Francisco Batres Palma v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

FRANCISCO BATRES PALMA

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-350

September 28, 2005

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[NO. CR2002-584-1]

HON. TOM J. KEITH,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

A Benton County jury found Francisco Batres Palma guilty of two counts of rape, and he was sentenced to thirty-five years' imprisonment. In an opinion handed down on January 19, 2005, this court ordered rebriefing due to appellant's flagrantly deficient abstract. He has now submitted an abstract that complies with Ark. Sup. Ct. R. 4-2. Appellant argues that the trial court erred in denying his directed-verdict motions because the evidence was insufficient to convict him. We affirm.

Thirteen-year-old K.W. testified that, when she was ten or eleven years old, she spent time with appellant's daughter and niece at appellant's house. She testified that one night during dinner, appellant began massaging her inner thigh. She did not say anything because the rest of the family was present. K.W. testified about another incident when appellant had driven her to a friend's house. While they were alone in the car, appellant put his hand down her pants and stuck his finger inside of her. Appellant told her not to tell anyone. K.W.

testified about a time that she spent the night with appellant's daughter and niece at appellant's house. During the night, appellant came into the bedroom, woke her and his niece, and took them to the living room. Appellant pulled down their pants and licked their "lower area[s]." He then told his niece to leave and bent K.W. over a couch and began "humping" her over her clothes. K.W. testified that she saw appellant licking his niece in "the front private where you go to the bathroom."

J.P., appellant's fifteen-year-old niece, testified that she and her family moved to Arkansas from California and lived with appellant for a while. She testified that the abuse all began with appellant rubbing her thigh. She stated that at a time when they were alone in the car together, appellant told her how he used to touch his daughter until she moved to her aunt's house. J.P. stated that appellant then touched her over her clothes and touched her skin. He told her to unzip his pants, and he stuck his hand down her pants and touched her on the inside of her vagina. Appellant warned J.P. not to tell anyone. J.P. testified that on another occasion, they were wrestling and appellant grabbed her breast. Regarding the slumber-party incident, J.P. stated that appellant took her and K.W. from his daughter's bedroom into the living room and told them to remove their shorts and sit on the couches. She said he told her to pull down her underwear and then he licked her vagina. J.P. said that she could not see what was happening but saw appellant between K.W.'s legs. She also saw appellant behind K.W. as she was bent over a couch.

J.P. testified further about an incident that occurred in the bathroom of appellant's house. J.P. was changing clothes when appellant walked into the room without knocking. She stated that, while inside the bathroom, appellant offered her a check for $300 if she would have sex with him. He placed her on top of the sink and attempted to unzip her pants. She pushed him away, and he pushed her into the wall. After telling him to leave, J.P. went to a friend's house.

Fifteen-year-old A.A., J.P.'s friend, testified that J.P. called her and was crying. When J.P. went to A.A.'s house, A.A. recalled that J.P.'s hair was messed up, her shirt was ripped, she was crying, and she could not speak clearly. J.P. told A.A. about the incident in the bathroom, and J.P. said that appellant had asked her, "Did you actually think I was going to give you money to go to the mall for no reason?" A.A. testified that she and J.P. had plans to go shopping that day and that J.P. said she was going to get some money from appellant.

A.A.'s mother confirmed that her daughter and J.P. had plans to go shopping. She remembered J.P.'s phone call in which she stated that she needed help because appellant was bothering her. A.A.'s mother stated that J.P. appeared to have been pushed around, she was very nervous, her face was red, and her bra was ripped.

Appellant moved for a directed verdict, arguing that, while there may have been evidence of fondling, there was no evidence of deviate sexual activity. He further argued that the State's witnesses spoke in only general terms as to what occurred. His motion was denied.

Appellant testified that J.P. asked him for money to go shopping and when he did not give it to her, she became angry. He stated that J.P. told him that she would accuse him of molesting her. According to him, J.P. called him into the bathroom that day and asked for the money. When he told her he did not have the money, she began crying and making telephone calls.

On appeal, appellant argues that the trial court erred in denying his motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Pinder v. State, 357 Ark. 275, 166 S.W.3d 49 (2004). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003). On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id.

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. Ark. Code Ann. § 5-14-103(a)(1)(C)(i) (Repl. 1997). Arkansas Code Annotated section 5-14-101(1) (Repl. 1997) provides:

(1) "Deviate sexual activity" means any act of sexual gratification involving:

(A) The penetration, however slight, of the anus or mouth of one person by the penis of another person; or

(B) The penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person.

Appellant argues that, given the inconsistencies in the State's witnesses' testimony and his constant denials both in a custodial interview and at trial, there was insufficient evidence to convict him. Inconsistencies in the testimony of a rape victim are matters of credibility for the jury to resolve. Butler v. State, 349 Ark. 252, 82 S.W.2d 152 (2002). The jury is not required to believe appellant's self-serving testimony and was free to believe all or part of a victim's testimony. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). K.W. and J.P., who were both under the age of fourteen years at the time the events occurred, testified that appellant put his finger and his tongue on and inside their vaginas, which constitutes deviate sexual activity under Ark. Code Ann. §5-14-101(1)(B). A victim's uncorroborated testimony is sufficient to support a conviction if the statutory elements of the offense are satisfied. Benson v. State, 357 Ark. 43, 160 S.W.3d 341 (2004). We conclude that substantial evidence supports appellant's convictions for rape, and we therefore affirm the jury's verdict.

Affirmed.

Pittman, C.J., and Glover, J., agree.