Steven Lynn Freeman v. State of Arkansas

Steven L. FREEMAN v. STATE of Arkansas

CR 97-640                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 15, 1998


1.   Motions -- directed verdict -- denial -- factors on review. --
     A motion for a directed verdict is treated as a challenge to
     the sufficiency of the evidence; in reviewing a denial for a
     motion for a directed verdict, the supreme court views the
     evidence in the light most favorable to the State and may
     consider only the evidence that supports the verdict; the test
     for determining the sufficiency of the evidence is whether
     there is substantial evidence to support the verdict; evidence
     is substantial if it is forceful enough to compel a conclusion
     one way or the other beyond speculation and conjecture.

2.   Motions -- directed verdict -- bench trial -- appellant's
     argument could be considred by supreme court. -- In a bench
     trial, the defendant is not required to move for a directed
     verdict to preserve the sufficiency of the evidence issue; the
     defendant is also not required to apprise the court in a bench
     trial of the particulars of his claim that the evidence is
     insufficient; because appellant, in his motion at the close of
     the State's case, argued that the trial court should direct a
     verdict in his favor because the witness's testimony was
     replete with inconsistencies and uncertainties and he
     generally renewed all of his motions at the close of the
     evidence, the supreme court could consider appellant's
     argument on appeal.

3.   Criminal law -- rape charges -- term "forcible compulsion"
     defined. -- Arkansas Code Annotated  5-14-101(2) (Repl. 1997)
     defines forcible compulsion to mean physical force or a
     threat, express or implied, of death or physical injury to or
     kidnapping of any person; physical force is any bodily impact,
     restraint or confinement, or the threat thereof; the test that
     the supreme court has used to determine whether there was
     force is whether the act was against the will of the party
     upon whom the act was committed.

4.   Appeal & error -- appellate courts do not weigh witness
     credibility -- substantial-evidence test used. -- Appellate
     courts do not weigh the credibility of witnesses; rather than
     reweighing the evidence presented at trial, the supreme court
     determines whether there is substantial evidence to support
     the lower court's findings.

5.   Criminal law -- rape -- uncorroborated testimony of victim
     sufficient to sustain conviction. -- The uncorroborated
     testimony of a rape victim is sufficient to sustain a
     conviction.

6.   Witnesses -- trier of fact free to believe all or part of
     witness's testimony. -- The trier of fact is free to believe
     all or part of a witness's testimony.

7.   Evidence -- trial court believed victim's testimony --
     appellant's rape conviction affirmed. -- Where the victim
     testified that the appellant inflicted two bruises on her
     upper arms, the examining physician's testimony supported this
     testimony, and the trial court obviously believed the victim's
     testimony and gave substantial weight to the evidence that the
     State presented, the trial court did not err in finding that
     the victim's testimony constituted substantial evidence that
     the act was committed against her will; the case was affirmed. 
     

     Appeal from Pulaski Circuit Court, Fifth Division; Morris W.
Thompson, Judge; affirmed.
     J. Sky Tapp, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.


     Ray Thornton, Justice.
     On December 13, 1995, appellant Steven Lynn Freeman was
charged with raping Brandi Galley on or about September 15, 1995. 
Freeman waived his right to a jury trial.  After a July 8, 1996
bench trial, he was convicted of rape, a Class-Y felony.  Freeman
failed to appear for sentencing on four separate occasions.  He was
finally sentenced on February 18, 1997, to forty years in the
Arkansas Department of Correction for the rape conviction.  The
trial court ordered this sentence to run concurrently with
sentences imposed for prior hot-check convictions and the failure
to appear charges.  From his conviction on the rape charge, Freeman
brings this appeal.  We find no reversible error and affirm.
     On appeal, Freeman alleges that the trial court erred in
denying his motion for a directed verdict.  We treat a motion for
a directed verdict as a challenge to the sufficiency of the
evidence.  Williams v. State, 329 Ark. 8, 16, 946 S.W.2d 678, 682
(1997).  In reviewing a denial for a motion for a directed verdict,
we view the evidence in the light most favorable to the State and
may consider only the evidence that supports the verdict.  Id.  The
test for determining the sufficiency of the evidence is whether
there is substantial evidence to support the verdict.  Id. 
Evidence is substantial if it is forceful enough to compel a
conclusion one way or the other beyond speculation and conjecture. 
Id.
     In his motion at the close of the State's case, Freeman argued
that the trial court should direct a verdict in his favor because
Galley's testimony was replete with inconsistencies and
uncertainties.  He generally renewed all of his motions at the
close of the evidence.  On appeal, Freeman argues that the trial
court erred in denying his motion because the State failed to prove
that he used forcible compulsion, a required element of the charge. 
Since this was a bench trial, the defendant was not required to
move for a directed verdict to preserve the sufficiency of the
evidence issue.  Strickland v. State, 322 Ark. 312, 317, 909 S.W.2d 318, 320-21 (1995).  The defendant was also not required to apprise
the court in a bench trial of the particulars of his claim that the
evidence is insufficient.  Id.  Therefore, we may consider
Freeman's argument on appeal.
     Freeman was charged with rape under Ark. Code Ann.  5-14-
103(a) (Repl. 1997), which reads as follows:
(a)  A person commits rape if he engages in sexual
intercourse or deviate sexual activity with another
person:
     (1)  By forcible compulsion; . . . .
In the instant case, it was not disputed that Freeman engaged in
sexual intercourse with Galley.  Rather, the element of "forcible
compulsion" was the main issue at trial.
     The Code defines "forcible compulsion" to mean "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) (Repl.
1997).  We have further defined "physical force" as "any bodily
impact, restraint or confinement, or the threat thereof." 
Strawhacker v. State, 304 Ark. 726, 731, 804 S.W.2d 720, 723
(1991).  The test that we have used to determine whether there was
force is "whether the act was against the will of the party upon
whom the act was committed."  Mosley v. State, 323 Ark. 244, 249,
914 S.W.2d 731, 734 (1996).
     On appeal, Freeman asserts that Galley's testimony was
insufficient to prove the element of forcible compulsion.  In so
arguing, Freeman seeks to place this court in the position of
reweighing the credibility of the witnesses at the trial court, and
this we cannot do.
     It is well settled that appellate courts do not weigh the
credibility of witnesses.  Caldwell v. State, 319 Ark. 243, 246,
891 S.W.2d 42, 44 (1995).  Rather than reweighing the evidence
presented at trial, we determine whether there is substantial
evidence to support the lower court's findings.  Mauppin v. State,
314 Ark. 566, 568, 865 S.W.2d 270, 271 (1993).  We have held many
times that the uncorroborated testimony of a rape victim is
sufficient to sustain a conviction.  Puckett v. State, 324 Ark. 81,
87, 918 S.W.2d 707, 710 (1996).
     In this case, Galley testified that Freeman forced her into
the booth at their place of employment and pinned her down in order
to have sexual intercourse.  The State offered into evidence
photographs of bruises on Galley's upper arms that, according to
the examining physician testimony's at trial, were symmetrical and
approximately the "size of a thumb."  The physician further
testified that these bruises would be consistent with someone
grabbing Galley by the arms and forcibly holding her down.  The
trial court premised its finding of guilt upon two pieces of
evidence that it considered highly persuasive.  First, it looked at
the bruises on Galley's arms.  Second, it gave weight to the
testimony of Galley's boyfriend Kenneth Hall that, during a phone
call the evening of the incident, he heard a male voice in the
background telling Galley to get off the phone and he heard her
responding "get off of me."  The trial court concluded that the
intercourse was forcibly compelled against Galley's will.
     To affirm, we must find that this evidence is forceful enough
to compel reasonable minds to reach the same conclusion as the
trial court.  See Williams v. State, 329 Ark. at 16, 946 S.W.2d  at
682.  In Mosley, where the appellant was likewise challenging the
sufficiency of the evidence supporting the forcible-compulsion
element of rape, we again said that a victim's testimony alone will
suffice to sustain a rape conviction and need not be corroborated. 
Mosley, 323 Ark. at 249, 914 S.W.2d  at 734.  We further determined
that the victim's testimony in that case, which was corroborated by
the testimony of the medical and police examiners, met the test of
showing that the act was against her will.  Id.  We said that the
trier of fact is free to believe all or part of a witness's
testimony.  Id. at 250, 914 S.W.2d  at 734.  Noting that the jury
obviously chose to believe the victim's testimony over Mosley's, we
concluded that the State's evidence was sufficient to prove
forcible compulsion.  Id.
     The facts in this case are similar to Mosley in that Galley
herself testified that Freeman inflicted two bruises on her upper
arms, and the examining physician's testimony supported this
testimony.  The trial court obviously believed Galley's testimony
and gave substantial weight to the evidence that the State
presented.  To the extent that Galley's testimony contained
inconsistencies, this is a matter of credibility for the trier of
fact to resolve.  Puckett, 324 Ark. at 87, 918 S.W.2d  at 710.
     We conclude that the trial court did not err in finding that
Galley's testimony constituted substantial evidence that the act
was committed against her will.  Accordingly, we affirm.