, where A.A. made phone calls, trying to get a ride home. When A.A. was unable to obtain a ride, appellant allowed her to stay at his house.

A.A. testified that she was lying on the floor under a blanket, watching television, when appellant tried to persuade her to “sleep with” him, saying that he did not have a girlfriend and she did not have a boyfriend. She refused and asked to use the phone again. Instead of getting the phone for A.A., appellant came up behind her, choked her, and told her she was going to have sex with him because she had used his drugs. She begged him not to do this and offered him money; he told her to “just shut the ‘F’ up” and take off her clothes. A.A. said that appellant made her disrobe, then he had sex with her while holding her down against her will. She estimated that the rape occurred for a period of two hours while she cried and prayed. Afterward, he tried to make her bathe to remove any evidence, but she convinced him that it was too cold to bathe and that she would not go to the police.

She testified that she was able to contact a friend to pick her up and take her to another friend's house, where she called a police officer that she knew. The officer sent a deputy to [Ark. App. 4]take her to the hospital for a rape examination. At the hospital, she was given a prescription for medication to calm her down. The record notes at several points that she was sobbing as she gave her testimony about the rape. She testified that the rape had negatively affected her life. She identified appellant as her rapist.

Nurse Christie Waller testified that she was working in the Medical Park emergency room when A.A. came in reporting the rape at 9:15 a.m. While Waller saw no bruising, she observed that A.A. seemed to be in shock. Waller collected A.A.'s clothing and performed parts of the rape kit. Waller and the doctor collected oral, vaginal, and rectal swabs, pubic hair, and blood. She turned that evidence over to Heath Ross, an investigator for the Hempstead County Sheriff's Department.

Ross testified that when he arrived at the hospital to see A.A., she was “highly upset, very upset, crying.” He collected her clothing and the rape kit from Nurse Waller and sent them to the Arkansas State Crime Laboratory (ASCL) for analysis. He testified that A.A. identified appellant in a photo lineup as the man who had raped her. Ross also submitted to the crime laboratory DNA from an oral swab collected from appellant. He testified that appellant was ordered to submit to a DNA test, but “flat out refused.” However, appellant provided the DNA sample after he was ordered to do so the second time.

Ryan Kemp, a forensic serologist at the ASCL, testified that he performed tests on the rape kit that showed semen on the vaginal swabs, rectal swabs, and underwear. Joseph Hof, a DNA forensic analyst for the ASCL, testified that the vaginal swabs indicated DNA from two persons. From a blood sample given by A.A., she could not be excluded as a contributor [Ark. App. 5]to part of that DNA. The other major contributor from the vaginal-swab-DNA sample matched appellant's DNA profile. The strength of that match was “quite high” so that Hof “was able to conclude that the DNA identified as a major component of [the vaginal swab] originated from Akin Williams within all scientific certainty.”

When the State rested its case, appellant renewed his motion for mistrial stating,

Yes, sir. First of all I'd like to renew my earlier motion for mistrial, would be additional evidence created some doubt about the DNA which further enhances the error made by the Prosecution and risings [sic], there was no question about this critical element of the crime. So I would renew that motion at this time, Your Honor.

The motion was denied. Finally, appellant moved for a directed verdict, claiming that the State had not met its burden of proof as to the elements of intercourse or compulsion. The trial court denied the motion, finding that the State had met its burden to move forward based upon the testimony presented. The defense rested with no further motions.¹ The jury found appellant guilty of rape and sentenced him to sixty years' imprisonment. Appellant filed a timely notice of appeal, and this appeal followed.

I. Directed Verdict

Although appellant presents his challenge to the circuit court's denial of his motion for directed verdict as his second point on appeal, we must address such a challenge first for purposes of double jeopardy. See Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. [Ark. App. 6]Sparacio v. State, 2009 Ark. App. 350, 2009 WL 1154707. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. The credibility of witnesses is an issue for the jury and not the court. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.

Appellant contends that the trial court erred in denying his motion for directed verdict because the State failed to present sufficient evidence of sexual intercourse or forcible compulsion. Arkansas Code Annotated section 5–14–103(a) (Supp.2009) provides that “[a] person commits rape if he or she engages in sexual intercourse ... with another person ... [b]y forcible compulsion.” “Forcible compulsion” is “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark.Code Ann. § 5–14–101(2) (Supp.2009). “Physical force” is “any bodily impact, restraint or confinement, or the threat thereof.” Freeman v. State, 331 Ark. 130, 132, 959 S.W.2d 400, 401 (1998). Force is present if “the act is against the will of the party upon whom the act was committed.” Id. at 132–33, 959 S.W.2d at 401.

Appellant argues that, even though a victim's testimony alone can be enough for a rape conviction, see Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992), A.A. was not a credible witness, and her testimony should be disregarded. He points to A.A.'s prior felony conviction [Ark. App. 7]for crack cocaine and her consumption of multiple beers and cocaine on the night of the incident. He asserts that she willingly went to his house and admitted...