Melvin Washington v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION I

MELVIN WASHINGTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-00018

September 5, 2001

APPEAL FROM THE DREW COUNTY CIRCUIT COURT, SIXTH DIVISION

[NO. CR 99-137-2]

HON. SAM B. POPE,

CIRCUIT JUDGE

AFFIRMED

A Drew County jury convicted appellant Melvin Washington of manslaughter, a class C felony, and rape, a class Y felony. Appellant received a total sentence of forty years' imprisonment in the Arkansas Department of Correction. On appeal, Washington contends that the State failed to produce sufficient circumstantial evidence to prove the element of forcible compulsion necessary to sustain his conviction of rape. We disagree and affirm the decision of the trial court.

The victim, Mr. Ervin Meadows, had been living in a home in Monticello, Arkansas, that was owned by a friend of his, Robert Davis. However, Meadows had been evicted from the home a few days before his death, due to a threat from the fire department that thehome was subject to condemnation. On March 16, 1999, Mr. Davis was raking leaves at the residence previously occupied by Meadows, and discovered Meadows's dead body. The victim had a plaid shirt over his head, and his pants below his knees, but was otherwise naked.

An autopsy of the deceased was conducted by the chief medical examiner, Dr. William Sturner, at the Arkansas State Crime Laboratory. Dr. Sturner testified that the cause of death was determined to be a homicide, due primarily to a contusion to the brain. A secondary cause of death, Dr. Sturner opined, was due to the numerous cuts and scrapes throughout the victim's body, along with various diseases associated with old age. The medical examiner testified that semen was found in Meadows's rectum. He testified that the presence of the semen and the chin abrasions on the corpse suggested that the victim had been sexually assaulted. Specifically, he noted that the abrasions on the underside of the chin could have been caused by "pressing with [a] finger." Dr. Sturner further testified that there was no tearing of the anal tissue that is often associated with forcible rape, but he reasoned that this could be explained by a blow being directed to the head prior to the rectal penetration. He indicated that after a concussion, the muscles of the body become flaccid or lax, and the relaxed muscles would be less susceptible to tearing or irritation. Finally, Dr. Sturner testified that the victim had multiplelacerations to the head consistent with blows from a blunt or semi-rounded instrument.

Appellant was developed as a suspect after a friend of the victim testified that appellant frequently visited the home the deceased was living in to carry out "dates" with a lady friend. Appellant was arrested on a warrant for old fines, and while in custody submitted to a request for a saliva sample. The saliva sample matched the DNA from the semen. Trial testimony from the investigating officer established that when confronted with the results of the DNA testing, appellant admitted knowing the victim and visiting him the day before the murder, but denied ever having sex with the victim. Appellant did not testify at trial; however, in his appeal challenging the sufficiency of the evidence to support his rape conviction, appellant's counsel concedes that he in fact did have sexual intercourse with the deceased, but contends that the intercourse was consensual. The State first argues that the appellant's appeal should not be considered by this court because he only abstracted the trial court's ruling denying his directed verdict motion on the charge of capital felony murder, "and fatally omits the ruling on the separate rape charge from which he now appeals." The State correctly reminds this court that a record on appeal is limited to that which is properly abstracted, Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997); however, when the appellant's abstract is sufficient to determine that the directed verdict motions were made, and that the arguments on appeal were argued below, this court may review the sufficiency of the evidence on appeal. Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993). In the case at bar, the abstract demonstrates that appellant made the proper objections and arguments below, therefore the merits of the appellant's argument that the trial court erred in failing to grant a directed verdict on the charge of rape will be considered. In a challenge to the sufficiency of the evidence, this court will affirm the conviction if there is any substantial evidence to support it. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another, without mere speculation or conjecture. Id. Notably, the evidence may be either direct or circumstantial. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. at 301, 808 S.W.2d at 322 (quoting Trotter v. State, 209 Ark. 269, 719 S.W.2d 268 (1986)). Whether the evidence excludes every other reasonable conclusion is left for the jury to determine. Davis v.State, 314 Ark. 257, 863 S.W.2d 259 (1993), cert. denied 511 U.S. 1026 (1994). Pursuant to Arkansas Code Annotated section 5-14-103(a)(1) (Repl. 1997), "[a] person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion." While appellant does not contest that his semen was found in the victim's anus, he argues that the State failed to prove the element of forcible compulsion. Forcible compulsion is defined as physical force, express or implied, of death or physical injury to or kidnaping of any person. See Ark. Code Ann. § 5-14-101(2) (Repl. 1997). The supreme court has defined "physical force" as any bodily impact, restraint or confinement, or threat thereof. Strawhacker v. State, 304 Ark. 726, 731, 804 S.W.2d 720, 723 (1991). The test used to determine whether force was employed 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).

In our examination of the sufficiency of the evidence presented by the State, we are particularly persuaded by the fact that the appellant admitted to seeing the victim the day prior to his death, but denied having sexual intercourse with the victim, even after he was informed of a DNA match of his saliva to the semen found in the victim's anus. See Young v. State, 316 Ark.225, 246, S.W.2d 373 (1994) (holding that a defendant's false and improbable statements explaining suspicious circumstances against him are admissible as proof of guilt). Also, the fact that the victim was discovered with his pants around his ankles and his shirt over his head are strong indications of forcible compulsion. Finally, we are influenced by the physical evidence presented during the medical examiner's testimony. Dr. Sturner testified that the victim had been hit with a blunt object, that the appellant's semen was found in the victim's anus and was deposited near the time of the victim's death, and that the contusions and bruises on the neck were consistent with fingers being pressed around the underside of the victim's chin.

The trial court found that there was sufficient evidence to support the elements of the rape charge, and the jury concluded that the physical and circumstantial evidence presented by the State was compelling enough to return a guilty verdict against appellant. We agree and conclude that the circumstantial and direct evidence presented was of a sufficient nature to support the trial court's denial of appellant's motion for a directed verdict as to his rape charge.

Affirmed.

Hart and Neal, JJ., agree.