Jeff Eugene Peltier v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

JEFF EUGENE PELTIER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-565

November 28, 2001

APPEAL FROM THE LITTLE RIVER

COUNTY CIRCUIT COURT

[CR2000-50]

HONORABLE TED C. CAPEHEART,

CIRCUIT JUDGE

AFFIRMED

Jeff Peltier was convicted of rape and attempted rape of his nine-year-old stepdaughter and was sentenced to twelve years in the Arkansas Department of Correction. On appeal, he argues that the trial court abused its discretion in allowing the prosecutor to use leading questions when questioning the victim and erred in denying his motion for directed verdict on the offense of rape. We affirm.

At trial, Misty Woodruff, the victim's mother and appellant's ex-wife, testified that she came home on June 17, 2000, to find her husband on his knees, completely naked, in the middle of their bed over her daughter. She said that he was moving his hips back and forth in a stroking movement, and she asked him what he thought he was doing. He told Woodruff that he did not penetrate the victim; Woodruff jumped on him and the victim ran out of the room. She said that appellant's penis was fully erect at this time, and that the

victim was wearing a t-shirt but no panties. She told the victim to call 911, and while she was on the telephone reporting the incident, she stated that appellant was telling her to hang up the phone, that he was sorry.

The victim testified that on June 17, appellant had taken her back to his bedroom, taken his clothes off, taken her shorts off, and started "rubbing his privates on mine." She stated that he had previously put his finger in her privates and that it hurt. She also said that he had put his tongue in her privates.

Patsy DeHart, dispatcher for the Little River Sheriff's Department, testified that she had taken the 911 call from the victim's mother; that the mother was very upset; and that she told her that her husband was raping her daughter. DeHart said that she heard a male voice in the background asking her to hang up the phone; that he was sorry; and not to say anything else.

Danny Hallett, a sergeant with the Ashdown Police Department, testified that he responded to the call, where he found appellant in the doorway wearing a pair of shorts. Officer Hallett said that he asked appellant if he had been "messing with the girl," to which appellant had replied, "I never penetrated her."

One of appellant's arguments is that the trial court erred in denying his motion for directed verdict on the charge of rape.1 Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). When the sufficiency of the evidence is challenged, the appellate court considersonly that evidence which supports the guilty verdict, and the test is whether there is substantial evidence to support the verdict. Id. Substantial evidence is evidence of such certainty and precision as to compel a conclusion one way or another. Id. Double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to other assignments of circuit court error. Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001).

Appellant's argument is not preserved for appeal. At the close of the State's evidence, appellant's attorney made the following motion:

Your Honor, I move for a directed verdict based on the fact that there's not enough evidence here of rape to go any further. I think that in light of the testimony, which you've been here, you've heard everything. I don't have to repeat all that, but I'm saying that there's really no evidence for a rape charge here and I ask for a directed verdict.

After appellant presented his case and rested, and the State presented its rebuttal witness, appellant's attorney said, "Well, then at this time, Your Honor, the defendant rests and I renew my motion for directed verdict in that certainly there's not enough evidence here for the issue of rape to go to the jury and also there's not enough evidence here for the attempted rape."

Rule 33.1(a) of the Arkansas Rules of Criminal Procedure provides, "In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor." Subsection (c) of that rule provides, in pertinent part, "A motion for directed verdict . . . must specify the respect in which theevidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense." Appellant's directed-verdict motions did not specify the respect in which the evidence was deficient; therefore, they did not preserve the sufficiency of the evidence argument for appellate review.

Notwithstanding the fact that the issue is not preserved for appellate review, there is sufficient evidence to support appellant's conviction for rape. A person commits rape if he engages in deviate sexual activity with another person who is less than fourteen years old. Ark. Code Ann. § 5-14-103(a)(4) (Repl. 1997). "Deviate sexual activity" is defined, in pertinent part, as "any act of sexual gratification involving the penetration, however, slight, of the labia majora . . . of one person by any body member or foreign instrument manipulated by another person." Ark. Code Ann. § 5-14-101(1)(B) (Repl. 1997). The victim testified that appellant put both his finger and his tongue in her privates and that it hurt when he put his finger in her privates. The testimony of the rape victim satisfies the substantial-evidence requirement in a rape case. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). Furthermore, the testimony of the victim's mother, the dispatcher who took the 911 call, and the police officer who responded to the call also support appellant's rape conviction.

Appellant's other argument is that the trial court abused its discretion in allowing the prosecutor to use leading questions while questioning the victim. However, appellant failed to object to the prosecutor's mode of questioning until over midway through directexamination. The law is well settled that to preserve an issue for appeal, a defendant must object at the first opportunity. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). For this reason, this issue is not preserved for appellate review.

Nevertheless, the trial court did not abuse its discretion in allowing the prosecutor to ask the nine-year-old witness leading questions. A prosecutor may use leading questions in cases involving young children who are competent to testify, subject to the trial court's sound discretion. Johnson v. State, 318 Ark. 425, 886 S.W.2d 584 (1994). In the present case, there was no objection to the victim's competency to testify, and the trial judge stated upon appellant's eventual objection that he would allow the prosecutor to ask the victim leading questions due to her age. We find no abuse of discretion in such an allowance.

Affirmed.

Griffen, J., agrees.

Pittman, J. concurs.

1 Appellant is not appealing his attempted-rape conviction.