Emil Roland Rath v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
SARAH J. HEFFLEY, JUDGE
DIVISION I
CACR 06-650
EMIL ROLAND RATH
February 21, 2007
APPELLANT
V.
STATE OF ARKANSAS
APPEAL FROM THE CIRCUIT COURT
OF POLK COUNTY
[NO. CR-2005-150]
HONORABLE JERRY
LOONEY, JUDGE
WAYNE
APPELLEE
AFFIRMED
Sarah J. Heffley, Judge
Appellant Emil Roland Rath was found guilty by a jury of committing sexual assault
in the fourth degree and was sentenced to a term of six years’ imprisonment. He contends
on appeal that the trial court erred in denying his motion for a directed verdict and by
allowing the State to inquire about convictions that had been expunged. We find no error
and affirm.
Considering appellant’s first argument, directed-verdict motions are treated as
challenges to the sufficiency of the evidence. Vergara-Soto v. State, 77 Ark. App. 280, 74
S.W.3d 683 (2002). When we review a challenge to the sufficiency of the evidence, we will
affirm the conviction if there is substantial evidence to support it, when viewed in the light
most favorable to the State. Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003).
Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion
one way or another and pass beyond mere suspicion or conjecture. Miles v. State, 350 Ark.
243, 85 S.W.3d 907 (2002). Only evidence supporting the verdict is considered. Carmichael
v. State, 340 Ark. 598, 12 S.W.3d 225 (2000).
Sexual assault in the fourth degree is a violation of Ark. Code Ann. § 5-14-127 (Repl.
2006). Subsection (a)(1) of the statute provides that a person commits this offense if he or
she, being twenty years of age or older, engages in sexual intercourse or deviate sexual
activity with another person who is less than sixteen years of age and is not his or her spouse.
The term “sexual intercourse” means penetration, however slight, of the labia majora by a
penis. Ark. Code Ann. § 5-14-101(10) (Repl. 2006). The phrase “deviate sexual activity”
is defined as any act of sexual gratification involving the penetration, however slight, of the
labia majora or anus of a person by any body member of another person. Ark. Code Ann. §
5-14-101(1).
Janice Turcott lives in Mena and has a daughter, C.T. Ms. Turcott testified that
appellant’s wife and sister-in-law used to babysit C.T. and that C.T. became acquainted with
appellant at that time, when she was approximately eleven years old. In June and July of
2005, Ms. Turcott noticed changes in C.T., and it seemed to her that C.T. and appellant had
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become more than just good friends. She observed that they hugged in a way that was a
“little too personal.” During outings in the park, C.T. and appellant would run the trails
ahead of Ms. Turcott, and they would return in an hour, even though Ms. Turcott had told
them to come back sooner. These things concerned Ms. Turcott, since C.T. was fourteen and
appellant was thirty years old. With her suspicions aroused, she began monitoring C.T. and
appellant’s emails and instant messages and also recording their phone calls. Based on the
content of these communications, Ms. Turcott forbid appellant from seeing her daughter.
Ms. Turcott turned the communications over to the police.
C.T. testified that she had known appellant for five years and that appellant and his
wife began to socialize more often with her and her mother during the summer of 2005. She
said she was being harassed by a man named Russell, and she asked appellant to protect her
from this man. She said appellant did so by standing watch over her house at night a couple
of times a week.
C.T. recalled that she sneaked out of her house to meet appellant sometime around
midnight on August 1, 2005. After talking for a while, they began kissing. She said she
tried to back off, but that appellant would not stop. Appellant asked her twice to have sex
with him. She said that, although it was not something she wanted to do, she agreed to have
sex with him following his second request. C.T. testified that appellant penetrated her vagina
with his penis while they lay on his jacket. According to C.T., appellant used a condom that
he removed from a pocket in his pants. She was not sure if appellant ejaculated, but she said
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that afterwards appellant tied a knot in the condom and placed it in his pocket.
C.T. further revealed in her testimony that she and appellant developed a code with
which to communicate over the internet. They used symbols for such phrases as “I love
you,” and “hugs and kisses.” To circumvent the parental controls Ms. Turcott had placed on
C.T.’s computer, appellant and his wife set up an email account for C.T. to use without her
mother’s knowledge.
The State played for the jury tapes of two telephone conversations between appellant
and C.T. In them, appellant encouraged C.T. to disobey her mother by meeting with him;
appellant advised C.T. that she was not required to respond to police questioning other than
to give her name, address, and date of birth; they discussed the possibility that she might be
pregnant; they talked about how much they wanted to see each other; and they spoke of “the
strength of the ties between us.”
Steven Hubbard, an officer with the Mena Police Department, interviewed appellant
on September 11, 2005. Officer Hubbard testified that appellant admitted he had sexual
intercourse with C.T.
In his testimony, appellant said that he agreed to protect C.T. from Russell Powell and
that his being at her house was for that purpose. He denied having sexual intercourse with
C.T. He testified that he hurt his back when he was in the military and that he was bedridden
the night C.T. claimed they had sexual relations. He also said the statement he gave to
Officer Hubbard was made under pressure and that he had made something up so he could
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leave. He further maintained that his back was hurting during the interview because he was
sitting in a plastic chair and had not taken his evening medication.
Tina Rath, appellant’s wife, testified that C.T. asked appellant to watch her house to
make sure that Russell was not around. She said that on August 1 appellant had a cold and
was also experiencing terrible back pain. She said she had to help him go to the bathroom
several times and that he did not leave the house the entire evening.
As his challenge to the sufficiency of the evidence, appellant contends that the only
evidence supporting the verdict was the uncorroborated testimony of C.T., and he argues that
the jury’s finding of guilt rested on speculation and conjecture in light of his and his wife’s
testimony. Contrary to appellant’s arguments, the weighing of evidence lies within the
province of the jury, and we are bound by its determination regarding the credibility of
witnesses. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2003). Moreover, it is well
settled that the testimony of a child victim alone constitutes substantial evidence to support
the verdict. Pickens v. State, 347 Ark. 904, 69 S.W.3d 10 (2002). Here, the child testified
that she and appellant engaged in sexual intercourse, which is testimony that the jury was
entitled to believe. We cannot say there is no substantial evidence to support the guilty
verdict.
Appellant next argues that the trial court erred by allowing the State to impeach his
testimony by inquiring about two previous convictions of sexual assault in the first degree,
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identified as class C felonies, that had been expunged. We disagree.
Rule 609(a) of the Arkansas Rules of Evidence provides:
For the purpose of attacking the credibility of a witness,
evidence that he has been convicted of a crime shall be admitted
but only if the crime (1) was punishable by death or
imprisonment in excess of one [1] year under the law under
which he was convicted, and the court determines that the
probative value of admitting this evidence outweighs its
prejudicial effect to a party or witness, or (2) involved
dishonesty or false statement regardless of the punishment.
Rule 609(c) provides in pertinent part that:
Evidence of a conviction is not admissible under this rule if (1)
the conviction has been the subject of a pardon, annulment,
certificate of rehabilitation, or other equivalent procedure based
on a finding of the rehabilitation of the person convicted.
Although appellant’s prior convictions had been expunged, the trial court allowed the
State’s inquiry because there had been no finding of rehabilitation when the convictions were
expunged. The trial court referenced the supreme court’s decision in Wal-Mart Stores, Inc.
v. Regions Bank Trust Dep’t, 347 Ark. 826, 69 S.W.3d 20 (2002), where it held that Rule
609(c) prohibits the admission of expunged convictions only where there is a finding of
rehabilitation at the time of expungement.
Appellant contends that Wal-Mart Stores, Inc. is distinguishable because the prior
convictions in that case involved dishonesty or false statement. We fail to perceive any
meaningful distinction because the supreme court’s holding in Wal-Mart Stores, Inc.
concerning the admissibility of expunged convictions did not hinge on the nature of the crime
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involved.
Appellant also argues that use of the prior convictions was not proper under Rule
609(a) because sexual assault in the first degree does not involve dishonesty or false
statement and because the prejudicial effect outweighed the probative value.
However,
these issues were not brought to the trial court’s attention, and we do not consider arguments
raised for the first time on appeal. Simmons v. State, 95 Ark. App. 114, ___ S.W.3d ___
(2006). Appellant also contends that the trial court erred when it stated that the prior
convictions were not subject to expungement. We can find no error because the trial court’s
comment was not the basis for its ruling and because this issue is also being raised for the
first time on appeal.
Affirmed.
M ARSHALL, J., agrees.
Hart, J., concurs.
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