Opinion
No. CACR12-628
02-27-2013
JERRY DEWAYNE SAVAGE APPELLANT v. STATE OF ARKANSAS APPELLEE
Joseph P. Mazzanti, III, for appellant. Dustin McDaniel, Att'y Gen., by:
APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT [NO. CR-11-40-4]
HONORABLE DON GLOVER, JUDGE
AFFIRMED
BILL H. WALMSLEY , Judge
Appellant Jerry Dewayne Savage was convicted of three counts of sexual assault in the second degree. For his sole point on appeal, he argues that there was insufficient evidence to support his convictions. We affirm.
Appellant was convicted under Arkansas Code Annotated section 5-14-125(a)(3) (Supp. 2001), which provided that a person commits sexual assault in the second degree if the person, being eighteen years of age or older, engages in sexual contact with the sex organs of another person who is less than fourteen years of age and not the person's spouse. The amended information alleged that the assault against K.S. occurred between 2001 and 2002 and that the assaults against S.S. and R.B. occurred between 2002 and 2003. The jury trial was held on January 4, 2012. K.S. was eighteen years old at trial and testified that appellant assaulted her when she was seven or eight years old. Seventeen-year-old S.S. testified that appellant assaulted her when she was between the ages of six and eight. R.B. was fifteen years old and testified that she was assaulted when she was either five or six years old.
Appellant argues that there was insufficient evidence of his guilt because the State's case was based entirely upon the uncertain memories of three teenage girls who struggled to remember basic information pertaining to the alleged sexual acts that had occurred more than ten years before. He notes that K.S. admitted that a statement she had given to the police was not accurate because she could not now recall witnessing the event involving another child or even making the statement. He also notes that none of the victims told an adult about the alleged assaults until January 2011.
We hold that appellant's argument was not preserved for appeal. A motion for directed verdict shall state the specific grounds therefor. Ark. R. Crim. P. 33.1(a). Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008). At trial, appellant argued that there was no evidence that the alleged assaults occurred within the time frames set out in the amended information. He did not make any arguments concerning the witnesses' memories or credibility. Thus, he has waived these arguments on appeal.
Even if appellant's arguments were preserved, we hold that substantial evidence supports his convictions. A victim's uncorroborated testimony may constitute substantial evidence to support a guilty verdict for second-degree sexual assault. Colburn v. State, 2010 Ark. App. 587. A jury is free to believe all, or part, of a victim's testimony; a witness's credibility is left to the jury's discretion. Id. Where the jury as trier of fact has given credence to inconsistent testimony, the appellate court will not reverse unless the testimony is so inherently improbable, physically impossible, or clearly unbelievable that reasonable minds could not differ thereon. Id. Appellant has not shown that such circumstances exist. Even assuming that there were inconsistencies in the victims' testimony, all three victims testified about specific incidents constituting sexual assault that violated Arkansas Code Annotated section 5-14-125(a)(3).
Affirmed.
GLOVER and BROWN, JJ., agree.
Joseph P. Mazzanti, III, for appellant.
Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.