Dean Oates v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CACR 00-280

October 25, 2000

DEAN OATES APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE MARION HUMPHREY

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

A Pulaski County jury found Dean Oates guilty of second-degree violation of a minor, for which he was placed on probation for a period of two and one-half years. On appeal from that conviction, appellant argues that the trial court erred by excluding the testimony of a polygraph examiner and that there is insufficient evidence to sustain the jury's finding of guilt. We affirm.

When the sufficiency of the evidence is challenged on appeal, we review the evidence in the light most favorable to the appellee, considering only that evidence that tends to support the verdict. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). The evidence, whether direct or circumstantial, must be of sufficient force that it will, with reasonable and material certainty and precision, compel a conclusion one way or another. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995). We do not weigh the evidence on one side against the other; we simply determine whether the evidence in support of the verdict is substantial. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992). Neither do we pass on the credibility of witnesses. That duty is left to the trier of fact. Johnson v. State, 70 Ark. App. 343, 19 S.W.3d 66 (2000).

Appellant was the head coach of Pulaski Academy's junior high girls' basketball team. On September 11, 1997, he asked one of his players, A.T., age fifteen, to babysit his son after school. The plan was for A.T. to look after the child at her house, but before picking up his son from daycare, appellant drove with A.T. to his house to get clothes for his son. He asked A.T. to accompany him inside the house. After gathering the clothes, they went into the den where appellant referred to horseplay that had occurred on a previous school trip by saying, "I'm gonna get you back for Las Vegas." A.T. testified that appellant grabbed her in a headlock, put her on the floor, and straddled her. He then began to tickle her underneath her shirt. A.T. asked appellant to stop, and he got up and went into the kitchen. He returned to the den with some ice, and he again got her in a headlock and placed her on thefloor, pinning her arms behind her head with his knees. A.T. said that appellant then rubbed her face and hair in a "soft-like, caress manner." She testified that he let her arms free and scooted down on her stomach, lifted her shirt, and began to play with her navel with the ice. He then proceeded to touch her breasts with his hands and the ice. At first his hands were outside of her bra, but he moved them underneath it. A.T. said that she tried to push him off of her during this encounter and that she finally managed to roll onto her stomach. He eventually got up and walked into the kitchen. A.T. testified that later, when they were in the car, he told her that he had "crossed the line" and that he could get into trouble if she told anyone what had happened.

Violation of a minor in the second degree is a class D felony. Ark. Code Ann. § 5-14-121(b) (Repl. 1997). A person commits this offense if he engages in sexual contact with another person not his spouse, who is more than thirteen years of age and less than eighteen years of age, and the actor is the minor's guardian, an employee in the minor's school or school district, a temporary caretaker, or a person in a position of trust or authority of the minor. Ark. Code Ann. § 5-14-121(a) (Repl. 1997). The term "sexual contact" means any act of sexual gratification involving the touching, directly or through clothing, of sex organs,including the breast of a female. Ark. Code Ann. § 5-14-101(8) (Repl. 1997).

In his argument on appeal, appellant contends that there was insufficient evidence to show that he touched the victim for the purpose of sexual gratification. We hold, however, that the evidence was sufficient to support the jury's verdict.

Although the term "sexual gratification" is not defined in the statute, the supreme court has construed the words in accordance with their reasonable and commonly accepted meanings. Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995). For instance, in McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991), the court noted that the word "sexual" has been defined as "of or relating to the male or female sexes or their distinctive organs or functions," or "of or relating to the sphere of behavior associated with libidinal gratification," and that "gratification" has been defined as "something that pleases." In addition, the court has consistently held that it is not necessary for the State to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. Farmer v. State, 341 Ark. 220, 15 S.W.3d 674 (2000). On the record before us, we believe the jury could reasonably infer that appellant's touching of the victim's breasts was done for the purpose of sexual gratification.

At trial, appellant proffered the testimony of a polygraph examiner who had administered two lie detector tests to appellant. In the proffer, the witness said that during the tests appellant denied that he had purposely touched the victim's breasts, and the witness stated his conclusion that appellant's responses in this regard were truthful. Appellant contends on appeal that the trial court erred by excluding this testimony, arguing that the results of a polygraph examination should be admissible under the limited circumstances where the police are told about the test before it is given and are advised of the results, and where the jury is faced with the sole question of determining the credibility of the witnesses. It has long been the rule in Arkansas, however, that the results of polygraph examinations are not admissible absent a stipulation by both parties. Both the legislature and the supreme court have declared this to be so. See Ark. Code Ann. § 12-12-704 (Repl. 1999); Weaver v. State, 339 Ark. 97, 3 S.W.3d 323 (1999); State v. Bullock, 262 Ark. 394, 557 S.W.2d 193 (1977). We are bound by these decisions.

Affirmed.

Crabtree and Roaf, JJ., agree.