Sergio Sanchez-Gonzales v. State of Arkansas

2023 Ark. App. 570, 682 S.W.3d 340

• Court: Court of Appeals of Arkansas
• Decided: December 6, 2023
• Status: Published

Opinion

Cite as 2023 Ark. App. 570 ARKANSAS COURT OF APPEALS DIVISION I No. CR-23-186

Opinion Delivered December 6, 2023

SERGIO SANCHEZ-GONZALES APPELLANT APPEAL FROM THE SALINE COUNTY CIRCUIT COURT V. [NO. 63CR-21-416]

STATE OF ARKANSAS HONORABLE KEN CASADY, JUDGE APPELLEE AFFIRMED

MIKE MURPHY, Judge

Appellant Sergio Sanchez-Gonzales appeals the decision of a Saline County jury

finding him guilty of rape and sentencing him to a term of thirty years in the Arkansas

Division of Correction. On appeal, appellant argues that substantial evidence does not

support the verdict and that the circuit court erred in admitting certain testimony over his

hearsay objection. We affirm.

The following facts as presented at trial support the verdict. Eleven-year-old MC

testified that when she was approximately seven years old, she, her mother, and her brother

moved in with appellant. She said that sometimes when her mother and brother went to the

store, appellant would touch her. She identified body parts on a diagram to the jury,

including the vulva (“my private part”), penis (“his private part”), and anus (“butt”). She

testified that appellant touched her private part and chest with his hand and that he inserted his penis into her vaginal opening and anus. She also testified that appellant would “would

tell me to put my hand on his private part and move it up and down.” MC testified it hurt

when his private went inside her butt and that it also hurt when his private went into her

private. She said it hurt to tee-tee after he put his private in her private. Appellant would

instruct her to go clean herself up afterward and not to tell anyone. Eventually, however,

MC told her fourth-grade teacher.

The teacher testified that one day, on the playground, MC sat down next to her,

“teared up,” and disclosed that “he hurts me at night.” The appellant objected to the hearsay,

and the court overruled the objection. The teacher reported the disclosure to school staff

and law enforcement.

MC was examined by a sexual-assault nurse examiner at a child advocacy center in

Benton on December 9, 2020. The nurse did not observe any physical injuries to MC’s

vagina or anus but noted that MC’s complaint of painful urination is consistent with

someone who has engaged in vaginal intercourse.

The appellant moved for a directed verdict at the conclusion of the State’s case-in-

chief, arguing that no evidence other than MC’s testimony supported the rape charge. The

motion was denied and again denied on renewal at the close of all the evidence. The jury

returned a guilty verdict, sentencing the appellant to thirty years’ imprisonment on the

charge of rape under Arkansas Code Annotated section 5-14-103(a) (Supp. 2023). On appeal,

the appellant challenges the sufficiency of the evidence and the hearsay admission.

2 In reviewing challenges to the sufficiency of the evidence, we determine whether

substantial evidence, direct or circumstantial, supports the verdict. Ralston v. State, 2019 Ark.

App. 175, 573 S.W.3d 607. Substantial evidence is evidence of sufficient certainty to compel

a conclusion without resort to suspicion or conjecture. Id. On review, we view the evidence

in the light most favorable to the State and only consider evidence that supports the verdict.

Hillman v. State, 2019 Ark. App. 89, at 2, 569 S.W.3d 372, 374.

To convict appellant of rape, the State had to prove that he “engage[d] in sexual

intercourse or deviate sexual activity with” MC “who was less than fourteen (14) years of

age.” Ark. Code Ann. § 5-14-103(a)(3)(A) (Supp. 2023). Sexual intercourse means the

penetration, however slight, of the labia majora by a penis. Ark. Code Ann. § 5-14-101(10)

(Supp. 2023). Deviate sexual activity “means any act of sexual gratification involving the

penetration, however slight, of the . . . mouth of a person by the penis of another person . .

. or of the labia majora . . . of one person by any body member . . . manipulated by another

person.” Ark. Code Ann. § 5-14-101(1)(A)–(B).

On appeal, appellant explains that he denied the allegations at the trial, MC did not

disclose any of the alleged conduct at the child advocacy center, and the nurse who

conducted the rape exam found no evidence of physical injury. He further argues that MC’s

testimony was elicited entirely through leading questions.

To the extent that appellant challenges how the prosecutor led the witness, he made

no objection to the leading at trial; in fact, counsel conceded it was necessary under these

circumstances. For this reason alone, appellant’s argument regarding leading is unpreserved.

3 Price v. State, 2010 Ark. App. 111, at 10, 377 S.W.3d 324, 331. But beyond that, leading

questions are allowed under Arkansas law where the witness is a very young victim of sexual

crimes and if it appears to the circuit court that such questions are necessary to elicit the

testimony. See Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994). Our courts allow leading

questions in such cases due to the seriousness of the crime, the natural embarrassment of

the witness, the child’s fear of testifying in a courtroom full of people, the necessity of the

testimony from the victim, and the threats toward victims by the perpetrators and to avoid

the possibility than an accused might escape punishment simply because of the victim’s

reluctance to testify. Id. at 609, 870 S.W.2d at 376.

The remainder of appellant’s argument amounts to nothing more than a request for

us to reweigh the evidence. This we will not do. The jury is the trier of fact, and the jury is

free to believe all or part of witnesses’ testimony and to resolve any questions of conflicting

testimony and inconsistent evidence. Lowe v. State, 2016 Ark. App. 389, at 3, 500 S.W.3d

176, 178. A rape victim’s testimony, standing alone, can constitute substantial evidence to

support a rape conviction. Hillman, 2019 Ark. App. 89, at 2, 569 S.W.3d at 374. Here, MC’s

testimony sufficiently establishes that she was less than fourteen when appellant engaged in

sexual intercourse or deviate sexual activity with her. Substantial evidence supports the

verdict.

In his second point, appellant argues that the circuit court erred by overruling his

hearsay objection to the teacher’s testimony regarding the out-of-court disclosure made by

MC and that this testimony prejudiced him at trial.

4 The decision to admit or exclude evidence is within the sound discretion of the circuit

court, and we will not reverse an evidentiary ruling absent a manifest abuse of discretion.

Hughes v. State, 2022 Ark. App. 453, at 7, 655 S.W.3d 312, 317. An abuse of discretion is a

high threshold that does not simply require error in the circuit court’s decision but requires

finding the circuit court acted improvidently, thoughtlessly, or without due consideration.

Id. Unless an appellant can demonstrate prejudice from an evidentiary ruling, we will not

reverse; prejudice is not presumed. Id.

Appellant contends he was prejudiced because having the teacher repeat MC’s

allegations bolsters MC’s testimony. However, we need not determine if the statement was

properly or improperly admitted because even the erroneous admission of hearsay evidence

is not reversible error if it is cumulative to other evidence admitted without objection.

Stephens v. State, 98 Ark. App. 196, 200, 254 S.W.3d 1, 4 (2007). Here, MC had already

testified that she disclosed having been raped to her teacher. The appellant’s hearsay

argument provides no basis for reversal.

Affirmed.

GLADWIN and THYER, JJ., agree.

Jones Law Firm, by: F. Parker Jones III, for appellant.

Tim Griffin, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.