Bell v. State

266 S.W.3d 696, 371 Ark. 375, 2007 Ark. LEXIS 583
Supreme Court of Arkansas·Decided November 1, 2007·No. CR 07-261·Published·Cited by 34 cases

Opinions

Annabelle Clinton Imber, Justice.

Appellant Richard Lynn stice. County Circuit Court of one count of rape and two counts of endangering the welfare of a minor in the second degree. The circuit court sentenced him to life imprisonment for the rape conviction and no time on the endangering-the-welfare-of-a-minor convictions. He now appeals, alleging six points of error. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2) (2007), as Bell received a sentence oflife imprisonment. We find no error and affirm.

On the morning of May 5, 2005, Bell was in the parking lot of the Lonoke County Office of the Arkansas Department of Health and Human Services (DHHS). He was waiting in his car while his girlfriend and her mother went into the DHHS office. In the car with him were the victim, B.C., age six, and the victim’s brother, S.C., approximately age three. Both children are the siblings of Bell’s girlfriend. Also in the car was J.B., Bell’s seven-month-old son by his girlfriend.

That same morning, Matthew Heil happened to be sitting in a car in the DHHS parking lot. He was waiting with his two young nephews while his sister-in-law, Shannette Heil, went to a meeting inside the DHHS office. Heil testified at trial that the van in which he was waiting was facing Bell’s car, but two parking spaces over. He also testified that his van sits high above the ground and that he could see into Bell’s car. Heil observed Bell sitting in the passenger’s seat, shaking around violently, while a young girl leaned between the seats and bobbed her head up and down out of Bell’s lap. Heil watched this go on for approximately five or ten minutes. He admitted that he saw no exposed genitalia and could not determine if Bell’s pants were up or down. At one point, Bell realized he was being watched and put his leg over the console, started the car, and backed it up approximately two feet (though this did not obstruct Heil’s view). Because Heil believed Bell was “having the little girl do something inappropriate,” he waited for his sister-in-law to return, at which point he asked her to view the situation from inside the van. When she verified that Bell appeared to be receiving oral sex, Heil went to the Lonoke Police Department, which shares a parking lot with the DHHS office.

After Heil reported the incident, several police officers came outside to investigate. The officers testified that B.C. was in the front seat with Bell when they approached the car, but that she jumped into the back seat as soon as she saw them. Upon searching the car, they found all three children in the back seat. Bell’s pants were up when the officers made contact with him. He was taken to the police department for questioning, where he gave an audio-taped statement. Bell confessed that he told B.C. to touch his penis and that she performed oral sex on him. This confession was corroborated by the testimony of Lisa Channel of the Arkansas State Crime Laboratory, who testified that a hair found on Bell’s boxer shorts was microscopically similar to the head hair sample received from the victim.

Bell was charged with rape and three counts of endangering the welfare of a minor in the second degree. Because there was no evidence that the infant J.B. was awake at the time of the offense, the circuit court granted his directed-verdict motion as to one count of endangering the welfare of a minor. His other motions for directed verdict were denied.

I. Sufficiency of the Evidence

Bell asserts that, without his confession and a hearsay statement made by S.C., both of which he claims were improperly admitted, the evidence was insufficient to support the verdict. Although this point on appeal was listed fifth among Bell’s points, double jeopardy considerations require this court to consider a challenge to the sufficiency of the State’s evidence prior to the other issues raised in the case. Holsombach v. State, 368 Ark. 415, 246 S.W.3d 871 (2007).

We first note the State’s assertion that this issue was not properly preserved for appeal due to the untimeliness of Bell’s renewed motion for directed verdict. The State correctly notes that a directed-verdict motion is to be made at the close of the evidence offered by the prosecution and renewed at the close of all the evidence. See Ark. R. Crim. P. 33.1(a) (2007). Failure to challenge the sufficiency of the evidence at those times will waive the issue for appellate review: “A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal.” Ark. R. Crim. P. 33.1(c). The State is also correct in pointing out that a renewal made after the jury has been instructed is untimely. See Ellis v. State, 366 Ark. 46, 233 S.W.3d 606 (2006). Our court has dismissed sufficiency challenges as not preserved for appeal when defense counsel waited until after the jury instructions to renew the motions for directed verdict. See, e.g., id.; Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998).

In the instant case, the defense offered no testimony or evidence. Thus, the close of the State’s case and the close of all the evidence occurred simultaneously. Under these circumstances, we conclude that a renewal of the directed-verdict motion made at the close of the State’s case was unnecessary. We have stated that “[a] defendant who goes forward with the production of additional evidence after a directed verdict motion is overruled waives any further reliance upon the former motion.” Thomas v. State, 315 Ark. 504, 506, 868 S.W.2d 483, 485 (1994). Here, the defense did not waive reliance on the earlier directed-verdict motion by the production of additional evidence. A renewal of the directed-verdict motion was therefore not required. Consequently, we deem the sufficiency challenge to be properly preserved for our review.

Our standard of review for a sufficiency challenge is well settled. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.

Furthermore, circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id. Whether the evidence excludes every other hypothesis is left to the jury to decide. Id. The credibility of witnesses is an issue for the jury and not the court. Id. 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.

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Bell v. State, 266 S.W.3d 696, 371 Ark. 375, 2007 Ark. LEXIS 583 (Ark. 2007).

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