William J. Boswell v. State of Arkansas

2021 Ark. App. 456

• Court: Court of Appeals of Arkansas
• Decided: November 17, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 456 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION II 2023.07.18 12:45:07 -05'00' No. CR-20-746 2023.003.20244 WILLIAM J. BOSWELL Opinion Delivered November 17, 2021 APPELLANT APPEAL FROM THE MILLER V. COUNTY CIRCUIT COURT [NO. 46CR-18-358] STATE OF ARKANSAS APPELLEE HONORABLE BRENT HALTOM, JUDGE

AFFIRMED

N. MARK KLAPPENBACH, Judge

Appellant William J. (“Jesse”) Boswell appeals his convictions for rape and sexual

indecency with a child, both of which concerned his niece, EU. 1 Appellant challenges the

sufficiency of the evidence supporting his convictions. We affirm.

A person commits rape if he or she engages in sexual intercourse or deviate sexual

activity with another person who is less than fourteen years of age. Ark. Code Ann. § 5-

14-103(a)(3)(A) (Repl. 2013). “Deviate sexual activity” includes any act of sexual

gratification involving the penetration, however slight, of the labia majora of a person by

any body member or foreign instrument manipulated by another person. Ark. Code Ann.

§ 5-14-101(1) (Repl. 2013). Pursuant to Arkansas Code Annotated section 5-14-

110(a)(2)(A) (Supp. 2021), a person commits the offense of sexual indecency with a child if,

1 Boswell was also convicted in the same jury trial of second-degree sexual assault of his great-niece, CR, but the two cases were not consolidated. The appeal related to CR is under submission with our court as a separate appeal, CR-20-745. with the purpose to arouse or gratify a sexual desire of himself or herself or a sexual desire

of another person, the person purposely exposes his or her sex organs to another person

who is less than fifteen years of age.

At the time of the alleged offenses, appellant would have been well into adulthood,

and EU would have been younger than fourteen. Appellant does not take issue with any

specific element of the offenses. Instead, appellant contends that the circuit court erred in

denying his motions for directed verdict because EU’s testimony about the alleged sexual

misconduct was improbable, unbelievable, and less likely to be true because EU did not

report anything to the authorities for so many years.

We treat a motion for directed verdict as a challenge to the sufficiency of the

evidence. Ralston v. State, 2019 Ark. App. 175, 573 S.W.3d 607. In reviewing a challenge

to the sufficiency of the evidence, we determine whether the verdict is supported by

substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful

enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id.

We view the evidence in the light most favorable to the verdict, and only evidence

supporting the verdict will be considered. Id. The credibility of witnesses is an issue for

the jury and not the court. Id. The trier of fact is free to believe all or part of any witness’s

testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.

In accordance with our standard of review, we recount evidence presented to the

jury. EU was thirty years old at the time of trial. She said that as a child she would visit

her Aunt Connie and Uncle Jesse (appellant) on weekends and in the summer. She recalled

several different residences where they lived, which helped her pinpoint her age when he

2 abused her. EU said that when she was about five years old, appellant would play with her

and carry her “piggyback.” During piggyback rides, appellant would touch EU under her

shorts, skin to skin, with his thumbs massaging her clitoris. She would have to adjust her

panties and shorts when he put her down.

When she was about seven years old, she accidentally walked in on appellant in the

bathroom as he sat on the toilet. Appellant told her that it was okay, to come over to him,

and to touch his penis, which she did. In another incident during that same visit, she and

some cousins were watching a movie, and appellant was lying right next to her. During the

movie, appellant put his hands down her pants, he massaged her clitoris, and he placed her

hand on his penis.

EU said that at the next house where appellant lived, appellant would come find her

when everyone was asleep, and he performed oral sex on her and sometimes used Vaseline

to digitally penetrate her. This happened many times over several years. He told her that

this was a secret, that she could not tell anyone, and that if she did, both of them would get

in trouble. EU said sometimes these incidents occurred when other family members were

in the same room, but they would be asleep when it happened. When EU was around ten

years old, appellant lowered his towel to expose his penis to her and later that night

penetrated her vagina with his fingers. By the time EU reached age eleven or twelve, she

quit staying overnight with her aunt and uncle so that the abuse would stop. When she was

sixteen, EU told a friend about the abuse, and the friend encouraged her to tell someone,

but she did not. EU did not want to break up her family.

3 Years later, appellant’s nine-year-old great niece, CR, revealed that appellant had

sexually abused her during a visit to appellant’s home when CR was around seven or eight

years old. CR said appellant had kissed her and touched her vagina with his fingers and with

a vibrator. When EU, who was then in her twenties, heard about CR, EU finally told her

sister and then law enforcement. During an interview with law enforcement, appellant

eventually admitted having touched EU on her vagina on top of her clothes. At trial,

though, appellant denied having ever sexually abused either EU or CR. Three other adult

nieces testified that appellant had been sexually inappropriate with them as children.

The circuit court denied appellant’s motion for directed verdict, and the jury found

appellant guilty of rape and sexual indecency with a child. On appeal, appellant concedes

that a victim’s uncorroborated testimony may constitute substantial evidence but argues that

EU’s testimony was improbable and unbelievable; that these crimes could not have

happened without family members knowing; and that appellant would not have undertaken

such high-risk activity. Appellant also questions why EU did not report these crimes for so

many years. Appellant does not present reversible error. Appellant’s sole challenge on

appeal attacks EU’s credibility. This is a challenge to the jury’s determination that the victim

was credible, which we will not disturb on appeal. Davis v. State, 2016 Ark. App. 274, 493

S.W.3d 339. The jury is free to believe all or a portion of any witness’s testimony. Blakes

v. State, 2021 Ark. App. 32, 615 S.W.3d 768. The circuit court did not err in denying

appellant’s motions for directed verdict on one count of rape and one count of sexual

indecency with a child.

4 Affirmed.

GRUBER and BROWN, JJ., agree.

Potts Law Office, by: Gary W. Potts, for appellant.

Leslie Rutledge, Att’y Gen., by: Michael L. Yarbrough, Ass’t Att’y Gen., for appellee.