Cite as 2016 Ark. App. 596
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-16-379
RANDY DUCK Opinion Delivered: December 7, 2016
APPELLANT
APPEAL FROM THE UNION COUNTY
V. CIRCUIT COURT
[NO. 70CR-15-71]
STATE OF ARKANSAS
APPELLEE HONORABLE HAMILTON H.
SINGLETON, JUDGE
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant appeals from his conviction by jury of rape. His sole point on appeal is
that there was insufficient evidence to support his conviction. We affirm.
On February 24, 2015, appellee filed an information charging appellant with one
count of rape, a Class Y felony, pursuant to Arkansas Code Annotated section 5-14-103.
A jury trial in the matter was held on September 28 and 29, 2015. After the State rested,
appellant moved for a directed verdict, which the circuit court denied. Appellant called no
witnesses and raised his directed-verdict motion again, which was denied. The jury then
found appellant guilty as charged and sentenced him to fifteen years’ imprisonment in the
Arkansas Department of Correction. A sentencing order was entered on November 9,
2015, reflecting the verdict and sentence. A second amended sentencing order was entered
Cite as 2016 Ark. App. 596
on December 14, 2015, showing that appellant had been adjudicated guilty of an offense
requiring sexual-offender registration. This timely appeal followed. 1
We treat a motion for directed verdict as a challenge to the sufficiency of the
evidence. 2 In reviewing a challenge to the sufficiency of the evidence, this court
determines whether the verdict is supported by substantial evidence, direct or
circumstantial. 3 Substantial evidence is evidence forceful enough to compel a conclusion
one way or the other beyond suspicion or conjecture. 4 This court views the evidence in
the light most favorable to the verdict, and only evidence supporting the verdict will be
considered. 5 The credibility of witnesses is an issue for the jury and not the court. 6 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. 7
Appellant’s sole argument on appeal is that the circuit court erred in denying his
motion for directed verdict because there was insufficient evidence to support his rape
1
Appellant filed his notice of appeal on October 28, 2015, which was prior to the
November 9, 2015 date on which the circuit court entered its original sentencing order.
Arkansas Rule of Appellate Procedure–Criminal 2(b)(1) states that “[a] notice of appeal
filed after the trial court announces a decision but before the entry of the judgment or
order shall be treated as filed on the day after the judgment or order is entered.”
2
Williams v. State, 2011 Ark. App. 675, at 5, 386 S.W.3d 609, 613 (citing Sparacio
v. State, 2009 Ark. App. 350).
3
Id. at 5–6, 386 S.W.3d at 613.
4
Id. at 6, 386 S.W.3d at 613.
5
Id.
6
Id. (citing Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147).
7
Id.
2
Cite as 2016 Ark. App. 596
conviction. Appellant was convicted of rape pursuant to Arkansas Code Annotated section
5-4-103(a)(2)(B), which states that a person commits the crime of rape if he engages in
sexual intercourse or deviate sexual activity with another person who is incapable of
consent because she is mentally defective. 8 “Sexual intercourse” is defined as penetration,
however slight, of the labia majora by a penis. 9 “Deviate sexual activity” is defined as any
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[.]” 10 “Mentally defective” is defined as suffering from a mental disease or
defect that renders the person incapable of understanding the nature and consequences of a
sexual act or unaware a sexual act is occurring. 11
The pertinent evidence at trial was as follows. Appellant’s wife, and the victim’s
mother, testified that B.P., the victim, was diagnosed with “Cerebral Palsy with some
global brain damage” and had a “mental age of around 6.” On the night of January 19,
2015, she went to bed after she put B.P. to bed, but went to the den when she woke up
and found appellant was not in the bed with her. After not finding him in the den, she
found him in B.P.’s room. At first, “everything was fine” as appellant was clothed and
“just propped up beside” B.P. because she was “scared.” When she came back in,
8
(2015).
9
Ark. Code Ann. § 5-14-101(11) (2015).
10
Ark. Code Ann. § 5-14-101(1)(A) & (B).
11
Ark. Code Ann. § 5-14-101(4)(A)(i) & (ii).
3
Cite as 2016 Ark. App. 596
appellant was “beneath the covers on the other side of [B.P.].” B.P.’s panties and pajama
bottoms were on the floor. When she asked B.P. why her clothes were off, B.P. said “you
need to ask D that mamma and Randy said shut up [B.P.]” 12 She told B.P. to put her
clothes back on, and appellant left the room; she did not notice what he was wearing
when he left. However, when he went to take his second bath that evening, she noticed
he was wearing boxers only and had a “partial erection.” She went to check on B.P. who
was “fine and not scared” and who told her that appellant was “loving on [her].” She later
went back into the bathroom where she saw his boxers, noticed a “brownish stain at the
front area on the inside of the underwear where his penis would be located[,]” and bagged
them up. She didn’t know what to do because “[B.P.] was fine” and “[she] was
confused.”
Appellant’s wife testified that appellant told her that night that “[she was] going to
have to do something about that little girl (referring to B.P.), this is going to cause us
some problems” and the next day he said “this was going to cause us problems[.]” On the
evening of January 20, 2015, she noticed “the same colored stains on [B.P.’s] panties as
[appellant’s] underwear”; she bagged the panties up in a separate bag. On January 21,
2015, she called her pastor and told him what had happened. The pastor made a three-
way call to the Union County Sheriff’s Office. Though appellant’s wife was supposed to
go somewhere with appellant, she went to the police station. Detective Jim Sanders came
out to her home and retrieved both bagged items as well as B.P.’s bedsheet.
12
B.P. refers to appellant as “D.”
4
Cite as 2016 Ark. App. 596
Detective Jim Sanders, of the Union County Sheriff’s Office, confirmed in his
testimony that he went to appellant’s home with appellant’s wife and took the separately
bagged items—male underwear and female panties—as well as B.P.’s bed sheet. He also
testified to taking oral swabs from appellant and B.P. Phillip Rains, of the Arkansas State
Crime Lab, testified that although he did not find any semen or pubic hairs on any of the
tested items and did not know the source of any of the stains found on the items
submitted to the crime lab, he could confirm that the stains in appellant’s underwear and
in B.P.’s panties were both blood. 13 Kellie Dixon, forensic examiner with the Arkansas
State Crime Lab, testified that the blood stains in both appellant’s underwear and B.P.’s
panties contained a mixture of blood from appellant and B.P. Michael Scott Chandler,
doctor for B.P., testified that B.P. had a “medical history of some retardation, cerebral
palsy, a history of limited seizure activity.” He helped obtain a guardianship for B.P., and
his opinion was that she was “not capable of making her own medical decisions.”
Finally, B.P. testified to the following:
There was a time when I was naked with D. When I was naked with D my whole
thing was off. When I was naked momma told me to put my clothes back on. I put
my clothes back on. I was naked in bed. D was in my bed. He was under the
covers. When he was under the covers he laid on me. Nothing else happened. On
the girl doll you are holding he touched me there. I don’t know what it’s called.
On the boy doll you are holding that part touched me where I pointed on the girl
doll. It felt bad. I was in bed when he touched me there. He did not say anything
13
Rains testified that the crime lab typically does not “examine the male underwear
[for semen] because it would not be unusual to find semen on a male’s of reproductive
age.”
5
Cite as 2016 Ark. App. 596
to me. He didn’t tell me to tell my mom. I love D. Mom did not tell me to tell lies
about D. I am being honest. 14
She also testified “I said [appellant] touched me. He touched me with his hand. We
hugged each other. D kisses me occasionally.” Carla Thomas, a sexual-assault examiner at
Children’s Advocacy Center in Pine Bluff, testified that though B.P. did not disclose any
kind of sexual assault, she “found a notch at six o’clock in [B.P.’s] hymen” which was
“indicative of sexual assault.” She described the notch as a “healed trauma.” She stated that
the notch on B.P.’s hymen was “abnormal” and that that finding was consistent with
abuse. Though she could not identify what caused the injury, “[s]omething had to pass
through the labia and all the way to get into the vagina”; the injury is “consistent with
sexual intercourse[.]”
Circumstantial evidence may constitute substantial evidence. 15 To be substantial,
circumstantial evidence must exclude every reasonable hypothesis other than the accused’s
guilt. 16 However, the question of whether the circumstantial evidence excludes every
reasonable hypothesis consistent with innocence is for the jury to decide. 17 On review, the
appellate court determines whether the jury had to resort to speculation and conjecture to
14
The record shows that B.P. pointed to areas on the dolls to indicate what part of
appellant’s body touched her body and where her body was touched; however, no one
ever identified what areas she was pointing to for the record.
15
Sharp v. State, 2015 Ark. App. 718, at 3, 479 S.W.3d 568, 571 (citing Smith v.
State, 2010 Ark. App. 135, 374 S.W.3d 124).
16
Id.
17
Id.
6
Cite as 2016 Ark. App. 596
reach its verdict. 18 Criminal intent or purpose can seldom be proved by direct evidence
and must usually be inferred from the circumstances. 19 The finder of fact is not required
to lay aside its common sense in determining criminal intent. 20
It is the role of the jury to determine the facts of the case. Variances and
discrepancies in the proof go to the weight or credibility of the evidence and are matters
for the fact-finder to resolve. 21 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.22
Accordingly, when there is evidence of a defendant’s guilt, even if it is conflicting, it is for
the jury as fact-finder to resolve any conflicts and inconsistencies; it is not for the court to
resolve on a directed-verdict motion. 23
Looking at the evidence submitted at trial supporting the verdict and taking that
evidence in the light most favorable to the State as we must do, there was sufficient
evidence to support the jury’s finding that penetration occurred and to support the
verdict. We affirm.
Affirmed.
18
Id. (citing Fernandez v. State, 2010 Ark. 148, 362 S.W.3d 906).
19
Price v. State, 2016 Ark. App. 102, at 5–6, 483 S.W.3d 312, 315 (citing Davis v.
State, 2015 Ark. App. 234, 459 S.W.3d 821).
20
Id.
21
Thomas v. State, 2016 Ark. App. 195, at 4, 487 S.W.3d 415, 418 (citing Starling v.
State, 2016 Ark. 20, at 5, 480 S.W.3d 158; Marts v. State, 332 Ark. 628, 644, 968 S.W.2d
41, 49 (1998)).
22
Id. (citing Burley v. State, 348 Ark. 422, 430, 73 S.W.3d 600, 605 (2002)).
23
Id. (citing Marts, 332 Ark. at 644, 968 S.W.2d at 49).
7
Cite as 2016 Ark. App. 596
GLOVER and WHITEAKER, JJ., agree.
Craig Lambert and Gary McDonald, for appellant.
Leslie Rutledge, Att’y Gen., by: Kristen Green, Ass’t Att’y Gen., for appellee.
8