Barrow v. State

377 S.W.3d 481, 2010 Ark. App. 589, 2010 Ark. App. LEXIS 637
CourtCourt of Appeals of Arkansas
DecidedSeptember 15, 2010
DocketNo. CA CR 09-868
StatusPublished
Cited by10 cases

This text of 377 S.W.3d 481 (Barrow v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrow v. State, 377 S.W.3d 481, 2010 Ark. App. 589, 2010 Ark. App. LEXIS 637 (Ark. Ct. App. 2010).

Opinion

ROBERT J. GLADWIN, Judge.

| jAppellant Kenneth Joe Barrow appeals his conviction by the Faulkner County Circuit Court on charges of sexual assault and sexual indecency against his stepdaughter, K.B., and the rape and terroristic threatening of his daughter, A.B. He challenges the sufficiency of the evidence supporting the convictions and also argues that the circuit court committed reversible error by failing to (1) determine whether appellant knowingly, intelligently, and voluntarily waived his right to a jury trial; (2) dismiss all charges pursuant to a violation of the speedy-trial rule; (3) impose sanctions against the State for failure to comply with discovery requests. We affirm.

Facts

On February 17, 2009, appellant was tried on charges from two separate infor-mations. The first, filed on July 6, 2007, contained two charges, (1) sexual assault in the second degree, | ¡..alleging that he engaged in sexual contact with his stepdaughter, K.B. and (2) sexual indecency, alleging that he coerced K.B. to expose her sex organs or breast. In the second information, filed on November 14, 2007, appellant was charged with the commission of the offenses of rape and terroristic threatening in the first degree against his daughter, A.B. All charges were consolidated for the bench trial.

Prior to the charges being filed, appellant had served a tour of duty in Iraq as a chemical-control officer in the United States Army. He was married to the mother of the minor children named in the informations. K.B. was not the natural child born to the union of the two, but appellant was the only father-figure in her life, and A.B. was the natural child born to appellant and his wife.

Appellant filed various motions in the cases, including two motions for discovery. He also moved for sanctions against the State, alleging that the State failed to provide information relating to medical and therapeutic treatment received by the victims that was revealed at trial but not previously made available to appellant. It is undisputed that a written waiver of jury trial was signed by appellant; however, there is no verbatim record of any proceeding during which the waiver was confirmed as having been knowingly, intelligently, and voluntarily signed.

K.B., A.B., and two other witnesses provided testimony for the State. Appellant made a general motion for directed verdict with respect to all four charges after the State rested, but the motion was denied. Along with several other witnesses, appellant then testified in his |aown defense, denying that he engaged in the alleged criminal violations or that there were any-observed signs of abuse.

At the conclusion of the trial, the motion for directed verdict was renewed on the same grounds and was again denied. Appellant was found guilty on all charges and sentenced by the circuit court as follows: ten years on the charge of sexual assault; five years on the charge of sexual indecency; twenty years on the charge of rape; and five years on the charge of terroristic threatening. The ten- and twenty-year sentences were ordered to run consecutively, and the five-year sentences concurrently. A timely notice of appeal was filed on February 20, 2009.

I. Sufficiency of the Evidence

When a defendant challenges the sufficiency of the evidence, which serves as the basis for his conviction, the evidence is viewed in the light most favorable to the State and only evidence supporting the conviction will be considered. Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006). Moreover, the courts have also held that the test for determining the sufficiency of evidence is whether the conviction is supported by substantial evidence. Id. Substantial evidence must be forceful enough to compel a conclusion one way or another beyond suspicion and conjecture. Id.

Appellant was charged with violations of Arkansas Code Annotated sections 5-14-125 (Repl.2006); 5-14-110 (Repl.2006); 5-14-103 (Repl.2006); and 5-13-301 (Repl. 2006), against his stepdaughter, K.B., and daughter, A.B. Appellant’s sole argument with respect to this issue is that the State’s case regarding the four charges consisted solely of the ^uncorroborated, and sometimes inconsistent, testimony of KB. and A.B. He notes that, not only was there no medical evidence or therapeutic-counseling evidence presented, the State failed to present corroborating evidence of any kind.

Appellant acknowledges that the law is clear that a person can be convicted upon the uncorroborated testimony of a minor if the testimony satisfies the statutory elements of the offense. Rohrbach v. State, 374 Ark. 271, 287 S.W.3d 590 (2008). He argues that, while in most cases corroboration might not be necessary, it does become an issue when the credibility of the minor children is brought into question as was done in this case. Appellant recognizes that this court will only reverse a credibility determination if the testimony is inherently improbable, physically impossible or so clearly unbelievable that reasonable minds can differ, see Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980), but he maintains that the testimony in this case is neither credible nor sufficient to support a conviction.

The State responds, and we agree, that appellant’s sufficiency challenge is not preserved for appellate review. A directed-verdict motion is a challenge to the sufficiency of the evidence and requires the movant to apprise the circuit court of the specific basis upon which the motion is made. See Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008). Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. See id.

After the State rested its case, appellant moved to dismiss all the charges against him, arguing,

|J guess it’d be motion for dismissal based on the State’s having failed to prove a prima facie case in this matter with all the elements of all four charges and the jurisdictional elements. The Court certainly has heard all the proof so far, and without going into that element by element, I will let you just weigh — weigh what you’ve heard against what you know the elements to be. I would more so say specifically that, with regard to jurisdiction, you have heard testimony from the witnesses so far about things that have happened, but there is — there is, at best, some doubt and some — some lack of proof on exactly where these things happened and when they happened in those places. You’ve heard testimony that — that things happened between here and Little Rock, or between Guy and Little Rock, or in or around Guy and so forth on dirt roads. And, aside from arguing all the specific elements for the motion for dismissal or directed verdict, I would point out that Guy and Quitman and the road between those places and Little Rock pass through more than one county. We’re talking about Faulkner County, Cle-burne County, and Pulaski County.

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Bluebook (online)
377 S.W.3d 481, 2010 Ark. App. 589, 2010 Ark. App. LEXIS 637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrow-v-state-arkctapp-2010.