Opinion
No. CA12-254
11-07-2012
D.D. APPELLANT v. STATE OF ARKANSAS APPELLEE
Norris Legal Drafting, by: Lisa-Marie Norris, for appellant. Dustin McDaniel, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
[J-2011-624-D]
HONORABLE MARK FRYAUF,
JUDGE
AFFIRMED
DAVID M. GLOVER , Judge
D.D. was charged as a juvenile in an amended delinquency petition with three counts of sexual assault in the second degree, all Class B felonies. In a bench trial held on December 22, 2011, he was adjudicated delinquent on all three counts. On appeal, he argues that the trial court erred in denying his motions for directed verdict because the victims' testimony was not credible; the testimony was inherently improbable and/or physically impossible; and there was no additional evidence supporting the victims' testimony. We affirm the delinquency adjudications.
The adjudication order contains a scrivener's error. D.D. was originally charged with two Class B felony counts of sexual assault in the second degree and one Class D felony count of sexual assault in the second degree; the charges were later amended to three Class B felony counts of sexual assault in the second degree. However, the adjudication order only reflects the original charges and makes no mention of the amended charges.
There are three victims in this case—C.M., K.F., and S.G., all three of whom attended Vista Health Therapeutic Day Treatment (school) with D.D. C.M., who was eighteen at the time of trial, testified that she attended school with D.D. in the summer and fall of 2011, and although she was not in the same class as D.D., she knew him. She said that she and D.D. rode the school van home during the summer and that while she never sat by D.D., she frequently sat in front of him in the afternoons on the way home. She testified that D.D. made her uncomfortable when she sat in front of him because he sucked on her neck, touched her breasts and vagina, and showed her his penis. She said that he touched her vagina and breasts under her clothes, and that he made her touch his penis through his clothing. C.M. said that when D.D. touched her, he used his right hand and reached around the seat, and that it happened on probably five different occasions. She said that the van driver and the school aide did not see anything because they were not paying attention, and that the person with whom she was sitting did not see anything because he was asleep. C.M. stated that she told her mother and her therapist at school about the incidents, but that she had to wait to tell her therapist until the therapist returned from vacation.
K.F., who was fifteen at the time of trial, testified that she and D.D. attended school in the summer and fall of 2011, but they first met in the hospital about a year earlier and began dating. She said that the reason they broke up was because D.D. ran his hands up and down her leg, which made her uncomfortable because she had been raped by her biological father, and because of her history with her father, she was "totally afraid" of any male touching her. She said that she and D.D. tried to be friends, but that he was "too comfortable" with her and kept grabbing her buttocks and her breast area. K.F. said that D.D. never touched her crotch area, but that he would run his hands up and down her legs; that the touching was strictly over the clothes; that it occurred both at school and at her house; and that when it occurred at school, it was under the table where no one could see. She also recounted one time in her backyard where D.D. attempted to kiss her, but she said that she told him no and to go away and that he left. K.F. said that she did not tell anyone at first, but that she eventually told one of her counselors. She was surprised that D.D. claimed that she touched him as well and that the touches were consensual, and she denied that she touched D.D., that she consensually allowed D.D. to touch her, or that she was falsely accusing D.D.
S.G., who was sixteen at the time of trial, testified that she had known D.D. for six or seven years; that she had attended a previous school with him as well as having attended the current school with him in the summer of 2011; and that D.D. had formerly been her boyfriend. She said that they remained friends after they broke up, but that since they had broken up, D.D. had touched her inappropriately. S.G. related that on one occasion while she and D.D. were alone at an abandoned house, D.D. touched her butt and her breasts. S.G. said that D.D. wanted to have sex, but when she told him no, he kept forcing the issue and held her so that she could not leave or walk away. She said that D.D. kept touching her breasts and buttocks over her clothes; that it made her feel "very weirded out" and she told him to "please stop"; that he did not say anything and continued to touch her; and that she pushed him off, ran downstairs, and left. She said that she began to walk home but that D.D. gave her his bike to ride as an apology, and she wrecked the bike on the way home.
Detective Keith Eoff of the Rogers Police Department testified that he investigated the allegations and interviewed all three victims and D.D. He testified that no one on the van saw anything happen between C.M. and D.D.; that one of the teachers at school told him that K.F. and D.D. had previously dated; and that S.G.'s mother corroborated what S.G. had said about the bike wreck. Eoff said that when he interviewed D.D., he denied that anything had occurred with C.M. While he admitted that he had rubbed K.F.'s leg in class and had kissed her in her backyard, D.D. said that it was all consensual. Likewise, while D.D. corroborated S.G.'s story, he maintained that it was all consensual. D.D. denied doing anything illegal or inappropriate, and he postulated that C.M. was lying because she had asked him out and he had told her no.
D.D.'s attorney moved for a directed verdict, arguing that the stories told by the victims were not credible. The trial court denied the motion.
D.D. called witnesses in his defense. Ray Zamen, one of the van drivers/aides for the school, testified that seats were not assigned on the van; that both C.M. and D.D. rode the van; that he did not remember any problems between C.M. and D.D.; and that he never saw any interaction out of the ordinary between the two of them. Zamen said that school policy did not allow males and females to sit in the same row.
Freddie Hall (also known as Mr. Wayne) testified that he was a teacher at the school, that D.D. and K.F. had been his students, and that C.M. and S.G. were in the class next to him. Hall said that he was aware that D.D. and K.F. had a previous relationship; however, he denied that any of the girls had talked to him about anything that happened to them at school. Hall said that D.D. had never offended any of the females in his classroom, and most of the time D.D. was asleep in the back of the room. Hall testified that K.F. had said that she wanted to stay away from D.D.
D.D., who was sixteen at the time of trial, testified that nothing happened between him and C.M. on the van; that C.M. had asked him out and he told her that he was not interested; and that her testimony was not true. With regard to K.F., D.D. admitted that they had met in the hospital; that he had been to her house once or twice; that he had tried to kiss her at her house in the backyard on one occasion; that she let him kiss her at first but then pushed him away; and that she asked him to leave and he did. D.D. admitted that he had rubbed K.F.'s leg and inner thigh at school during class, but he said that he did it because she told him that she liked it and that she never told him to stop. He denied touching K.F.'s breasts. D.D. said that he and S.G. had been friends for six or seven years; that they had previously dated; that they were not dating at the time they went to the abandoned house; that he began flirting with her and rubbing her sides; that she leaned back on him and he kissed her neck; that it seemed to him that she enjoyed it; and that she did not tell him to stop. He said that they left the abandoned house and he loaned her his bike to ride home. D.D. said that they did not really "make out" and that he did not do anything to S.G. that she did not want him to do; that if any of the girls indicated that he was doing something they did not want to do, he stopped immediately; and that he had no idea why the girls were saying those things.
D.D.'s attorney renewed his motion for directed verdict at the close of all the evidence, arguing that the assaults were simply not possible. This motion was again denied. The trial court stated that the case boiled down to credibility of the witnesses; that with K.F. and S.G., it boiled down to the girls saying no to the touching of their breasts and buttocks over the clothes and D.D. not acknowledging that and respecting those boundaries, requiring the girls to break away from him and leave. The trial court also found C.M.'s testimony to be credible but found the incidents with C.M. more troubling because of its belief that C.M. was emotionally diminished; that D.D.'s conduct went beyond a matter of just saying no; that it was unsure that C.M. was capable of responding under the circumstances; and that D.D. took advantage of the circumstances and touched C.M.'s breasts, buttocks, and vaginal area by forcible compulsion. The trial court then found D.D. delinquent on all three counts.
D.D. now argues that the trial court erred when it denied his motions for directed verdict. The standard of review for sufficiency of the evidence in a juvenile proceeding is the same as in a criminal case. R.W. v. State, 2010 Ark. App. 220. This court treats the denial of motions for directed verdict as a challenge to the sufficiency of the evidence. Hull v. State, 96 Ark. App. 280, 241 S.W.3d 302 (2006). In reviewing a challenge to the sufficiency of the evidence, the appellate courts view the evidence in the light most favorable to the State and consider only that evidence that supports the verdict. Rohrbach v. State, 374 Ark. 271, 287 S.W.3d 590 (2008). If substantial evidence exists to support a conviction, it will be affirmed; substantial evidence is evidence that is of sufficient force and character that it will, with reasonably certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. In determining whether there is substantial evidence, only evidence tending to support the verdict is considered, and the appellate courts do not weigh the evidence presented at trial, as that is the finder of fact's responsibility. R.W., supra.
A person commits sexual assault in the second degree if the person engages in sexual contact with another person by forcible compulsion. Ark. Code Ann. § 5-14-125(a)(1) (Supp. 2011). "Sexual contact" is defined as "any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female." Ark. Code Ann. § 5-14-101(10) (Supp. 2011).
Citing Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008), D.D. acknowledges that the uncorroborated testimony of a victim of a sexual offense can constitute substantial evidence of guilt. However, he attacks the credibility of the victims' testimony and argues that all of the victims' testimony should be disregarded because it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. See Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007). Specifically, D.D. argues that he could not have done the things C.M. alleged that he did to her on the van without someone noticing; that it was improbable that C.M. would repeatedly continue to choose the seat in front of him after the first incident; that C.M. never asked him to stop; that C.M. waited a week to report the incident; and that there was no indication that such an incident had ever taken place. With regard to K.F., D.D. argues that only the instances of him touching her buttocks and breasts are at issue, not his touching of her leg; that there was no evidence that K.F. had ever asked D.D. to stop when he grabbed her buttocks and breasts; and that K.F.'s testimony was inherently improbable. Finally, with regard to S.G., D.D. argues that they knowingly went to an abandoned house to spend time together, and S.G. was easily able to break off contact and leave; therefore, S.G.'s version of the incident is inherently improbable.
D.D. is incorrect. None of the victims' versions of the events are inherently improbable or physically impossible. The trial court found that in the cases of K.F. and S.G., the girls told D.D. no, but D.D. would not take no for an answer. With C.M., the trial court found that D.D.'s conduct went beyond just a matter of saying no—he took advantage of the circumstance of C.M.'s emotionally diminished state. Furthermore, the trial court specifically found that the victims' testimony was credible in every instance. Because the trial court found the victims' testimony to be credible, and because the uncorroborated testimony of a victim of a sexual offense constitutes sufficient evidence to support a finding of guilt, the trial court's delinquency adjudications are affirmed.
Affirmed.
GLADWIN and GRUBER, JJ., agree.
Norris Legal Drafting, by: Lisa-Marie Norris, for appellant.
Dustin McDaniel, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.