concurring.
I agree that this juvenile case can be affirmed, but I write separately to more fully distinguish the case of Martinez v. State, 2014 Ark. App. 182, 432 S.W.3d 689.
Appellant was charged with rape under Arkansas Code Annotated section 5-14-103(a)(1) (Supp.2011), which has two basic elements: (1) sexual intercourse or deviate sexual activity; (2) by forcible compulsion. Both sexual intercourse and deviate sexual activity require penetration. The sexual-assault statute that the majority has held to be applicable here requires 17(1) sexual contact; (2) by forcible compulsion. Both parties testified that anal penetration occurred. The only element that was at issue was forcible compulsion, an element present in both charges that appellant was on notice of from the beginning.
The trial court found the victim more credible on the issue of forcible compulsion, and we do not reverse on credibility findings. Valdez v. State, 33 Ark.App. 94, 97, 801 S.W.2d 659, 661 (1991). Because the element of penetration was agreed to be present, the trial court had sufficient evidence to find (at a minimum)1 that sexual contact occurred, which it did. The trial court then reduced the charge on its own motion.
This case is readily distinguishable from Martinez, which was recently decided by this court. Martinez was charged with rape under Arkansas Code Annotated section 5-14-103(a)(3)(A) (Supp.2011), which provides that a person commits rape if he engages in “sexual intercourse” or “deviate sexual activity” with another person who is less than fourteen years of age. By definition both “sexual intercourse” or “deviate sexual activity” require penetration. Ark. Code Ann. § 5-14-101 (Supp.2011).
Martinez was being tried to a jury, and the trial court allowed the State to amend the charge to sexual assault in the second degree after it had put on all of its proof but had failed to prove the requisite element of penetration. The sexual-assault statute to which the court reduced the charge required only sexual contact (minus penetration) and the victim’s being under the age of fourteen.
IsThe common element of the two charges was the age of the victim, which was not in dispute. The only issue in dispute was whether penetration had occurred. We held that the court erred in reducing the charge to be submitted to the jury after the State had rested and not proved the essential element of penetration that differentiated the two charges. Martinez was only on notice to defend against a charge that included the element of penetration. Therefore, due process required reversal.
In the instant case, the common element of forcible compulsion was at issue under either charge, and appellant was on notice to defend on that element — and did in fact do so. Therefore, there was no due-process violation.
. In my opinion, the record also contains sufficient evidence to prove the necessary elements of the greater offense: intercourse or deviate sexual activity and forcible compulsion.