Opinion
No. CR-19-462
01-15-2020
Timothy J. WORRALL, Appellant v. STATE of Arkansas, Appellee
King Law Group PLLC, Fort Smith, by: W. Whitfield Hyman, for appellant. One brief only.
King Law Group PLLC, Fort Smith, by: W. Whitfield Hyman, for appellant.
One brief only.
RITA W. GRUBER, Chief Judge Appellant Timothy Worrall was convicted by a Benton County Circuit Court jury of three counts of second-degree sexual assault, each involving a different victim. He was sentenced to a total of twenty-nine years' imprisonment for the three convictions. Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals, Worrall's attorney has filed a motion to withdraw as counsel on the ground that an appeal would be wholly without merit. The motion is accompanied by an abstract, brief, and addendum purporting to list all adverse rulings and to explain why each adverse ruling is not a meritorious ground for reversal. There are no pro se points for reversal. We affirm the conviction and grant counsel's motion to withdraw.
Shortly after the motion and brief were filed, counsel learned of appellant's death and filed a petition suggesting his death with this court and asking that we take judicial notice of appellant's death on September 23, 2019, which we noted by order entered October 16, 2019. Rule 1(c) of the Arkansas Rules of Appellate Procedure–Criminal provides:
(c) Death of Defendant. Upon the death of a defendant, the appeal shall not abate. The appeal shall continue on the relation of a representative party as provided in Ark. R. Civ. P. 25(a).
See Fiveash v. State , 2015 Ark. App. 187, at 1, 458 S.W.3d 774, 775 (stating, "Arkansas Rule of Appellate Procedure–Criminal 1(c) (2014) provides that the death of a defendant does not abate an appeal. The rule further provides that Arkansas Rule of Civil Procedure 25(a) (2014) controls how the appeal should continue. Because Rule 25(a)(1) has not been followed, as no suggestion of death has been filed of record and no motion for substitution of parties has been made as a result thereof, this court proceeds with the appeal as if uninformed of appellant's death.") We therefore proceed with this appeal.
Counsel has identified three adverse rulings, including the denial of appellant's motion for directed verdict. At the jury trial, each of the three victims testified. JK testified that she was a resident of Touchstone Village and used the Ozark Regional Transit (ORT) bus, which was occasionally driven by appellant. She stated that on one occasion in February 2017, appellant touched her breast when he talked to her. JK explained, "He said he like playing with them and how soft they were. And he said, do not tell anybody because he didn't want to get in trouble." JK reported the incident to Rebecca Howard, the leasing consultant and assistant manager for Touchstone Village. She told Ms. Howard that she was not okay with appellant's touching her breast and that he did not have permission. Ms. Howard testified that JK came to her and was "very upset." She stated that the police were called and that the fire department responded because JK was having heart palpitations. She explained that JK lives at Touchstone Village because of her medical conditions.
Touchstone Village is an apartment complex in Bentonville for elderly or disabled individuals.
--------
DB, who also lived at Touchstone Village, testified that she is in a wheelchair and depends on others to transport her to appointments. In March 2016, she used R & L Transportation to go to a doctor's appointment. Appellant was the driver. DB testified that when appellant got her on the lift ramp, his hands all of a sudden came from behind her and he put them on her chest. She stated that she told him to stop and that he responded, "You want it more. You want it more." She said she "got him using an elbow punch." She had to take the ride home but explained that she had appellant take her to the office rather than her home because she was scared. Ms. Howard testified that when DB returned that day she was upset, her face was red, and she was crying. Ms. Howard said that DB told her that a "man just groped her." Ms. Howard contacted the police. After the incident, DB contacted the logistic care number and asked that R & L Transportation not be allowed to transport her again, but she was hung up on. She stated that when R & L transported her again she carried a steak knife in her purse because she was in a "state of panic."
AT testified that when she lived at Better Home Living in Bentonville, she depended on others for transportation. She stated that R & L Transportation provided transportation for her and that appellant would occasionally be the driver. She testified that he was usually friendly but on one occasion seemed angry. AT explained that appellant was in the van buckling her in when he brushed up against her breasts. At this point, she thought it was a "mistake" but later realized it was not. When she arrived at the appointment, appellant reached into her blouse, pinched her nipple, and told her he had better not lose his job. AT testified that while at her doctor's appointment, she called Crystal at Better Home Living to ask for a different ride, but Crystal told her it could not be arranged. AT said that the same thing happened when appellant got her back in the van to ride home, stating that he "pinched her" and "caressed" her for a while. She testified that he again told her that she better not say anything that would jeopardize his job. AT stated that Crystal asked her if she was okay when she returned to Better Home Living to which AT replied no. She testified that she cried through dinner, told her best friend what had happened, and her friend made her call the police. Appellant testified in his defense, denying the allegations as to each offense.
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. 2017). "Sexual contact" means 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(11). "Forcible compulsion" means 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). "Sexual gratification" is not defined in the statute, but our appellate courts have construed the words in accordance with their reasonable and commonly accepted meanings. Wilson v. State , 2018 Ark. App. 371, at 3, 554 S.W.3d 279, 282.
The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Caldwell v. State , 2009 Ark. App. 526, 334 S.W.3d 82. Evidence is viewed in the light most favorable to the State; only evidence that supports the verdict is considered. Id.
Appellant's motion for directed verdict challenged each victim's identification of appellant as the driver but also included different arguments for each of the three charges: (1) as to JK, appellant argued the State had not made "its prima facie showing that the contact was against the will of [JK]"; (2) as to DB, appellant argued that "there was no specific declaration by her of exactly where on her torso other than just her breast. So we would ask that the prima facie case was not met for that element"; and (3) as to AT, appellant argued that there was insufficient evidence that the touching incidents were by forcible compulsion.
First, there would be no merit to any argument that the victims failed to identify appellant as the driver because appellant stipulated that he was the driver for all three women. The victims' testimony in this case provided substantial evidence that appellant engaged in sexual contact with another by forcible compulsion. A sexual-assault victim's testimony may constitute substantial evidence to sustain a conviction for sexual assault. Id. The victim's testimony need not be corroborated; the victim's testimony alone, describing the sexual contact, is enough for a conviction. Id.
Counsel addressed the two remaining adverse rulings. A trial court has broad discretion in evidentiary rulings, and this court will not reverse a trial court's ruling on the introduction of evidence unless the lower court has abused that discretion. Williams v. State , 2011 Ark. App. 675, 386 S.W.3d 609. The first occurred when the State asked appellant on cross-examination whether what occurred with AT had been an accident. Defense counsel objected on the basis that the question had been "asked and answered" to which the State responded that the question had been addressed to DB, not AT. The court overruled the objection. The second occurred during the defense's closing argument when the State objected to the defense's definition of reasonable doubt, which the trial court sustained. The trial court asked defense counsel if it should read the reasonable-doubt instruction, and defense counsel agreed, stating that he did not want to confuse the jury. We agree with appellant's counsel that neither of these rulings could support a meritorious basis for reversal.
From our review of the record and the brief presented to us, counsel has complied with Anders and Rule 4-3(k), and we agree that there is no merit to an appeal. Accordingly, we affirm Worrall's convictions and grant counsel's motion to withdraw.
Affirmed; motion to withdraw granted.
Klappenbach and Brown, JJ., agree.