George All v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

GEORGE ALL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-38

SEPTEMBER 5, 2001

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. 2000-59]

HONORABLE JOE MICHAEL FITZHUGH, CIRCUIT JUDGE

AFFIRMED

A jury sitting in Sebastian County Circuit Court convicted the appellant, George All, of rape. Appellant was sentenced to ten years' imprisonment in the Arkansas Department of Correction. On appeal, appellant argues that the trial court erred in denying his motion for a directed verdict.

A directed verdict motion is a challenge to the sufficiency of the evidence. Pond v. State, 69 Ark. App. 346, 14 S.W.3d 525 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Dye v. State, 70 Ark. App 329, 17 S.W.3d 505 (2000). In determining whether a finding of guilt is supported by substantial evidence, we review the evidence, including any that may have been erroneously admitted, in the light most favorable to the verdict. Id. Substantial evidence is that which is of sufficient force that it will, withreasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000).

Appellant was found guilty of raping B.R., a nursing home resident, in violation of Ark. Code Ann. § 5-14-103(a)(2) (Repl. 1997). Section 5-15-103(a)(2) prohibits a person from engaging "in sexual intercourse or deviate sexual activity with another person . . . not his spouse who is a resident of a hospital, nursing home, human development center, or other similar facility, and who is incapable of consent because he is mentally defective or mentally incapacitated." The State presented evidence that on January 10, 2000, appellant climbed into B.R.'s nursing home bed and put his penis into her mouth against her will. Appellant also placed his fingers "inside of B.R.."

Appellant's sole argument on appeal is that the State failed to prove that B.R. was mentally defective or mentally incapacitated at the time of the incident as defined by Ark. Code Ann. § 5-14-101(3)(A) (Repl. 1997). Section 5-14-101(3)(A) provides that a person is mentally defective when he/she "suffers from a mental disease or defect which renders him incapable of understanding the nature and consequence of sexual acts." Arkansas Code Annotated § 5-14-101(3)(B) states that "[a] determination that a person is mentally defective shall not be based solely on his intelligence quotient."

The State presented the testimony of Dr. Joe Dorzab who was declared an expert in the field of psychiatry. Dr. Dorzab testified that B.R. suffered from cerebral palsy, which made her "incompetent to make important decisions regarding her body." Dr. Dorzab

testified that B.R.'s intellectual ability fell within the bottom one percent of the general population and that she was mentally retarded. Dr. Dorzab stated that B.R. was "seriously impaired all the time." He indicated that B.R. was capable of understanding the "basic mechanics of the birds and the bees," but that she was incapable of "the kind of thinking a person needs in order to know their own boundaries and protect themselves well." Appellant argues that Dr. Dorzab's opinion of B.R.'s mental state was formed after January 9, 2000, the date of the alleged rape, and thus there was no evidence presented as to B.R.'s mental state on January 9, 2000. We find this argument unpersuasive as Dr. Dorzab testified that B.R. was "seriously impaired all the time," and thus there was sufficient evidence for the jury to conclude that B.R. was mentally defective on January 9, 2000. We hold that the trial court did not err in denying appellant's motion for a directed verdict.

Affirmed.

Jennings and Baker, JJ., agree.