Cite as 2023 Ark. 68
SUPREME COURT OF ARKANSAS
No. CR-22-706
Opinion Delivered: April 27, 2023
JAMES MCCAULEY APPEAL FROM THE HOT SPRING
APPELLANT COUNTY CIRCUIT COURT
[NO. 30CR-19-394]
V.
HONORABLE STEPHEN L.
SHIRRON, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED.
JOHN DAN KEMP, Chief Justice
Appellant James McCauley appeals a Hot Spring County Circuit Court order
convicting him of the rape of his son, a minor child (“MC”), and sentencing him as a
habitual offender to life imprisonment. For reversal, McCauley argues that substantial
evidence does not support his rape conviction and that the circuit court abused its discretion
by denying his motion for continuance. We affirm.
I. Facts
MC, who was eleven and in the fourth grade at the time of trial, testified that
McCauley and a woman, whom MC knew as “Binky,” raped him when he was in the
second grade. MC recalled that one day after school, he walked from his grandmother’s
house to his Uncle Zach’s house. McCauley, who lived at Zach’s house, grabbed MC’s arm
and pulled him into his bedroom. McCauley locked the door and barricaded it with a dresser
but opened the door when Binky arrived. McCauley then again locked the door and put
the dresser in front of it. MC tried unsuccessfully to get out of the room. According to MC,
McCauley put him on the bed while McCauley and Binky poked their arms with needles.
McCauley then held down MC’s arms, and they removed MC’s clothes. McCauley got on
top of MC and “put his thing in [him].” When McCauley stopped, he threatened to hurt
MC if he told anyone. McCauley then put Binky on top of MC and “made [him] put [his]
thing in her.” She got off of him after he “yell[ed] and push[ed] and kick[ed.]” MC testified
that these events happened three more times that same day—twice at Zach’s house and once
at Binky’s house. When asked on cross-examination how many times that day that
McCauley “put his thing in [MC’s] butt[,]” MC responded that it happened four times.
The prosecutor presented MC with several diagrams. MC was asked to circle the
body part to which he referred when he said McCauley’s “thing,” and he circled the penis.
Another diagram represented MC. He was asked to circle the body part where McCauley
put his “thing,” and he circled the buttocks. A third diagram was labeled “Binky.” When
asked what he meant when he said, “in her,” MC circled the vagina. The three diagrams
were introduced into evidence as State’s exhibits 1–3.
Stephanie Hrabal, executive director of the Percy and Donna Malone Child Safety
Center in Arkadelphia, testified that in 2019, she was the Center’s primary forensic
interviewer. On September 16, 2019, she interviewed MC, who was eight years old at the
time, and he disclosed what she considered to be sexual abuse.
The jury convicted McCauley of rape, and he was sentenced as a habitual offender
to life imprisonment. He filed a timely notice of appeal, and this appeal followed.
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II. Points on Appeal
A. Sufficiency of the Evidence
McCauley argues that the circuit court erred in denying his directed-verdict motion
on the rape charge. He contends that MC’s testimony was insufficient to support
McCauley’s conviction because MC testified that he did not think the trial should have
happened, could not remember when the rape happened, and could not remember details
without being prompted. McCauley contends that MC’s testimony should have been
discounted.
We treat a motion for directed verdict as a challenge to the sufficiency of the
evidence. McClendon v. State, 2019 Ark. 88, at 3, 570 S.W.3d 450, 452. In reviewing this
challenge, we view the evidence in a light most favorable to the State and consider only the
evidence that supports the conviction. Id., 570 S.W.3d at 452. We will affirm the verdict if
substantial evidence supports it. Id., 570 S.W.3d at 452. Substantial evidence is evidence of
sufficient force and character that it will, with reasonable certainty, compel a conclusion one
way or the other without resorting to speculation or conjecture. Id., 570 S.W.3d at 452. It
is the function of the jury, and not the reviewing court, to evaluate the credibility of
witnesses and to resolve any inconsistencies in the evidence. Breeden v. State, 2013 Ark. 145,
at 5, 427 S.W.3d 5, 8–9.
To convict McCauley of rape, the State had to prove he engaged in sexual
intercourse or deviate sexual activity with MC and that MC was less than fourteen years old
at the time of the rape. Ark. Code Ann. § 5-14-103(a)(3)(A) (Supp. 2017). “Deviate sexual
activity” includes “any act of sexual gratification involving [t]he penetration, however slight,
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of the anus or mouth of a person by the penis of another person[.]” Ark. Code Ann. § 5-
14-101(1)(A) (Supp. 2017). A rape victim’s uncorroborated testimony describing
penetration may constitute substantial evidence to sustain a conviction of rape, even when
the victim is a child. E.g., Hartley v. State, 2022 Ark. 197, at 5, 654 S.W.3d 802, 806. The
rape victim’s testimony need not be corroborated, and scientific evidence is not
required. Id., 654 S.W.3d at 806.
Under these standards, MC’s testimony constituted substantial evidence to support
McCauley’s rape conviction. MC testified that one afternoon when he was in second grade,
he went to the house where McCauley lived. He stated that McCauley got on top of him
and “put his thing in [him].” MC indicated on a diagram that McCauley’s “thing” was his
penis. On another diagram, MC was asked to show where McCauley put his “thing,” and
MC circled the buttocks. MC testified that this same thing happened four times that day.
Here, MC’s testimony alone is sufficient to show that McCauley engaged in deviate
sexual activity with MC and that MC was under the age of fourteen. See, e.g., Hartley, 2022
Ark. 197, at 5, 654 S.W.3d at 806. McCauley’s argument on appeal amounts to a challenge
to MC’s credibility. However, it is the function of the jury, and not this court on appeal, to
evaluate the credibility of witnesses and to resolve any inconsistencies in the evidence. See
Breeden, 2013 Ark. 145, at 5, 427 S.W.3d at 8–9. Thus, we hold that McCauley’s rape
conviction is supported by substantial evidence and, accordingly, we affirm on this point.
B. Denial of Motion for Continuance
Next, McCauley argues that the circuit court abused its discretion by denying his
morning-of-trial continuance motion. He asserts that he issued subpoenas for six defense
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witnesses and, on April 1, took them to the sheriff’s department to be served. As of the April
7 trial date, no witnesses had been served. He claims that he was prevented from putting
forth a defense because, being indigent, he had no funds to acquire service on his own. He
therefore had to rely on the county to serve subpoenas, which it did not timely do.
The decision to deny a continuance is within the sound discretion of the circuit court
and will not be disturbed absent a clear abuse of that discretion. Hendrix v. State, 2019 Ark.
351, at 3, 588 S.W.3d 17, 19. An appellant must establish that the circuit court abused its
discretion and show that the decision resulted in prejudice amounting to a denial of justice.
Id., 588 S.W.3d at 19. Prejudice is not presumed in this context. Id., 588 S.W.3d at 19.
A continuance should be granted only upon a showing of good cause. Ark. R. Crim.
P. 27.3. In considering a motion for continuance, the court should “tak[e] into account not
only the request or consent of the prosecuting attorney or defense counsel, but also the
public interest in prompt disposition of the case.” Ark. R. Crim. P. 27.3; Hendrix, 2019
Ark. 351, at 4, 588 S.W.3d at 19. The court should also consider (1) the diligence of the
movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the
attendance of the witness in the event of a postponement; and (4) the filing of an affidavit,
stating not only what facts the witness would prove but also that the movant believes them
to be true. Id., 588 S.W.3d at 20. A lack of diligence alone is a sufficient basis to deny a
motion for continuance. Id., 588 S.W.3d at 19–20.
Here, on the morning of trial, McCauley’s trial counsel moved for a continuance:
Your Honor, my office issued and delivered subpoenas to the Hot Spring
County Sheriff’s Office on April the 1st and in checking on that to see if my
subpoenas have been served, my final check was this morning by my secretary, and
as of 10:30 this morning, zero (0) of the six (6) subpoenas that I have issued have a
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record of service. . . . As a result of our subpoenas not being served, that prejudices
our client and I would ask for a continuance based upon the fact that we are unable
to bring our witnesses.
The circuit court asked McCauley’s trial counsel if he had spoken with the witnesses, and
counsel responded, “Not recently, no.” He explained that he did not have phone numbers
for most of them but did have mailing addresses. The circuit court asked what trial counsel
anticipated their testimony to be, and he stated, “To be honest, I’m not sure.” Finally, the
circuit court asked how McCauley was going to be prejudiced by not having those witnesses
attend trial when counsel did not know what they were going to say. Trial counsel
responded, “[McCauley] has the right to subpoena witnesses . . . and he’s being deprived of
that particular right at this time.” The circuit court denied McCauley’s motion for
continuance. It found that McCauley had failed to act diligently in attempting to procure
the witnesses and failed to show prejudice by their absence because their anticipated
testimony was unknown.
We agree with the circuit court’s denial of McCauley’s continuance motion for lack
of diligence and failure to show prejudice. Again, we have stated that a lack of diligence
alone is a sufficient basis to deny a motion for continuance. Hendrix, 2019 Ark. 351, at 4,
588 S.W.3d at 20. McCauley was arrested on November 6, 2019, and charged with the
rape of MC on April 1, 2020. But McCauley’s trial counsel admittedly made no attempt to
have subpoenas served on the witnesses until six days before McCauley’s April 7, 2022 jury
trial, and he waited until the morning of trial to move for a continuance. Further, McCauley
has failed to show prejudice necessary to prevail on this point, given that on the morning of
trial, his trial counsel had no phone numbers for the witnesses, had not spoken to them
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recently, and did not know what their anticipated testimony would be. See id., 588 S.W.3d
at 20.
In support of his argument, McCauley cites two statutes—Arkansas Code Annotated
sections 16-43-208 (Repl. 1999) and 17-90-107 (Repl. 2018). First, section 16-43-208
addresses only the issuance of subpoenas and the number of witnesses allowed. “The statute
is silent, however, about the duty of the sheriff to serve those subpoenas once they have
been issued.” MacKintrush v. State, 334 Ark. 390, 404, 978 S.W.2d 293, 299 (1998). Second,
section 17-90-107 addresses service of subpoenas issued by the State Board of Optometry.
Neither statute establishes that the circuit court abused its discretion in denying McCauley’s
continuance motion in this case. Accordingly, we hold that the circuit court did not abuse
its discretion, and we affirm.
III. Rule 4-3(a)
Because McCauley received a life sentence, this court, in compliance with Arkansas
Supreme Court Rule 4-3(a), has examined the record for all objections, motions, and
requests made by either party that were decided adversely to McCauley. No prejudicial
error has been found.
Affirmed.
Gregory Crain, for appellant.
Tim Griffin, Att’y Gen., by: Walker K. Hawkins, Ass’t Att’y Gen., for appellee.
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James McCauley v. State of Arkansas
Combined Opinion