Wade v. State

308 S.W.3d 178, 2009 Ark. App. 346, 2009 Ark. App. LEXIS 369
CourtCourt of Appeals of Arkansas
DecidedApril 29, 2009
DocketCA CR 08-782
StatusPublished
Cited by3 cases

This text of 308 S.W.3d 178 (Wade 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
Wade v. State, 308 S.W.3d 178, 2009 Ark. App. 346, 2009 Ark. App. LEXIS 369 (Ark. Ct. App. 2009).

Opinion

KAREN R. BAKER, Judge.

hOn March 18, 2008, a jury in Critten-den County convicted appellant, Detriawn Rondell Wade, of rape, a Class Y felony, and fourth-degree sexual assault. He was sentenced to twenty-six years’ imprisonment for the rape conviction and six years’ imprisonment for the assault conviction. He raises two points on appeal. He argues first that the trial court erred by denying his motion to dismiss for lack of a speedy trial. Second, he argues that the trial court erred in denying his motion for a directed verdict. Finding no error, we affirm.

On September 26, 2006, the State of Arkansas filed a felony information. An amended two-count information was filed on September 24, 2007. In the amended information, count one alleged that appellant engaged in sexual intercourse between November 2004 and June 2006 with his niece who was less than eighteen years of age. |2Count two of the information alleged that appellant, being twenty years of age or older, engaged in sexual activity on or between November 2004 and June 2006 with another person who was less than sixteen years of age and not his spouse.

At trial, the marriage certificate of appellant and Elizabeth Wade was introduced into evidence. Testimony showed that Elizabeth Wade was the victim’s aunt: the victim’s mother and Elizabeth were sisters. The victim, appellant’s niece, gave birth to a baby on October 29, 2005; she was fifteen years old at the time. DNA testing conducted in both 2006 and 2007 confirmed that appellant was the biological father of the child. The victim testified that between November 2004 and June 2005, she and appellant engaged in sexual intercourse “at least, if not more than 50 times. About three or four times a week.”

At the conclusion of the State’s case, appellant’s counsel made a motion for a directed verdict based on the fact that the rape statute did not include an uncle related only by marriage. The trial court denied the motion. Appellant’s counsel renewed the motion at the close of the evidence, and the motion was again denied. Ultimately, appellant was convicted of rape and sexual assault. This appeal followed.

Appellant contends that the trial court erred in denying his motion for a directed verdict. Our standard of review for a sufficiency challenge is well settled. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Gillard v. State, 372 Ark. 98, 270 S.W.3d 836 (2008) (citing Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007)). We have repeatedly held that in reviewing a challenge to the sufficiency of the | c,evidenee, we view the evidence in a 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. Id.

Appellant was convicted of rape pursuant to Arkansas Code Annotated section 5-14-103 (Repl.2006), which provides in pertinent part: “(a) A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person: ... (4)(A) Who is less than eighteen (18) years of age and the actor is the victim’s: (ii) Uncle....” Ark.Code Ann. § 5-14-103. Appellant asserts that the State failed to meet the statutory element that he was the victim’s uncle. His argument focuses on the fact that he was the victim’s uncle by affinity only, as evidenced by the marriage certificate, and not the victim’s uncle by consanguinity. Relying on this distinction, he asserts that there was insufficient evidence to support his conviction.

Appellant asserts that the word “uncle” in the rape statute refers only to an uncle who is related by blood to the victim. Because this court has not previously interpreted the word “uncle” in the context of the rape statute at issue here, we are called upon to do so now.

This court reviews issues of statutory interpretation de novo, as it is for this court to decide the meaning of a statute. See Stivers v. State, 354 Ark. 140, 118 S.W.3d 558 (2003). We construe criminal statutes strictly, resolving any doubts in favor of the defendant. See id. We also adhere to the basic rule of statutory construction, which 14is to give effect to the intent of the legislature. See id. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. See id. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. See id.

Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009). Moreover, as our supreme court stated in Heikkila v. State, 352 Ark. 87, 90, 98 S.W.3d 805, 807 (2003):

The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the Legislature. Williams, 347 Ark. at 742, 67 S.W.3d 548. We are without authority to declare an act to come within the criminal laws of this state by implication. Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984). It would violate the accepted canons of interpretation to declare an act to come within the criminal laws of the State merely by implication. Lewis v. State, 220 Ark. 259, 247 S.W.2d 195 (1952) (citing State v. Simmons, 117 Ark. 159, 174 S.W. 238 (1915)). Nothing is taken as intended which is not clearly expressed. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993); Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989).

Heikkila is instructive in this case. In Heikkila, the court interpreted the incest statute, Ark.Code Ann. § 5-26-202 (Repl. 1997), and determined that it applied to an uncle by marriage. Heikkila, 352 Ark. at 91, 98 S.W.3d at 807. In so finding, the court in Heikkila explained:

The incest statute prohibits sexual intercourse or deviate sexual activity with five named categories of persons, including “uncle, aunt, nephew or niece.” The word “niece” is not defined in the statute. However, the statute in its express terms creates criminal liability for sexual intercourse or deviate sexual activity with one’s niece. Webster’s defines a niece as a female descendant or relative, a daughter of one’s brother or sister, or a daughter of one’s brother-in-law or sister-in-law.

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Bluebook (online)
308 S.W.3d 178, 2009 Ark. App. 346, 2009 Ark. App. LEXIS 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wade-v-state-arkctapp-2009.