Douglas Mack Clenney, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION IV

DOUGLAS MACK CLENNEY, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-985

June 5, 2002

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

[NO. CR 2000-70 I]

HONORABLE JOHN HOMER WRIGHT, CIRCUIT JUDGE

AFFIRMED

Appellant, Douglas Mack Clenney, Jr., was convicted of one count of sexual abuse in the first degree, one count of rape, and two counts of introduction of a controlled substance into the body of another person. He received a sentence of twenty years' imprisonment on the sexual abuse conviction, and he was sentenced to sixty years' imprisonment on each of the remaining counts, with all of the sentences to run concurrently. On appeal, he candidly admits that he did not preserve for appellate review a challenge to the sufficiency of the evidence to support the rape conviction. However, he challenges the sufficiency of the evidence to support the other charges. We affirm.

Appellant's stepdaughter, A.D., testified that in November of 1998, she and S.C., her half-sister, who is appellant's daughter and the rape victim, accompanied appellant to a house in Jessieville. A young boy at the residence suggested that the two girls go fishing with him, and appellant went with them to hunt for crystals. While A.D. was fishing, she

heard appellant call her name. When she and appellant walked away from the others, appellant told her he had something to give to her, but that she could not tell anyone. Appellant bent her arm behind her back, held her arm in place with his knee, pried her mouth open, and poured a white powder out of a plastic bag and into her mouth. A.D. said the powder was bitter, fizzed and dissolved quickly, and burned her chest and throat. Appellant gave her some water and told her that the powder was crystal methamphetamine. She testified that she previously had seen something like this powder around the house, where appellant also left his needles and "little rocks" in his cigarette packages.

Appellant asked her to sit down in front of him, and A.D. refused. She observed that appellant was "playing with himself." A.D. testified that she was feeling good and "on an extreme high," but fifteen to twenty minutes later, she began to feel ill. She testified that appellant also "shot up, twice," using a spoon, a needle, a lighter, and some off-white liquid. S.C. testified that after appellant returned from walking with A.D., he asked S.C. to search for crystals with him. Appellant later asked S.C. if she "wanted to do a hundred percent crystal," and she declined. S.C. testified that she had seen methamphetamine at the house before. Appellant poured it into her mouth, telling her not to spit it out and waste his money. S.C. said that the substance dissolved quickly and felt as if it was "sizzling." She stated that it tasted bad and made her want to vomit. She also testified that afterward she felt "really messed up" and was "energized big time." Appellant asked her if she wanted to have intercourse, and she refused. Appellant ordered her to sit down, and he touched her breasts and penetrated her vagina with his fingers. Appellant does not contest on appeal thesufficiency of the evidence to support the rape charge.

A.D. testified that after they returned to the house, her stomach was upset, and she threw up and passed out. S.C. and another girl helped her to a bed, and she went to sleep. When she awoke, appellant was sitting on the side of the bed. The bed cover was down, her pants were undone and moved down, and her underwear was in an awkward position. Appellant stood up, buttoned his pants, and said it was time to go home. They left the residence fifteen or twenty minutes later.

The State also offered testimony from Willard Webb, who had shared a jail cell with appellant. Appellant told Webb that two days before Thanksgiving he had taken some chemicals to Jessieville to make methamphetamine and then returned four days later to pick up the methamphetamine and to fish and pick up crystals, taking A.D. and S.C. with him. Appellant stated that they were taking methamphetamine, and he put methamphetamine in the girls' cokes because it was "like an aphrodisiac to a woman." According to Webb, appellant further stated that they were fishing and nobody else was around and he fondled [A.D.'s] breasts, but he saw the "fright in her eyes" and he knew he had gone too far. Appellant also told Webb that he fondled S.C.'s breasts and inserted his finger into her vagina.

Appellant was convicted of first-degree sexual abuse, which required proof that he engaged in an act of sexual contact with A.D. while she was incapable of consent because she was physically helpless. See Ark. Code Ann. § 5-14-108(a)(2) (Repl. 1997)(repealed 2001). For our purposes, "physically helpless" is defined as "unconscious or is physicallyunable to communicate lack of consent...." Ark. Code Ann. § 5-14-101(5) (Repl. 1997) amended by Ark. Code Ann. § 5-14-101(5) (Supp. 2001). "Sexual contact" is defined as "any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of a person or the breast of a female...." Ark. Code Ann. § 5-14-101(8) (Repl. 1997) amended by Ark. Code Ann. § 5-14-101(8) (Supp. 2001).

Appellant argues on appeal that the evidence was insufficient to support the first-degree sexual-abuse conviction. He notes that A.D. did not testify regarding any sexual contact, and Webb's testimony regarding what he was told by appellant did not meet the elements of the crime with which he was charged, that is, sexual contact with A.D. while she was incapable of consent because she was physically helpless. He observes that, according to Webb, the sexual contact occurred while they were fishing and A.D. had fear in her eyes, suggesting that she was not physically helpless as a result of being unconscious or physically unable to communicate lack of consent.

We disagree with appellant. "Substantial evidence is evidence that is of enough force and character to compel reasonable minds to reach a conclusion without resorting to suspicion and conjecture." Miller v. State, 318 Ark. 673, 675, 887 S.W.2d 280, 282 (1994). And "it is the jury's duty to determine the credibility of the witnesses and to resolve any inconsistencies." Id. at 676, 887 S.W.2d at 282. Further, "[a] jury is free to believe part of the evidence before it and reject other parts." Misskelley v. State, 323 Ark. 449, 462, 915 S.W.2d 702, 709, cert. denied, 519 U.S. 898 (1996). According to Webb, appellant told him that he engaged in sexual contact with A.D. A.D. testified that when she awoke from herdrug-induced sleep, her clothes were in disarray, and appellant was sitting next to her on the bed. By believing some evidence before it and rejecting other evidence, the jury could have concluded, without resorting to speculation or conjecture, that the sexual contact described by appellant to Webb occurred prior to A.D. waking, and the sexual contact accounted for her clothing being in disarray. The discrepancies between A.D.'s testimony and Webb's description of what he was told by appellant, namely, that the sexual contact occurred while they were fishing and that A.D. was frightened, were inconsistencies for the jury to evaluate. We affirm appellant's conviction.

Appellant also challenges the sufficiency of the evidence to support the two counts of introduction of a controlled substance into the body of another person. Appellant cites a case that in turn cites Ark. Code Ann. § 16-89-111(d) (Supp. 2001), which provides that "[a] confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed." He argues that, aside from his "confessions" to the two victims and to Webb, there was "no competent evidence in the record" that the substance he gave to A.D. and S.C. was methamphetamine. Thus, he concludes that, aside from his "confessions," there was no evidence that "a crime was, in fact, committed."

Appellant, however, did not present to the trial court his argument that his "confessions" were not corroborated by proof that the offense was committed. Instead, he argued as follows:

I don't think there's been any evidence, other than the ... testimony of thevictims themselves. There's been no physical evidence, there's been no drug testing that was introduced, there was nothing to indicate that anything was ingested or caused to be ingested into their bodies.

In his argument to the trial court, appellant did not mention the corroboration statute, the principle that it embodies, relevant case law, or even the word "confession." Rather, in his motion, appellant argued that the testimony of the victims was insufficient to support the convictions, without arguing that their testimonies were tantamount to a reiteration of his confessions and that those confessions had to be corroborated. We have previously held that for an argument to be preserved for appeal, an objection must be of sufficient clarity to give the trial court a fair opportunity to discern and consider the argument, and we will not consider arguments made for the first time on appeal. Weaver v. State, 56 Ark. App. 104, 107, 939 S.W.2d 316, 317 (1997). Because appellant failed to raise this specific argument below, it is not preserved for appellate review. We affirm his convictions.

Affirmed.

Vaught and Roaf, JJ., agree.