Fernandez v. State

2010 Ark. 148, 362 S.W.3d 905, 2010 WL 1253095, 2010 Ark. LEXIS 183
CourtSupreme Court of Arkansas
DecidedApril 1, 2010
DocketNo. CR 09-1102
StatusPublished
Cited by19 cases

This text of 2010 Ark. 148 (Fernandez v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fernandez v. State, 2010 Ark. 148, 362 S.W.3d 905, 2010 WL 1253095, 2010 Ark. LEXIS 183 (Ark. 2010).

Opinion

DONALD L. CORBIN, Justice.

^Appellant, Jose Luis Fernandez, appeals the judgment of the Grant County Circuit Court convicting him of rape and sentencing him to life imprisonment. As Appellant received a life sentence, jurisdiction of this appeal is properly in this court pursuant to Ark. Sup.Ct. R. 1-2(a)(2) (2009). His sole point for reversal is a challenge to the sufficiency of the evidence. We find no error and affirm the judgment.

Appellant was charged by felony information with the June 2008 rape of T.O., a then twenty-year-old woman with a mental defect or mental incapacity. At his jury trial, the State presented testimony that Appellant’s family and T.O.’s family were neighbors, that Appellant had taken T.O. and other neighborhood children for a swim at the Saline River access on Highway 270 West in Grant County, and that Appellant and T.O. were spotted there in his van with their clothes disheveled. The State also presented scientific evidence that Appellant’s DNA was found on a swab taken from T.O.’s rectum.

[Appellant first moved for a directed verdict at the close of the State’s case, arguing that the State failed to prove that the defendant engaged in sexual intercourse or deviate sexual activity with another person who is incapable of consent because she is physically helpless, mentally defective, or mentally incapacitated. The defense rested without presenting any evidence, and then renewed its motion for directed verdict. The trial court denied both motions. In so ruling, the trial court stated that T.O.’s testimony that Appellant took some actions toward her that were in the nature of sexual connotation created a fact question for the jury to decide. The trial court ruled further that the DNA evidence taken from the swabs of T.O.’s anal and vaginal areas created a factual issue for the jury to determine whether Appellant committed either rape or the lesser-included offense of second-degree sexual assault.

Appellant’s sole point on appeal is that the trial court erred in denying his motions for directed verdict because the evidence was insufficient to support his rape conviction. Appellant concedes that T.O. was incapable of consent due to her mental defect or mental incapacity. He contends, however, that there was insufficient evidence that sexual intercourse occurred. Specifically, he contends that there was insufficient evidence that penetration occurred. The State responds that substantial evidence supports Appellant’s rape conviction.

We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Young v. State, 374 Ark. 350, 288 S.W.3d 221 (2008). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel Reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. When a criminal defendant challenges on appeal the sufficiency of the evidence convicting him, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. On appeal, this court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. Woods v. State, 363 Ark. 272, 213 S.W.3d 627 (2005).

Furthermore, circumstantial evidence may constitute substantial evidence to support a criminal conviction. Jefferson v. State, 372 Ark. 307, 276 S.W.3d 214 (2008). Guilt can be established without eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). The long-standing rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Jefferson, 372 Ark. 307, 276 S.W.3d 214. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Id. Upon review, this court determines whether the jury resorted to speculation and conjecture in reaching its verdict. Id. Overwhelming evidence of guilt is not required in cases based on circumstantial evidence; the test is one of substantiality. Ross, 346 Ark. 225, 57 S.W.3d 152.

The following statutory definitions apply to this case. A person commits the offense of “rape” if he or she engages in sexual intercourse or deviate sexual activity with a person who is incapable of consent because he or she is physically helpless, mentally defective, or Rmentally incapacitated. Ark.Code Ann. § 5-14-103(a)(2) (Supp.2009). “Sexual intercourse” is the penetration, however slight, of the labia majora by a penis. Ark.Code Ann. § 5-14-101(11) (Supp. 2009). “Deviate sexual activity” is any act of sexual gratification involving the 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)(B) (Supp.2009).

With regard to a rape conviction and to Appellant’s specific argument on appeal, this court has stated that “penetration can be shown by circumstantial evidence, and if that evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that is sufficient.” Young, 374 Ark. at 354, 288 S.W.3d at 224 (quoting Clem v. State, 351 Ark. 112, 117-18, 90 S.W.3d 428, 430 (2002)). Here, there was circumstantial evidence of penetration sufficient to constitute substantial evidence to support Appellant’s conviction for rape. We review the following evidence in the light most favorable to the State.

T.O. testified that she knew Appellant, that he lived near her, that he drove her down to the river, and that she had seen Appellant’s “dick” when they went swimming at the river. She also testified that Appellant had touched his “dick” to her “pussy” and that he was moving. She demonstrated the movement with dolls. She also used the dolls to demonstrate that both she and Appellant were partially unclothed at that time. During her testimony, T.O. was shown diagrams of a female and a male person and asked to identify various body Imparts; she identified the relevant female body parts as “tits” and “pussy” and the relevant male part as “dick.”

T.O.’s grandmother Joyce Kelley testified that when she learned that Appellant had taken T.O. and others swimming, she went to find T.O. because T.O. could not swim. Kelley stated that after she arrived at the river, she found T.O. in a van with Appellant, that Appellant’s pants were unzipped, and that T.O. was pulling up her clothes. Kelley stated that she then called the police.

Corporal Ryan Jacks of the Arkansas State Police testified that he was the first officer on the scene at the river, that he observed Appellant sitting in the driver’s seat of a van, and that he observed T.O. with Kelley over by a bridge.

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Bluebook (online)
2010 Ark. 148, 362 S.W.3d 905, 2010 WL 1253095, 2010 Ark. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fernandez-v-state-ark-2010.