David Kelley-Lucas v. State of Arkansas

2023 Ark. App. 93

• Court: Court of Appeals of Arkansas
• Decided: February 22, 2023
• Status: Published

Opinion

Cite as 2023 Ark. App. 93 ARKANSAS COURT OF APPEALS DIVISION III No. CR-22-126

DAVID KELLEY-LUCAS Opinion Delivered February 22, 2023 APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. 04CR-20-422]

STATE OF ARKANSAS HONORABLE ROBIN F. GREEN, APPELLEE JUDGE

AFFIRMED

RAYMOND R. ABRAMSON, Judge

David Kelley-Lucas was convicted by a Benton County Circuit Court jury of one

count of rape and one count of second-degree sexual assault. The victim was his ten-year-old

daughter, minor child (MC). Kelley-Lucas was sentenced to twenty-five years’ imprisonment

for the rape conviction and twelve years’ imprisonment for the second-degree sexual-assault

conviction, with the sentences ordered to be served consecutively, for a total of thirty-seven

years in the Arkansas Department of Correction. On appeal, Kelley-Lucas challenges the

sufficiency of the evidence to support his convictions. We affirm.

At trial, MC testified that the sexual abuse took place at home during the

Thanksgiving holiday break in 2019. MC lived in her father’s home with him and her

stepmother, Michelle Kelley-Lucas. Michelle was not present during this time because she was at an inpatient mental-health facility after a suicide attempt that, according to her, was

due, in part, to Kelley-Lucas’s infidelity.

One evening during the break, MC and Kelley-Lucas were home when Kelley-Lucas

asked MC to “scratch his legs,” which was a common request. At the time, Kelley-Lucas was

wearing a shirt and his boxer shorts. MC scratched his legs for twenty or thirty minutes until

he told her to take a shower, which she did. After showering, MC put on her pajama pants

and a shirt, but Kelley-Lucas made her change into a nightgown. He told her to scratch his

legs again, and after about ten minutes of doing so, told MC to sit between his legs because

it would be easier for her to scratch his legs. MC did so and was sitting up between Kelley-

Lucas’s legs, but Kelley-Lucas told her to lie down with her head on his stomach so he could

see the TV.

Kelley-Lucas then began to scratch MC while asking her where she wanted him to

scratch. He then started to touch her “private”—which she identified at trial as her vagina—

outside her underwear. Kelley-Lucas touched her vagina with his hand and moved his hand

around for some time, then began to touch her vagina inside her underwear. She could feel

Kelley-Lucas’s fingers touching the inside of her vagina. She did not remember exactly how

long this went on but recalled that “[i]t felt like a long time.” He eventually stopped touching

her vagina and told her to go to bed.

The next night, after dinner and her shower, Kelley-Lucas made MC change into a

nightgown and lie in his lap, and then he touched her vagina inside her underwear. On the

third night, Kelley-Lucas had MC scratch his legs after she took her shower, then he had her

2 lie between his legs again. He touched MC’s vagina under her underwear for ten minutes.

Kelley-Lucas later warned MC not to tell anybody about what had been going on at the

house.

On February 19, 2020, MC told Michelle that Kelley-Lucas had been touching her,

and Michelle called 911. MC was interviewed at the Children’s Advocacy Center of Benton

County. She told the interviewer that Kelley-Lucas would grab and rub her “front private”

and that he tried to press the center of her private. She also said Kelley-Lucas tried to get her

to watch pornography and, at times, would stick his hand in his underwear and play with his

privates.

On appeal, Kelley-Lucas argues that sufficient evidence does not support his

convictions for rape and second-degree sexual assault. Specifically, he asserts the State failed

to prove penetration required for “deviant sexual behavior” under the rape statute or sexual

contact under the sexual-assault statute.

In reviewing a sufficiency challenge, we assess the evidence in the light most favorable

to the State and consider only the evidence that supports the verdict. Armstrong v. State, 2020

Ark. 309, 607 S.W.3d 491. We will affirm a judgment of conviction if substantial evidence

exists to support it. Id. Substantial evidence is evidence that 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.

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.

3 Collins v. State, 2021 Ark. 35, 617 S.W.3d 701. Whether the evidence excludes every other

hypothesis is left to the jury to decide. Id. Further, the credibility of witnesses is an issue for

the jury, not the court; 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. Armstrong,

supra.

“A person commits rape if he or she engages in sexual intercourse or deviate sexual

activity with another person who is less than fourteen years of age.” Ark. Code Ann. § 5-14-

103(a)(3)(A) (Supp. 2021). Deviate sexual activity means “any act of sexual gratification

involving [t]he penetration, however, slight, of the anus or mouth of a person by the penis

of another person; or [t]he penetration, however, slight, of the labia majora or anus of a

person by any body member or foreign instrument manipulated by another person.” Ark.

Code Ann. § 5-14-101(1)(A) & (B) (Supp. 2021).

“A person commits sexual assault in the second degree if the person, being eighteen

years of age or older, engages in sexual contact with another person who is less than fourteen

years of age and not the person’s spouse.” Ark. Code Ann. § 5-14-125(a)(3) (Supp. 2021).

“Sexual contact” is defined as “any act of sexual gratification involving the touching, directly

or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a

female.” Ark. Code Ann. § 5-14-101(12)(A).

A victim’s uncorroborated testimony may constitute substantial evidence to sustain a

conviction for rape or sexual assault, even when the victim is a child. E.g., Jeffries v. State,

4 2014 Ark. 239, at 4, 434 S.W.3d 889, 893 (rape); see also, e.g., Brown v. State, 2010 Ark. 420,

at 10, 378 S.W.3d 66, 72 (sexual assault).

Here, Kelley-Lucas argues that the evidence of his having penetrated MC was

insufficient because MC’s statements on the stand were “the only time her story included

any penetrative aspects.” Citing Houston v. State, 293 Ark. 492, 493, 739 S.W.2d 154, 155

(1987), and Hamm v. State, 214 Ark. 171, 173, 214 S.W.2d 917, 918 (1948), Kelley-Lucas

maintains the State’s burden was not met because the victim’s testimony was not “positive

and unequivocal.” We find no merit in his argument.

MC testified that Kelley-Lucas made her scratch his legs, then he touched her vagina

underneath her underwear with his hand on three consecutive nights. She said Kelley-Lucas

touched her on the inside of her vagina with his hand on the first night, and she knew this

because she could feel it. MC’s testimony alone constitutes sufficient evidence that Kelley-

Lucas committed rape and second-degree sexual assault. Jeffries, supra.

Further, we do not weigh the evidence presented at trial or assess the credibility of

the witnesses because those are matters for the fact-finder. 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. Hall v. State, 361 Ark. 379, 383, 206 S.W.3d 830, 833 (2005). We

cannot assess the credibility of witnesses, nor will we overturn supreme court precedent.

Substantial evidence was presented to the jury in the instant case to support Kelley-Lucas’s

convictions of rape and second-degree assault, and we affirm.

Affirmed.

5 GRUBER and BARRETT, JJ., agree.

Lisa-Marie Norris, for appellant.

Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.