Michael A. Thomas v. State of Arkansas
This text of 2020 Ark. App. 307 (Michael A. Thomas v. State of Arkansas) 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.
Opinion
Cite as 2020 Ark. App. 307 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-07-07 12:12:40 Foxit PhantomPDF Version: 9.7.5 DIVISION I No. CR-19-941
Opinion Delivered May 13, 2020
MICHAEL A. THOMAS APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT, FIRST DIVISION [NO. 60CR-18-2394] V. HONORABLE LEON JOHNSON, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
Michael A. Thomas appeals the sentencing order entered by the Pulaski County Circuit
Court convicting him of rape and sentencing him as a habitual offender to forty years’
imprisonment. Michael’s sole argument on appeal is that the circuit court erred in denying his
motions for directed verdict. We affirm.
The evidence presented at trial reveals that on March 27, 2018, sixteen-year-old BK
came home from school to an apartment in which her family—her mother (Pamela Bonds),
her four younger siblings, and her mother’s boyfriend (Terrell 1)—were living with her aunt
(Kimberly Bonds) and her family—Kimberly’s four children, BK’s grandmother, and
Kimberly’s boyfriend (Michael). BK testified that her aunt was asleep in her bedroom, her
siblings and cousins were running around, and Michael was in the living room “messing” with
1Terrell’s last name is not in the record. the TV. BK sat down on the couch in the living room, covered herself with a blanket, and was
playing with her phone when Michael told the children to go play outside. Then, Michael
started “playing around” with BK by taking her blanket. She told him she did not want to
“play,” and he pulled her leggings and panties down. She said she tried to push him off her
and to stand up, but Michael turned her around using both of his hands, pushed her face into
the couch, grabbed both her hands behind her back, and inserted his penis into her vagina for
a couple of seconds. BK stated that when Michael released her, he “ran to the back” of the
apartment, and she went to the bathroom. BK testified that she could not scream during the
assault because her face was in the couch but that she was making some noises and crying.
BK stated that she told her younger sister, TB, about the incident but did not tell
anyone else. BK said that a couple weeks later her mother told her to come home from school,
where BK found her mother, her aunt, TB, and Michael waiting for her. BK’s mother asked
if the incident with Michael was consensual, and BK answered no. BK stated that there was
“arguing, screaming, and hollering” thereafter, and her aunt told BK and her family they had
to move out. BK stated that her grandmother took her to the hospital in May for an
examination and that she was interviewed by the police at that time.
Pamela, BK’s mother, testified that in April, TB told her that Michael had been
touching her and that he had raped BK. Pamela told her sister, Kimberly, and together they
confronted Michael. Pamela said that Michael denied the rape accusation but later said the
encounter was consensual. When Pamela told Michael that he was going to be in trouble, he
became upset and wanted to fight BK. Pamela said that Kimberly told them to move out.
2 Kimberly testified that on April 13, she asked Pamela and her family to move out after
an unrelated confrontation had occurred between Michael and Terrell the day before.
Kimberly said Pamela left the apartment to cash a check, and when she returned, she made
the rape accusation against Michael, which he denied. According to Kimberly, when BK
returned home from school that day, Michael told BK he did not do anything to her, but BK
said, “[Y]es, you did.” Kimberly said that “everybody was fussing and wrestling around,” and
finally Pamela left with her family. Kimberly testified that she did not believe BK’s accusation
against Michael and that there is no way the rape could have happened with so many people
in the home, including BK’s grandmother who had had a stroke, cannot walk, and stays on
the living-room couch all day. Kimberly also stated that she did not think she and Michael
were home in March at the time BK claims the assault occurred.
On this evidence, the jury convicted Michael of rape by forcible compulsion pursuant
to Arkansas Code Annotated section 5-14-103 (Supp. 2017), and the circuit court sentenced
him to forty years’ imprisonment. On appeal, Michael argues that the State failed to
present substantial evidence to support the conviction. He contends that the only evidence
presented by the State in support of the rape charge is the testimony of BK and that her
description of the incident is insufficient. He contends that there was no corroborating
evidence of any kind—no medical evidence, no injury, no bleeding, no bruising, no DNA
evidence, and no third-party witnesses. He argues that BK did not immediately tell anyone
about the alleged incident and that she did not talk to the police or go to the hospital until
approximately forty-three days after the alleged incident had occurred. Finally, he argues that
3 BK’s testimony that she could feel both of his hands holding her hands behind her back is
insufficient evidence of forcible compulsion.
We cannot reach the merits of Michael’s argument on appeal because it is not
preserved. Arkansas Rule of Criminal Procedure 33.1 provides in pertinent part:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of all of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.
....
(c) . . . A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. . . .
Ark. R. Crim. P. 33.1(a), (c) (2019). Rule 33.1 is to be strictly construed. Carey v. State, 365 Ark.
379, 383, 230 S.W.3d 553, 556 (2006). Accordingly, in order to preserve a challenge to the
sufficiency of the evidence, an appellant must make a specific motion for a directed verdict,
both at the close of the State’s case and at the end of all the evidence, that advises the circuit
court of the exact element of the crime that the State has failed to prove. Id., 230 S.W.3d at
556. The reason underlying the requirement that specific grounds be stated and that the absent
proof be pinpointed is that it allows the circuit court the option of either granting the motion
or, if justice requires, of allowing the State to reopen its case and supply the missing proof. Id.
at 383–84, 230 S.W.3d at 556. A general motion that merely asserts that the State has failed to
prove its case is inadequate to preserve the issue for appeal. Id. at 384, 230 S.W.3d at 556.
At the close of the State’s case, counsel for Michael moved for a directed verdict:
DEFENSE COUNSEL: I move for directed verdict, Your Honor.
THE COURT: What—for—on what grounds? 4 DEFENSE COUNSEL: They have not met their burden of proof.
THE COURT: All right. The motion for directed verdict is denied.
After the defense rested its case, Michael’s counsel renewed the directed-verdict motion:
PROSECUTOR: Do you want to renew your motion for directed verdict?
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