Cite as 2021 Ark. App. 56 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION I No. CR-19-671 2023.06.22 12:50:46 -05'00' 2023.001.20174 Opinion Delivered: February 10, 2021
RYAN JAMES KIRKLAND APPEAL FROM THE WASHINGTON APPELLANT COUNTY CIRCUIT COURT [NO. 72CR-15-1231] V.
STATE OF ARKANSAS HONORABLE JOANNA TAYLOR, APPELLEE JUDGE AFFIRMED
BART F. VIRDEN, Judge
This case originally appeared before this court as a no-merit appeal. We ordered
rebriefing due to deficiencies. Kirkland v. State, 2020 Ark. App. 348, 604 S.W.3d 614. The
case has been returned to us as a merit appeal challenging the sufficiency of the evidence. In
January 2019, a Washington County jury convicted appellant Ryan James Kirkland of three
counts of rape and two counts of second-degree sexual assault involving his long-term, live-
in girlfriend’s daughter, A.D. Kirkland was sentenced to an aggregate term of ninety years’
imprisonment. On appeal, he argues that the trial court erred in denying his directed-verdict
motion because the victim was not believable and because the nurse expert’s testimony
should have been disregarded. We affirm. I. Standard of Review
We treat a motion for directed verdict as a challenge to the sufficiency of the
evidence. King v. State, 2018 Ark. App. 572, 564 S.W.3d 563. In reviewing a challenge to
the sufficiency of the evidence, we view the evidence in the light most favorable to the
State and consider only the evidence that supports the verdict. Id. 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. Daniels v. State, 2018 Ark. App.
334, 551 S.W.3d 428.
A person commits rape if he or she engages in sexual intercourse or deviate sexual
activity with another person who is a minor and the actor is the victim’s guardian. Ark.
Code Ann. § 5-14-103(a)(4)(A)(i) (Supp. 2019). “Sexual intercourse” means penetration,
however slight, of the labia majora by a penis. Ark. Code Ann. § 5-14-101(12). “Deviate
sexual activity” means any act of sexual gratification involving the penetration, however
slight, of the anus or mouth of a person by the penis of another person; or 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)(A), (B).
A person commits sexual assault in the second degree if the person engages in sexual
contact with a minor and the actor is the minor’s guardian, a temporary caretaker, or a
person in a position of trust or authority over the minor. Ark. Code Ann. § 5-14-
125(a)(4)(A)(iv). Second-degree sexual assault may also be committed if the person, being
eighteen years of age or older, engages in sexual contact with another person who is less
2 than fourteen years of age and not the person’s spouse. Ark. Code Ann. § 5-14-125(a)(3).
“Sexual contact” means 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(11).
II. Trial Testimony
Considering only the evidence that supports the verdict, the testimony revealed that
on the night of May 6, 2015, A.D. ran away from the home she shared with her mother,
Kirkland, and her younger brother. She went to the home of neighbors where she told
them that Kirkland was chasing her, that she was afraid of him, and that he had been
inappropriate with her. The neighbors called the police.
At the time of trial in January 2019, A.D. was twenty years old. She testified that
from the time she was eight years old until she was sixteen, Kirkland, whom she referred to
as her “stepdad,” raped and sexually abused her. She said that Kirkland began by cuddling
with her at night and touching her breasts and vagina. A.D. stated that the abuse progressed
from touching to oral sex, digital penetration, and attempted penile penetration of her
vagina. Admitted into evidence was a drawing by A.D. of Kirkland’s penis with
distinguishing marks. Later, a detective testified that he saw those distinguishing marks on
Kirkland’s penis when he took a photo with Kirkland’s permission.
Sue Stockton, a sexual-assault nurse examiner who performed an exam on A.D.,
testified that a deep notch on A.D.’s hymen could be consistent with penetration. Lisa
Channell, chief criminalist at the Arkansas State Crime Laboratory, testified that she found
sperm cells on a cutting from the comforter on A.D.’s bed. Jennifer Beaty, a DNA analyst,
3 testified that the comforter contained DNA consistent with Kirkland’s. Detective Leonard
Graves interviewed Kirkland, who denied A.D.’s allegations, described himself as her “dad,”
and claimed that A.D. was angry about being disciplined. Other witnesses testified for the
State, including neighbors, A.D.’s mother, A.D.’s past and present friends from school, and
a forensic examiner who had interviewed A.D.
Defense counsel moved for a directed verdict at the close of the State’s case and at
the close of all of the evidence challenging several elements of the offenses, including sexual
contact, deviate sexual activity, sexual intercourse, and Kirkland’s status as A.D.’s guardian.
The trial court denied Kirkland’s motion and denied the renewed motion. The jury found
him guilty on all counts.
III. Discussion
Kirkland argues that the weight of the inconsistent and uncorroborated testimony,
together with the plausible alternative motive for the victim’s complaints, makes the
testimony inherently improbable for reasonable minds. Kirkland points to the following:
The neighbors who took in A.D. the night she ran away did not recall any mention of
sexual abuse; the victim’s mother, who lived in the small house with Kirkland and A.D.,
did not have any knowledge of the abuse; A.D. admitted that she had lied about other
things; A.D. gave “shifting and inconsistent stories” to the forensic examiner and a detective,
and she failed to mention certain details; the scientific evidence was equivocal and scant in
that the crime-lab witnesses described finding only a few sperm cells from only one cutting
of fabric; and Kirkland, inconsistent with guilt, provided a statement to police, consented
to a search, and volunteered his DNA.
4 Kirkland describes the trial as “a swearing match” with credibility of the utmost
importance. Where the testimony is conflicting, we do not pass upon the credibility of the
witnesses and have no right to disregard the testimony of any witness after the jury has given
it full credence, where it cannot be said with assurance that it was inherently improbable,
physically impossible, or so clearly unbelievable that reasonable minds could not differ
thereon. Davenport v. State, 373 Ark. 71, 281 S.W.3d 268 (2008). Here, the jury must have
believed A.D.’s testimony. We find nothing inherently improbable in her testimony such
that the jury could not convict Kirkland of rape and sexual assault.
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Cite as 2021 Ark. App. 56 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION I No. CR-19-671 2023.06.22 12:50:46 -05'00' 2023.001.20174 Opinion Delivered: February 10, 2021
RYAN JAMES KIRKLAND APPEAL FROM THE WASHINGTON APPELLANT COUNTY CIRCUIT COURT [NO. 72CR-15-1231] V.
STATE OF ARKANSAS HONORABLE JOANNA TAYLOR, APPELLEE JUDGE AFFIRMED
BART F. VIRDEN, Judge
This case originally appeared before this court as a no-merit appeal. We ordered
rebriefing due to deficiencies. Kirkland v. State, 2020 Ark. App. 348, 604 S.W.3d 614. The
case has been returned to us as a merit appeal challenging the sufficiency of the evidence. In
January 2019, a Washington County jury convicted appellant Ryan James Kirkland of three
counts of rape and two counts of second-degree sexual assault involving his long-term, live-
in girlfriend’s daughter, A.D. Kirkland was sentenced to an aggregate term of ninety years’
imprisonment. On appeal, he argues that the trial court erred in denying his directed-verdict
motion because the victim was not believable and because the nurse expert’s testimony
should have been disregarded. We affirm. I. Standard of Review
We treat a motion for directed verdict as a challenge to the sufficiency of the
evidence. King v. State, 2018 Ark. App. 572, 564 S.W.3d 563. In reviewing a challenge to
the sufficiency of the evidence, we view the evidence in the light most favorable to the
State and consider only the evidence that supports the verdict. Id. 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. Daniels v. State, 2018 Ark. App.
334, 551 S.W.3d 428.
A person commits rape if he or she engages in sexual intercourse or deviate sexual
activity with another person who is a minor and the actor is the victim’s guardian. Ark.
Code Ann. § 5-14-103(a)(4)(A)(i) (Supp. 2019). “Sexual intercourse” means penetration,
however slight, of the labia majora by a penis. Ark. Code Ann. § 5-14-101(12). “Deviate
sexual activity” means any act of sexual gratification involving the penetration, however
slight, of the anus or mouth of a person by the penis of another person; or 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)(A), (B).
A person commits sexual assault in the second degree if the person engages in sexual
contact with a minor and the actor is the minor’s guardian, a temporary caretaker, or a
person in a position of trust or authority over the minor. Ark. Code Ann. § 5-14-
125(a)(4)(A)(iv). Second-degree sexual assault may also be committed if the person, being
eighteen years of age or older, engages in sexual contact with another person who is less
2 than fourteen years of age and not the person’s spouse. Ark. Code Ann. § 5-14-125(a)(3).
“Sexual contact” means 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(11).
II. Trial Testimony
Considering only the evidence that supports the verdict, the testimony revealed that
on the night of May 6, 2015, A.D. ran away from the home she shared with her mother,
Kirkland, and her younger brother. She went to the home of neighbors where she told
them that Kirkland was chasing her, that she was afraid of him, and that he had been
inappropriate with her. The neighbors called the police.
At the time of trial in January 2019, A.D. was twenty years old. She testified that
from the time she was eight years old until she was sixteen, Kirkland, whom she referred to
as her “stepdad,” raped and sexually abused her. She said that Kirkland began by cuddling
with her at night and touching her breasts and vagina. A.D. stated that the abuse progressed
from touching to oral sex, digital penetration, and attempted penile penetration of her
vagina. Admitted into evidence was a drawing by A.D. of Kirkland’s penis with
distinguishing marks. Later, a detective testified that he saw those distinguishing marks on
Kirkland’s penis when he took a photo with Kirkland’s permission.
Sue Stockton, a sexual-assault nurse examiner who performed an exam on A.D.,
testified that a deep notch on A.D.’s hymen could be consistent with penetration. Lisa
Channell, chief criminalist at the Arkansas State Crime Laboratory, testified that she found
sperm cells on a cutting from the comforter on A.D.’s bed. Jennifer Beaty, a DNA analyst,
3 testified that the comforter contained DNA consistent with Kirkland’s. Detective Leonard
Graves interviewed Kirkland, who denied A.D.’s allegations, described himself as her “dad,”
and claimed that A.D. was angry about being disciplined. Other witnesses testified for the
State, including neighbors, A.D.’s mother, A.D.’s past and present friends from school, and
a forensic examiner who had interviewed A.D.
Defense counsel moved for a directed verdict at the close of the State’s case and at
the close of all of the evidence challenging several elements of the offenses, including sexual
contact, deviate sexual activity, sexual intercourse, and Kirkland’s status as A.D.’s guardian.
The trial court denied Kirkland’s motion and denied the renewed motion. The jury found
him guilty on all counts.
III. Discussion
Kirkland argues that the weight of the inconsistent and uncorroborated testimony,
together with the plausible alternative motive for the victim’s complaints, makes the
testimony inherently improbable for reasonable minds. Kirkland points to the following:
The neighbors who took in A.D. the night she ran away did not recall any mention of
sexual abuse; the victim’s mother, who lived in the small house with Kirkland and A.D.,
did not have any knowledge of the abuse; A.D. admitted that she had lied about other
things; A.D. gave “shifting and inconsistent stories” to the forensic examiner and a detective,
and she failed to mention certain details; the scientific evidence was equivocal and scant in
that the crime-lab witnesses described finding only a few sperm cells from only one cutting
of fabric; and Kirkland, inconsistent with guilt, provided a statement to police, consented
to a search, and volunteered his DNA.
4 Kirkland describes the trial as “a swearing match” with credibility of the utmost
importance. Where the testimony is conflicting, we do not pass upon the credibility of the
witnesses and have no right to disregard the testimony of any witness after the jury has given
it full credence, where it cannot be said with assurance that it was inherently improbable,
physically impossible, or so clearly unbelievable that reasonable minds could not differ
thereon. Davenport v. State, 373 Ark. 71, 281 S.W.3d 268 (2008). Here, the jury must have
believed A.D.’s testimony. We find nothing inherently improbable in her testimony such
that the jury could not convict Kirkland of rape and sexual assault.
Arkansas appellate courts have “continually held that a rape victim’s testimony alone
is sufficient and is substantial evidence to support a rape conviction.” Clayton v. State, 2012
Ark. App. 199, at 4–5. The same is true for second-degree sexual assault. Savage v. State,
2013 Ark. App. 133. A.D. testified to specific acts that fall within the definitions of sexual
contact, deviate sexual activity, and sexual intercourse. Although A.D. may have been angry
about being disciplined or, specifically, having her phone taken away by Kirkland, the jury
could nevertheless find her credible regarding what happened to her over a period of years.
Next, Kirkland argues that Stockton’s testimony should have been disregarded
because she referred to anal penetration when there had been no mention of this by A.D.
and because Stockton had said that she commonly relies on histories provided to others that
are often wrong. Kirkland objected during Stockton’s testimony, and the trial court gave a
curative instruction to the jury and allowed vigorous cross-examination of the expert.
Kirkland nevertheless argues on appeal that the damage had been done and that Stockton’s
testimony should have been given no weight whatsoever. We do not know what weight
5 the jury may have given Stockton’s testimony. Stockton’s testimony, however, was not
determinative of guilt given that A.D.’s testimony amounts to substantial evidence to
support Kirkland’s convictions.
Affirmed.
ABRAMSON and HIXSON, JJ., agree.
Cullen & Co., PLLC, by: Tim Cullen, for appellant.
Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.