Williams v. State

214 S.W.3d 829, 363 Ark. 395
Supreme Court of Arkansas·Decided October 6, 2005·No. CR 04-964·Published·Cited by 39 cases

Opinion

Donald L. Corbin, Justice.

Appellant Thomas Vernon Williams appeals the order of the Grant County Circuit Court convicting him of raping a twelve-year-old boy and sentencing him to life imprisonment in the Arkansas Department of Correction. Appellant raises five points for reversal: (1) the trial court erred in denying his motion for directed verdict; (2) the trial court erred in denying his motion to suppress his custodial statements; (3) the trial court abused its discretion in permitting the prosecutor to ask potential jurors about pedophiles during voir dire; (4) the trial court erred in refusing to give an instruction on the lesser offense of second-degree sexual assault; and (5) the trial court abused its discretion in allowing evidence of other crimes during sentencing. We have jurisdiction of this appeal pursuant to Ark. Sup. Ct. R. l-2(a)(2). We find no error and affirm.

I. Denial of Motion for Directed Verdict

Appellant argues that the trial court erred in denying his motion for a directed verdict. Although this is actually Appellant’s third point on appeal, we address it first, as an appellant’s right to be free from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. See Flowers v. State, 362 Ark. 193, 208 S.W.3d 113 (2005); Carter v. State, 360 Ark. 266, 200 S.W.3d 906 (2005). We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Hampton v. State, 357 Ark. 473, 183 S.W.3d 148 (2004); Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or the other and pass beyond mere suspicion or conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. Additionally, when reviewing a challenge to the sufficiency of the evidence, we consider all the evidence, including that which may have been inadmissible, in the light most favorable to the State. Hampton, 357 Ark. 473, 183 S.W.3d 148; George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004).

Appellant was convicted of rape by engaging in deviate sexual activity with another person who was less than fourteen years old, pursuant to Ark. Code Ann. § 5-14-103(a)(1)(C)(i) (Supp. 2005). “Deviate sexual activity” is defined, in pertinent part, as “[t]he penetration, however slight, of the anus or mouth of one person by the penis of another person[.]” See Ark. Code Ann. § 5-14-101(1)(A) (Supp. 2005). It is well settled in this state that the uncorroborated testimony of a rape victim is sufficient to support a conviction if the testimony satisfies the statutory elements of rape. See Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005); Walters v. State, 358 Ark. 439, 193 S.W.3d 257 (2004); Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002).

M.D., the victim in this case, testified that during June or July of2001, when he was twelve years old, Appellant babysat him and his younger brother. At one point, M.D. and Appellant walked to a neighbor’s house, while M.D.’s brother stayed home and played video games. The neighbor was not at home, so M.D. and Appellant decided to walk down to the creek behind M.D.’s mobile home. When they got there, M.D. started messing with the crawdads in the stream. Appellant then asked M.D. to perform oral sex on him. Specifically, he pulled down his pants and told M.D. “to go down on him.” M.D. told him no, but Appellant kept asking him to do it. Finally, Appellant told M.D. that if he did not perform oral sex on him, he would ruin the boy’s future in his home town. Appellant told him that he would tell his brother, Matt Williams, who was M.D.’s friend and also worked with M.D.’s stepmother, that M.D. had tried to get Appellant to perform oral sex on him. According to M.D., Appellant’s threat tore him up inside, because he did not want people in his town thinking that he was homosexual. M.D. eventually complied and performed oral sex on Appellant. Appellant then performed oral sex on M.D.

The next day, M.D. told his father and stepmother what had happened. His father wanted to call the police and report Appellant, but M.D. begged him not to, because he was afraid of what his friends would think of him. His father reluctantly agreed. Later on, M.D.’s father attempted to find Appellant to settle the matter his own way, but to no avail. He finally ran into Appellant about two years later, in March 2003. According to M.D.’s father, when he approached Appellant, Appellant started crying and told him that he was sorry about what had happened.

Investigator Charlie Winborn, of the Sheridan Police Department, testified that he took a videotaped statement from Appellant in December 2003. Part of that statement was played for the jury, wherein Winborn asked Appellant if he knew M.D., and Appellant said he did. When the officer asked how he knew M.D., Appellant answered that when M.D. was thirteen years old, he stayed the night at M.D.’s house and performed oral sex on the boy.

At the close of the State’s case-in-chief, defense counsel made a motion for directed verdict on the ground that there was insufficient evidence of rape. Particularly, defense counsel asserted that the only evidence came from the victim and that, given his age and his testimony that he was not absolutely positive that the crime occurred in the summer of 2001, as opposed to the following summer, his testimony was insufficient proof. This is the same argument offered on appeal.

We hold that the foregoing evidence is more than sufficient to support Appellant’s rape conviction. As stated above, the uncorroborated testimony of the victim constitutes substantial evidence if it establishes all of the elements necessary to prove the crime. Here, there were only two necessary elements: (1) that Appellant engaged in deviate sexual activity with (2) another person who was less than fourteen years of age at the time. M.D.’s testimony established that when he was twelve years old, he performed orál sex on Appellant after being threatened and Appellant, in turn, performed oral sex on him. As for the date of the crime, M.D. testified that he was “almost positive” that it occurred in the summer of 2001, when he was twelve. Contrary to Appellant’s argument, the fact that M.D. was not absolutely certain of the date does not in any way lessen the proof against him, as that is an issue of credibility. It is well settled that this court will not weigh the credibility of the witnesses, as that is a determination for the jury. See, e.g., Clem, 351 Ark. 112, 90 S.W.3d 428; Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). Moreover, we cannot ignore the fact that even if the crime had occurred the following summer, the proof is sufficient, as M.D. still would have been under the age of fourteen. Accordingly, we affirm the trial court’s denial of Appellant’s motion for directed verdict.

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Williams v. State, 214 S.W.3d 829, 363 Ark. 395 (Ark. 2005).

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