K.B. v. State

2017 Ark. App. 478, 531 S.W.3d 420, 2017 Ark. App. LEXIS 561
CourtCourt of Appeals of Arkansas
DecidedSeptember 27, 2017
DocketNo. CR-16-1073
StatusPublished
Cited by3 cases

This text of 2017 Ark. App. 478 (K.B. 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
K.B. v. State, 2017 Ark. App. 478, 531 S.W.3d 420, 2017 Ark. App. LEXIS 561 (Ark. Ct. App. 2017).

Opinion

RAYMOND R. ABRAMSON, Judge

hK.B. appeals the Garland County Circuit Court’s June 20, 2016 adjudication order finding him guilty of rape pursuant to Arkansas Code Annotated section 5-14-103 (Repl. 2013). KB. and his codeféndant, C.J.M., were tried together in a joint delinquency proceeding. We affirmed the circuit court’s decision in C.J.M. v. State, 2017 Ark. App. 477, 531 S.W.3d 412; handed down this same date, and we affirm the instant case as Well.

On appeal, KB. argues that (l)'the circuit court erred by denying his motion to dismiss because the State presented insufficient evidence to meet its burden of forcible compulsion; (2) the circuit court should have granted his motion for new trial because material evidence1 was destroyed and suppressed; (3) the circuit court erred in denying the motion to suppress KB.’s statement in violation of Arkansas Code Annotated section 9—27-21 (Repl. 2015), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct 1602, 16 L.Ed.2d 694 (1966); and (4) the circuit court abused its discretion in denying his motion for a new trial based on newly discovered evidence.

KB. first argues that the State did not present sufficient evidence to meet its burden of forcible compulsion under Arkansas Code Annotated section 5-14-103. The statute provides that a person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. See Ark. Code Ann. § 5-14-10S(a)(l). Although a delinquency adjudication is not a criminal conviction, the standard of review is the same as it would be in a criminal case. E.g., A.D. v. State, 2015 Ark. App. 35, at 4, 453 S.W.3d 696, 698 (citing E.S. v. State, 2013 Ark. App. 378, 2013 WL 2445213). A motion to dismiss made during an adjudication proceeding is a challenge to the sufficiency of the State’s evidence. E.g., Stewart v. State, 362 Ark. 400, 403, 208 S.W.3d 768, 770 (2005) (citing Ark. R. Crim. P. 33.1).

When a defendant challenges an adjudication based :on the sufficiency of the evidence presented at the hearing, the evidence is reviewed in the light most, favorable to the State. Id. (citing Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003)). Only evidence that supports the adjudication will be considered. Id. The test for determining the sufficiency of the evidence is whether the adjudication is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel the fact-finder to make a conclusion without resorting to speculation or conjecture. Id.

In rape cases, the requirement of substantial evidence is satisfied by the rape victim’s testimony. See, e.g., Allen v. State, 2016 Ark. App. 537, at 3, 506 S.W.3d 278, 281 (citing Bishop v. State, 310 Ark. 479, 484, 839 S.W.2d 6, 9. (1992)). Our appellate courts have repeatedly held that the uncorroborated testimony of a rape victim that shows penetration is sufficient evidence for a conviction. Lamb v. State, 372 Ark. 277, 282, 275 S.W.3d 144, 148 (2008). Additionally, there is no requirement that there be scientific evidence of rape. See, e.g., Sandrelli v. State, 2015 Ark. App. 127, at 3, 2015 WL 831195.

Here, the victim testified in detail about the events that took place on February 24, 2016, and how both KB. and C.J.M. had forced her into the fiéldhouse and how C.J.M. had “touched her on the inside” with his finger, while KB. restrained her by the waist and grabbed her hands.

As noted above, a person commits the offense of rape if he or she engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Ark. Code Ann. § 5-14-103(a)(l). “Deviate sexual activity” is defined as any act of sexual gratification involving (A) the penetration, however slight, of the anus or mouth of a person by the penis of another person; or (B) 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).

“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). “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.” Williams v. State, 2011 Ark. App. 675, at 6, 386 S.W.3d 609, 613.

UThe elements of accomplice liability are defined by Arkansas Code Annotated section 5-2-403 which, in pertinent part, provides:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, the person:
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing the offense[.]

Although it is true that the mere presence at the scene of the crime does not make one an accomplice as a matter of law, Pilcher v. State, 303 Ark. 335, 338-39, 796 S.W.2d 845, 847-48 (1990), each participant is criminally liable for his or her own conduct and cannot disclaim responsibility because he or she did not personally take part in every act that went into making up the crime as a whole. Bass v. State, 2013 Ark. App. 55, at 2, 2013 WL 360863. A defendant is considered an accomplice if he or she takes some part in or performs some act involved in the commission of the crime; relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in the proximity of a crime, the opportunity to commit the crime, and an association with a person involved in a maimer suggestive of joint participation. Id.

In the instant case, the testimony presented at the hearing was substantial evidence to show that while K.B. was forcibly restraining the victim, C.J.M. digitally raped her. The victim’s own testimony, if believed by the trier of fact, in this case the circuit court, was sufficient to establish KB.’s guilt. Any inconsistencies in the victim’s account of what happened were for the circuit court to resolve. See, e.g., Lowe v. State, 2016 Ark. App. 389, at 6, 500 S.W.3d 176, 180. We hold there is no basis for reversal on this argument. This court will not second-guess the fact-finder’s credibility determinations. Brown v. State, 2009 Ark. App. 873. We will disregard testimony that the fact-finder has found to be credible only if it is so inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ about it. Conte v. State, 2015 Ark. 220, 463 S.W.3d 686. Such is not the case here.

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Related

Hillman v. State
2019 Ark. App. 89 (Court of Appeals of Arkansas, 2019)
C.J.M. v. State
2017 Ark. App. 477 (Court of Appeals of Arkansas, 2017)

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Bluebook (online)
2017 Ark. App. 478, 531 S.W.3d 420, 2017 Ark. App. LEXIS 561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kb-v-state-arkctapp-2017.