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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-16-1073
K.B. Opinion Delivered: September 27, 2017
APPELLANT
APPEAL FROM THE GARLAND
V. COUNTY CIRCUIT COURT
[NO. 26JV-16-119]
STATE OF ARKANSAS
APPELLEE HONORABLE TED C.
CAPEHEART, JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
K.B. appeals the Garland County Circuit Court’s June 20, 2016 adjudication order
finding him guilty of rape pursuant to Arkansas Code Annotated section 5-14-103 (Repl.
2013). K.B. and his codefendant, C.J.M., were tried together in a joint delinquency
proceeding. We affirmed the circuit court’s decision in C.J.M. v. State, 2017 Ark. App. 477,
handed down this same date, and we affirm the instant case as well.
On appeal, K.B. argues that (1) the circuit court erred by denying his motion to
dismiss because the State presented insufficient evidence to meet its burden of forcible
compulsion; (2) the circuit court should have granted his motion for new trial because
material evidence 1 was destroyed and suppressed; (3) the circuit court erred in denying the
motion to suppress K.B.’s statement in violation of Arkansas Code Annotated section 9-27-
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Brady v. Maryland, 373 U.S. 83 (1963).
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321 (Repl. 2015), and Miranda v. Arizona, 384 U.S. 436 (1986); and (4) the circuit court
abused its discretion in denying his motion for a new trial based on newly discovered
evidence.
K.B. first argues that the State did not present sufficient evidence to meet its burden
of forcible compulsion under Arkansas Code Annotated section 5-14-103. The statute
provides that a person commits rape if he or she engages in sexual intercourse or deviate
sexual activity with another person by forcible compulsion. See Ark. Code Ann. § 5-14-
103(a)(1). Although a delinquency adjudication is not a criminal conviction, the standard
of review is the same as it would be in a criminal case. E.g., A.D. v. State, 2015 Ark. App.
35, at 4, 453 S.W.3d 696, 698 (citing E.S. v. State, 2013 Ark. App. 378). A motion to
dismiss made during an adjudication proceeding is a challenge to the sufficiency of the State’s
evidence. E.g., Stewart v. State, 362 Ark. 400, 403, 208 S.W.3d 768, 770 (2005) (citing
Ark. R. Crim. P. 33.1).
When a defendant challenges an adjudication based on the sufficiency of the evidence
presented at the hearing, the evidence is reviewed in the light most favorable to the State.
Id. (citing Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003)). Only evidence that
supports the adjudication will be considered. Id. The test for determining the sufficiency of
the evidence is whether the adjudication is supported by substantial evidence, direct or
circumstantial. Id. Substantial evidence is evidence forceful enough to compel the fact-finder
to make a conclusion without resorting to speculation or conjecture. Id.
In rape cases, the requirement of substantial evidence is satisfied by the rape victim’s
testimony. See, e.g., Allen v. State, 2016 Ark. App. 537, at 3, 506 S.W.3d 278, 281 (citing
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Bishop v. State, 310 Ark. 479, 484, 839 S.W.2d 6, 9 (1992)). Our appellate courts have
repeatedly held that the uncorroborated testimony of a rape victim that shows penetration
is sufficient evidence for a conviction. Lamb v. State, 372 Ark. 277, 282, 275 S.W.3d 144,
148 (2008). Additionally, there is no requirement that there be scientific evidence of rape.
See, e.g., Sandrelli v. State, 2015 Ark. App. 127, at 3.
Here, the victim testified in detail about the events that took place on February 24,
2016, and how both K.B. and C.J.M. had forced her into the fieldhouse and how C.J.M.
had “touched her on the inside” with his finger, while K.B. restrained her by the waist and
grabbed her hands.
As noted above, a person commits the offense of rape if he or she engages in sexual
intercourse or deviate sexual activity with another person by forcible compulsion. Ark.
Code Ann. § 5-14-103(a)(1). “Deviate sexual activity” is defined as any act of sexual
gratification involving (A) the penetration, however slight, of the anus or mouth of a person
by the penis of another person; or (B) the penetration, however slight, of the labia majora
or anus of a person by any body member or foreign instrument manipulated by another
person. Ark. Code Ann. § 5-14-101(1).
“Forcible compulsion” is “physical force or a threat, express or implied, of death or
physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2). “Physical
force” is “any bodily impact, restraint or confinement, or the threat thereof.” Freeman v.
State, 331 Ark. 130, 132, 959 S.W.2d 400, 401 (1998). Force is present if “the act is against
the will of the party upon whom the act was committed.” Williams v. State, 2011 Ark. App.
675, at 6, 386 S.W.3d 609, 613.
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The elements of accomplice liability are defined by Arkansas Code Annotated section
5-2-403 which, in pertinent part, provides:
(a) A person is an accomplice of another person in the commission of an offense if,
with the purpose of promoting or facilitating the commission of an offense, the
person:
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing
the offense[.]
Although it is true that the mere presence at the scene of the crime does not make
one an accomplice as a matter of law, Pilcher v. State, 303 Ark. 335, 338–39, 796 S.W.2d
845, 847–48 (1990), each participant is criminally liable for his or her own conduct and
cannot disclaim responsibility because he or she did not personally take part in every act that
went into making up the crime as a whole. Bass v. State, 2013 Ark. App. 55, at 2. A
defendant is considered an accomplice if he or she takes some part in or performs some act
involved in the commission of the crime; relevant factors in determining the connection of
an accomplice to a crime are the presence of the accused in the proximity of a crime, the
opportunity to commit the crime, and an association with a person involved in a manner
suggestive of joint participation. Id.
In the instant case, the testimony presented at the hearing was substantial evidence
to show that while K.B. was forcibly restraining the victim, C.J.M. digitally raped her. The
victim’s own testimony, if believed by the trier of fact, in this case the circuit court, was
sufficient to establish K.B.’s guilt. Any inconsistencies in the victim’s account of what
happened were for the circuit court to resolve. See, e.g., Lowe v. State, 2016 Ark. App. 389,
at 6, 500 S.W.3d 176, 180. We hold there is no basis for reversal on this argument. This
court will not second-guess the fact-finder’s credibility determinations. Brown v. State, 2009
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Ark. App. 873. We will disregard testimony that the fact-finder has found to be credible
only if it is so inherently improbable, physically impossible, or so clearly unbelievable that
reasonable minds could not differ about it. Conte v. State, 2015 Ark. 220, 463 S.W.3d 686.
Such is not the case here.
K.B.’s second point is that the circuit court abused its discretion in denying his
motion for a new trial based on the allegation that the State destroyed certain text messages
contained in the victim’s cell phone that had voluntarily been turned over to the police and
suppressed a report that had been generated following a forensic-rape examination of the
victim. The decision to grant or deny a motion for new trial lies within the sound discretion
of the circuit court, whose action will be reversed only upon a clear showing of abuse of
that discretion or manifest prejudice to the defendant. Wright v. State, 2012 Ark. App. 389,
at 5. The burden is on the appellant to establish that a violation of pretrial discovery was
sufficient to undermine confidence in the outcome of the trial. Id. at 5–6. Absent a showing
of prejudice by the violation, this court will not reverse. Id. at 6.
K.B. claims that the State destroyed evidence from the victim’s cell phone. C.J.M.
makes the same argument, and as explained in that case, the circuit court offered a
continuance to obtain the missing text messages directly from the cell-phone provider, but
defense counsel chose not to seek that relief. That remedy, however, could have settled the
question whether deleted or undeleted cell-phone text messages were, in fact, exculpatory.
Characterizing the evidence as exculpatory does not make it so. It was appellant’s burden to
demonstrate prejudicial error, not merely to allege it. Vilayvanh v. State, 2012 Ark. App.
561, at 5 (citing Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986)).
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K.B. also maintains that the circuit court should have granted his motion for a new
trial because the State failed to serve both of his defense attorneys with copies of the rape-
examination report that was prepared in connection with the case. However, this argument
is meritless. Following the denial of K.B.’s motion to dismiss, his trial counsel, who notably
is also his appellate counsel, put on his case-in-chief. Among the witnesses who were called
was Marci Hermann, the sexual-assault nurse examiner employed by the Cooper-Anthony
Child Advocacy Center, who conducted a forensic-rape exam on the victim on February
26, 2016. Defense counsel examined Hermann regarding the findings contained in her
report, which reflected that she had not found any physical trauma in connection with the
alleged assault. Defense counsel moved to admit her rape report into evidence, and it was
admitted without objection by the State. The forensic-exam report was admitted as
“Defendant’s Exhibit 2” and is contained in the record, under seal.
The forensic examiner was vigorously questioned by K.B.’s counsel regarding her
report, which indicated there was no physical trauma. Both sides had a logical explanation
for the examiner’s conclusions and argued them before the circuit court. The fact that a rape
exam was performed was also discussed in conjunction with the other tests that were
conducted by the Arkansas State Crime Lab and in the forensic interview of the victim.
As such, K.B. has failed to demonstrate error or show the required prejudice. K.B.
has not shown that he was so prejudiced that there was a reasonable probability that the
outcome of the trial would have been different. We will not reverse absent a showing of
prejudice. Wright, supra.
K.B.’s third point is that the circuit court erred in denying the suppression of
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spontaneous statements he made during his arrest. This court conducts a de novo review
based on the totality of the circumstances, reviewing findings of historical facts for clear
error and determining whether those facts give rise to reasonable suspicion or probable
cause, giving due weight to inferences drawn by the trial court. K.L. v. State, 2010 Ark.
App. 644, at 5, 378 S.W.3d 222, 225 (citing Davis v. State, 351 Ark. 406, 94 S.W.3d 892
(2003)).
K.B. bases his suppression theory on a provision of the Arkansas Juvenile Code,
which provides what our supreme court has described as “the right against self-incrimination
for statements made to an intake officer or probation officer during the intake process.”
Munhall v. State, 337 Ark. 41, 44–45, 986 S.W.2d 863, 864–65 (1999) (citing Ark. Code
Ann. § 9-27-321 (Repl. 1998)). In his brief, K.B. argues that he made the statement to “an
intake officer.” However, it was Detective May, the arresting officer, who testified at trial,
and he made no mention of intake. A second Hot Springs police officer, who was not an
intake or probation officer, but rather a sergeant, testified at the hearing that he was also
present when K.B. made the statement to the effect of, “How can it be rape if our penises
weren’t out?”
In discussing the application of this statutory requirement, our supreme court said
the following with regard to law-enforcement contact with a juvenile:
Appellant’s first argument under this assignment of error is that the trial court
violated Ark. Code Ann. § 9-27-321 (Repl. 1991), which provides that a statement
made by the juvenile to the intake officer shall not be admissible in evidence against
the juvenile. There simply was no statement to an intake officer that was admitted
into evidence. An incriminating statement made to the trooper was admitted into
evidence, but that is not prohibited by the cited statute.
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Manatt v. State, 311 Ark. 17, 24, 842 S.W.2d 845, 849 (1992).
Moreover, the incriminating statement in Manatt was made in response to a question.
Here, no question was asked. K.B. made the statement of his own volition. K.B. has failed
to prove that the circuit court’s decision was clearly erroneous or that he was prejudiced.
K.B.’s final point claims that a new trial should be granted on the basis of newly
discovered evidence that was unavailable because of the imposed gag order. K.B. maintains
that he was unable to properly “investigate” the allegations raised by the prosecution in this
case as a result of the circuit court’s order regarding publicity.
In Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), our supreme court stated
that newly discovered evidence is the least favored ground for a new-trial motion. We will
reverse only if the lower court abused its discretion in denying the motion for a new trial.
Id. To prevail on a motion for a new trial based on newly discovered evidence, the movant
must show that the new evidence would have impacted the outcome of his or her case and
that he or she used due diligence in trying to discover the evidence. Wilcox v. State, 342
Ark. 388, 394, 39 S.W.3d 434, 438 (2000). Here, the circuit court’s order was entered to
protect the rights of the defendants with regard to pretrial publicity. Specifically, the order
did not include “any request for assistance in obtaining evidence[.]” On the record before
us, there is no proof to show that K.B. used due diligence in trying to discover any new
evidence.
K.B. also maintains that the new evidence would show that the victim perjured
herself on the stand by saying that she had never made any prior claims of sexual assault. But
our appellate courts have long held that newly discovered evidence that relates only to the
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impeachment of a witness does not afford grounds for a new trial. See Hayes v. State, 169
Ark. 883, 886, 277 S.W. 36, 37 (1925); Whittaker v. State, 173 Ark. 1172, 1176, 294 S.W.
397, 399 (1927) (“It is the general rule of practice in this court not to reverse the ruling of
the trial court in refusing a new trial on the ground of newly discovered evidence where
such evidence tends merely to impeach the credibility of witnesses.”); Taylor v. State, 299
Ark. 123, 126, 771 S.W.2d 742, 744 (1989) (“Evidence which only attacks the credibility
of other testimony is not grounds for a new trial. Williams v. State, 289 Ark. 69, 709 S.W.2d
80 (1986); Orsini v. State, 281 Ark. 348, 665 S.W.2d 245, cert. denied, 469 U.S. 847,
(1984).”).
Because K.B. has not shown due diligence and argues that the new evidence would
be used to impeach the victim’s testimony, we hold that the circuit court did not abuse its
discretion in denying the motion for a new trial. Accordingly, we affirm.
Affirmed.
VAUGHT and HIXSON, JJ., agree.
John W. Walker, P.A., by: Lawrence Anthony Walker and Amelia Theresa LaFont, for
appellant.
Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
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