Raymond Earl Sehorn v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION III

RAYMOND EARL SEHORN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-948

December 14, 2005

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[CR-2002-449]

HON. GARY RAY COTTRELL, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Raymond Earl Sehorn was convicted of raping his girlfriend's six-year-old daughter, a class Y felony, and sentenced to eighteen years' imprisonment in the Arkansas Department of Correction. On appeal he argues that the trial court erred in its refusal to grant his directed-verdict motion because the evidence presented was insufficient to support his conviction. He also contends that the trial court abused its discretion in its failure to allow additional jury instructions. Finding no merit in Sehorn's appeal, we affirm.

First, we consider Sehorn's directed-verdict motion as a challenge to the sufficiency of the evidence. Green v. State, 79 Ark. App. 297, 87 S.W.3d 814 (2002). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Killian v. State, 60 Ark. App. 127, 959 S.W.2d 432 (1998). Evidence is substantial when it is forceful enough to compel a conclusion and goes beyond mere speculation or conjecture. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998).

Sehorn was convicted of rape by engaging in deviate sexual activity with another person who was less than fourteen years old, pursuant to Ark. Code Ann. § 5-14-103(a)(1)(C)(i) (Supp. 2001).1 "Deviate sexual activity" is any act of sexual gratification involving the penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person. Ark. Code Ann. § 5-14-101(1)(B) (Supp. 2001). "In a rape case, penetration can be shown by circumstantial evidence, and if the evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that is sufficient." Clem v. State, 351 Ark. 112, 117-18, 90 S.W.3d 428, 430 (2002). Furthermore, the uncorroborated testimony of a rape victim is sufficient to sustain a conviction. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004).

At trial, police and EMS officials testified that they transported the six-year-old child to the hospital, that she was bleeding from her rectum, and that they were told by D.L.'s mother that D.L. had fallen while jumping over a chair. The child refused to discuss the nature of her injury or how she sustained the injury, deferring to her mother. Doctor Felicia Farris, who examined D.L. in the emergency room, testified that the examination revealed dried blood on the child's perineal area and her anal area, along with abrasions and lacerations on her vaginal and anal openings. Based on the type of injuries observed, and the child's reluctance to discuss the injuries, Dr. Farris concluded that the child had received anintentional injury-that she had been assaulted in some way-and required expert evaluation for sexual assault.

Charla Jamerson, a forensic nurse to whom D.L. was then referred, testified that she examined D.L. and found six abrasions around her hymen. She also described an abrasion on the anus measuring one fourth of an inch by one eighth of an inch. Additionally, there was an anal fissure and significant gaping on multiple locations on the anus, as well as laxity in the anus itself. Jamerson explained that any of these injuries could cause bleeding and that they were consistent with blunt force trauma to the posterior fourchette, the labia minora, the hymenal ring, the fossa navicularis, and the rectum. Jamerson testified that when she began to explain her findings to the child's mother-before she or anyone at the Children's Safety Center mentioned the possibility of molestation-the mother immediately said, "I know she was not molested. My boyfriend would not do that to her." Jamerson also testified that the injuries she observed could not have resulted from a fall; she stated that because the injuries were internal they were necessarily caused by blunt-force-trauma penetration.

D.L. testified at trial that Sehorn took her into the bathroom, blindfolded her, and covered her mouth with duct tape. She said that he threatened her with a knife and told her that if she told anyone, he would kill her whole family. D.L. stated that he then put her in the bath tub and "[stuck] his finger up [her]." She said that it felt like his fingernails were very sharp, and it hurt. She further testified that although she could not actually see what Sehorn "stuck up" her anus, she knew that it felt sharp and hurt. She also stated that in the months following the incident she refused to talk to the police or doctors because she was afraid of Sehorn. Finally, she testified that-contrary to her mother's explanation-her bleeding was not a result of her falling on a chair.

Based on this evidence, the jury could conclude-without resort to speculation or conjecture-that Sehorn penetrated D.L.'s anus and labia majora and that D.L. was less than fourteen years old. Accordingly, Sehorn's sufficiency argument is without merit, and the trial court's denial of his directed-verdict motion is affirmed.

Next, Sehorn argues that the trial court abused its discretion by denying his motion to include additional jury instructions-specifically an instruction for second and fourth-degree assault. However, Sehorn failed to establish a record below that would allow him to appeal this issue. It is well-settled law that no party may assign as error the failure to give a jury instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the manner to which he objects and the grounds of his objection. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997). Further, Sehorn has the burden to produce a record sufficient to demonstrate error, and this court may not consider evidence not included in the record on appeal. Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001). Also, even where parties acknowledge that objections were originally made at an in-chamber hearing before the jury was charged, the appellate court is still unable to ascertain from the record the specific objections or arguments concerning the jury instructions, and thus cannot consider the appeal. Houston v. Knoedle, 329 Ark. 91, 947 S.W.2d 745 (1997); see also Phills v. State, 301 Ark. 265, 783 S.W.2d 348 (1990) (holding that an off-the-record objection to the admission of evidence is inadequate to preserve the argument for appeal).

Here, after Sehorn informed the court that he intended to rest his case, he made several motions, including a reference to a "pending motion for a lesser-included offense." The court responded that it would address the motion at the hearing on jury instructions, which was scheduled for a later time. After asking each party how long they would need for closing argument, the court asked Sehorn whether he had reviewed the jury instructions thathad been submitted to the court. He responded that they were "satisfactory, except there is no lesser-included offense." The court said they would recess and take the matter of instructions up the following day. The court also inquired whether Sehorn had his alternative instructions ready. Sehorn replied that they were not ready at the moment, but that he did intend to submit them to the court. The next morning, the trial reconvened and the court gave the instructions to the jury-including only the instruction for rape. After the parties delivered closing arguments, the jury retired to deliberate. The trial court then allowed Sehorn to renew any objections, at which time he noted that the court had-off the record-denied his request for an instruction on the offenses of sexual assault in the second degree and sexual assault in the fourth degree. Sehorn then proffered the proposed instructions to the court and asked that his objection be noted for the record.

Because Sehorn's objection was not timely-the first recorded objection occurred after the jury retired to deliberate, following the jury instructions and closing argument-we are unable to reach the merits of his claim on appeal. Furthermore, the record is inadequate to allow us to consider the issue on appeal. We are left with no explanation as to why the court's rape instruction was inadequate, why the court refused the proposed instructions, or what objections the State articulated to the proposed instructions. For the forgoing reasons, we affirm Sehorn's conviction and eighteen-year sentence.

Affirmed.

Glover and Neal, JJ., agree.

1 Arkansas Code Annotated § 5-14-103 was amended by Act 1469 of 2003. The crime that is the subject of this appeal took place prior to the effective date of Act 1469.