W. D. v. State

W.D. v. STATE of Arkansas

CA 95-980                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
               Opinion delivered October 16, 1996


1.   Motions -- directed-verdict motion defined -- review of
     sufficiency of evidence. -- A motion for a directed verdict is
     a challenge to the sufficiency of the evidence; in reviewing
     the sufficiency of the evidence on appeal, the appellate court
     views the evidence in the light most favorable to the State
     and affirms if the verdict is supported by substantial
     evidence; substantial evidence is evidence which is of
     sufficient force and character that it will, with reasonable
     certainty, compel a conclusion one way or the other without
     resort to speculation or conjecture.  

2.   Criminal law -- rape -- victim less than fourteen years of age
     -- affirmative defense. -- Under Ark. Code Ann.  5-14-
     103(a)(3), 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; it is an affirmative
     defense to prosecution under 5-14-103(a)(3) that the actor
     was not more than two years older than the victim.

3.   Statutes -- construction -- plain meaning. -- When the
     language of a statute is plain and unambiguous, the language
     is given its plain and ordinary meaning.

4.   Criminal law -- rape -- appellant more than two years older
     than victim -- affirmative defense not available -- evidence
     sufficient to show appellant committed rape. -- The plain
     wording of Ark. Code Ann.  5-14-103(a)(3) used the limiting
     language of "not more than" so that any months or days beyond
     twenty-four months took appellant, who was two years, four
     months, and one day older than the victim on the date of the
     offense, out of the affirmative-defense period; because
     appellant was more than two years older than the victim, he
     could not avail himself of the affirmative defense; the
     appellate court held that the evidence was sufficient to show
     that appellant committed the crime of rape by engaging in
     sexual intercourse with another person who was less than
     fourteen years of age.


     Appeal from Sebastian Chancery Court; Mark Hewett, Chancellor;
affirmed.
     Jo Ellen Carson, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     Steele Hayes, Special Judge.
     The appellant appeals from the judgment of the Juvenile
Division of the Sebastian County Chancery Court adjudicating him a
delinquent for committing the crime of rape and committing him to
the Department of Human Services, Division of Youth Services.  On
appeal, he argues that the trial court erred in denying his
directed verdict motions.  We affirm.
     A motion for a directed verdict is a challenge to the
sufficiency of the evidence.  Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995).  In reviewing the sufficiency of the evidence on
appeal, we view the evidence in the light most favorable to the
State and affirm if the verdict is supported by substantial
evidence.  LaRue v. State, 34 Ark. App. 131, 806 S.W.2d 35 (1991). 
Substantial evidence is evidence which is of sufficient force and
character that it will, with reasonable certainty, compel a
conclusion one way or the other without resort to speculation or
conjecture.  Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931
(1992).  
     The appellant argues that the evidence is insufficient to
establish forcible compulsion pursuant to Arkansas Code Annotated
 5-14-103(a)(1) (1995).  He also argues, in the alternative, that
he is not guilty of committing rape by engaging in sexual
intercourse with a person less than fourteen years of age because
the age of the victim was within two years of the appellant's age. 
See Ark. Code Ann.  5-14-103(a)(3).
     The appellant, who was twelve years old at the time of the
offense, was convicted of raping a ten-year-old girl.  Dr. Merle
Edward McClain, a pediatrician, examined the victim approximately
one month after the incident.  Dr. McClain testified that the
victim stated that her brothers let the appellant into their house
on the night in question and that the appellant later "got on top
of her and put his thing" into her pudendum.  The doctor testified
that the victim complained of constipation and explained that it
was not unusual for a child who had been sexually molested to
complain of abdominal pain.
     The victim testified that the appellant was friendly with her
brothers.  She testified that the appellant came into their house
through a window in the bedroom in which she was sleeping with her
brother, Tyrus.  She testified that she was awakened at one point
during the night to find that the appellant had taken off her
clothes.  She then felt something "going into" her.  She testified
that "at first he would not let me up.  He just kept on doing what
he was doing.  Then he stopped and I hurried up and got up."  The
victim spent the rest of the night in another room.
     The victim's brother, Tyrus, testified that the appellant was
present in the bedroom on the night in question.  He testified that
when he awoke the next morning, the appellant was sleeping next to
him where his sister had previously been sleeping.  Jennifer
Campbell, the mother of the victim, testified that the victim began
complaining of stomach aches.  She stated that the victim
subsequently told her that the appellant had raped her.   
     We do not address the appellant's argument regarding forcible
compulsion because we find the evidence sufficient to sustain his
conviction under  5-14-103(a)(3), which provides:  
     (a)  A person commits rape if he engages in sexual
     intercourse or deviate sexual activity with another
     person:

                             . . . 

     (3)  Who is less than fourteen (14) years of age.  It is
     an affirmative defense to prosecution under this
     subdivision that the actor was not more than two (2)
     years older than the victim.

The appellant contends that he is not guilty of committing rape
under this section because the age of the victim was within two
years of his age.  The appellant presented evidence that he was two
years, four months, and one day older than the victim on the date
of the offense.  The trial court concluded that the affirmative
defense was not applicable because the appellant was over two years
older than the victim.  The appellant argues that the two-year
statutory language should be two years including any months and
days which follow the two-year anniversary up to the three-year
anniversary year.
     In State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1991),
overruled on other grounds in Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992), our Supreme Court held that "12 years of age or
younger" as used in Arkansas Code Annotated  5-13-202(a)(4)(C)
defining second degree battery refers to persons whose age is less
than or under 12 years as well as persons who have reached and
passed their twelfth birthday but have not yet reached their
thirteenth birthday.  The Court, in Joshua, agreed with the
following reasoning set out in State v. Carlson, 223 Neb. 874, 394 N.W.2d 669 (1986):
     If "less than fourteen years of age" or "under fourteen
     years of age" had been used in [the statute], the
     protection of that statute would terminate when a child
     reached the 14th birthday.  Because "less than" or
     "under" is absent from [the statute], while fourteen
     years of age or younger" appears in the statute, the
     compelled logical conclusion is that the statute's
     protection extends into and throughout the year
     immediately following a person's 14th birthday.  When the
     plain and unambiguous language of [the statute] is
     considered, to the ordinary person "fourteen years of
     age" means that one has passed the 14th birthday but has
     not reached the 15th birthday.  Thus, "fourteen years of
     age" is a temporal condition existing on the 14th
     birthday and continuing until the 15th birthday.  Any
     other construction of "fourteen years of age" would be a
     perversion of popular parlance.

(Citations omitted.)

     When the language of a statute is plain and unambiguous, the
language is given its plain and ordinary meaning.  Smith v. Smith,
41 Ark. App. 29, 848 S.W.2d 428 (1993).  Unlike the statutory
language in Joshua or Carlson, the plain wording of  5-14-
103(a)(3) uses the limiting language of "not more than" so that any
months or days beyond twenty-four months takes the defendant out of
the affirmative-defense period.  Thus, because the appellant was
more than two years older than the victim, he could not avail
himself of the affirmative defense.  Therefore, we hold that the
evidence is sufficient to show that the appellant committed the
crime of rape by engaging in sexual intercourse with another person
who was less than fourteen years of age.
     Affirmed.
     Neal and Griffen, JJ., agree.