Jimmy Ray White v. State of Arkansas

ar02-576

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION IV

CACR02-576

March 19, 2003

JIMMY RAY WHITE AN APPEAL FROM MONTGOMERY

APPELLANT COUNTY CIRCUIT COURT [CR01-24]

V. HON. GAYLE FORD, JUDGE

STATE OF ARKANSAS AFFIRMED IN PART;

APPELLEE REVERSED IN PART

Jimmy Ray White appeals from a jury verdict finding him guilty of attempted kidnapping and attempted rape. He was sentenced to thirty years in prison on each charge, with the sentences to be served consecutively. Appellant argues that the trial court erred by denying his motions for a directed verdict because the State's evidence was insufficient to sustain his convictions. We affirm the attempted rape conviction. However, we agree with appellant that there was not sufficient evidence to support the attempted kidnapping conviction. Thus, we reverse appellant's conviction for attempted kidnapping.

Appellant was arrested and charged with attempt to commit rape and attempt to commit kidnapping of A.U. who was seven years old at the time. The State's information alleged that on or about June 16, 2001, appellant purposely engaged in conduct thatconstituted a substantial step in a course of conduct intended to culminate in the offense of rape and that appellant purposely engaged in conduct that constituted a substantial step in a course of conduct intended to culminate in the offense of kidnapping with the purpose of engaging in sexual intercourse, deviate sexual activity, or sexual contact with A.U.

At trial, A.U. testified that her mother took her to swim in the Caddo River. While she played in the river, she noticed appellant's truck parked on the bank with its truck door open and music playing. A.U. testified that appellant was in the river and asked her to come over toward him, which she did. A.U. did not recognize appellant as her father's old friend. Once she reached appellant, A.U. stated that he grabbed her shoulders and "on the front" and "on the back of my privacy parts or what we might say is my buttocks." Appellant then said to her, "I'm going to fuck you." Appellant held onto A.U. for about a minute, preventing her from leaving. However, after A.U. kicked appellant, he released her and she ran to her mother. A.U. claimed that appellant started running to his truck once he saw her mother coming down the bank.

Karen Upton, A.U.'s mother, testified that she was on the bank of the river and saw appellant "holding [A.U.] under the water with his hands, not her face under the water but holding down there." A.U. was struggling to get away from him. Upton started moving toward A.U., but A.U. was able to break loose, running out of the river to her. Upton testified that appellant started running toward his truck as she headed to confront him about the incident. When she approached appellant at his truck, his only response to her was "What." Then, he drove off. Upton testified that she asked A.U. why appellant had beenholding her and if he had said anything to her. A.U. told her that appellant said, "I'm going to fuck you." According to Upton, she did not suggest the "F" word to A.U., but only explained to her what it meant. Upton also mentioned that although appellant was a friend of her ex-husband, she did not recognize him that day.

Appellant testified that he had been a friend of A.U.'s father most of his life and had known A.U. since she was an infant. Appellant said that he went to the Caddo River that evening to cool off and was sitting in the water in his long Bermuda shorts and t-shirt when A.U. came over to him and said, "Hello, Jimmy Ray." A.U. splashed him with water, he splashed her back, and then she splashed him again. Appellant claimed that he told A.U. that she better quit splashing him or else he was going to "duck" her. When A.U. splashed him again, he grabbed her hand and said, "I told you, I'm going to duck you," and then let her go. A.U. swam off. According to appellant, nothing else happened, and he did not restrain A.U. in any way. He admitted, however, running to his truck as Karen Upton was coming toward him hollering and screaming, but claimed he was running because he was barefoot and walking across hot rocks.

David Upton, A.U.'s father, testified that he was a friend of appellant, but that neither he nor A.U. had seen appellant in the five years prior to this incident. David Upton also mentioned that a few years ago he and appellant had a disagreement regarding an incident that involved appellant and one of Upton's other daughters, who was twelve at the time, and Danny Crump's daughter.

At the end of the State's case-in-chief and again at the close of all of the evidence, appellant made timely motions for a directed verdict as to both charges, which the trial court denied. Appellant was found guilty of both attempt to commit rape and attempt to commit kidnapping and was sentenced to thirty years on each charge to be served consecutively. Appellant appeals, arguing that the trial court erred in denying his motions for a directed verdict.

A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999). When a defendant challenges the sufficiency of the evidence, we review the evidence in the light most favorable to the State, considering only the evidence that supports the guilty verdict, and will affirm the conviction if it is supported by substantial evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). Evidence is substantial, whether direct or circumstantial, if it is of sufficient force and character that, with reasonable certainty, it will compel a conclusion one way or the other and pass beyond mere speculation or conjecture. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). We defer to the jury's determination on the matter of witness credibility. Jones v. State, 52 Ark. App. 179, 916 S.W.2d 766 (1996). Any inconsistencies in the witnesses' testimony are for the jury to resolve. Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998).

I. Attempted Rape Conviction

We first consider appellant's argument that the trial court erred by not granting his motion for a directed verdict on the charge of criminal attempt to commit rape because there was not sufficient evidence that he attempted to engage in sexual intercourse or deviatesexual activity with A.U. A person commits rape if he engages in sexual intercourse or deviate sexual activity with a person who is less than fourteen years of age. Ark. Code Ann. § 5-14-103 (Supp. 2001). To prove attempted rape, it must be shown that the defendant purposely engaged in conduct that constituted a substantial step in a course of conduct intended to culminate in the commission of rape. Ark. Code Ann. § 5-3-201 (Repl. 1997); see also Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997). Proof of a defendant's intention to have sexual intercourse with a victim is not sufficient unless an intention to accomplish that purpose by force may be ascertained from acts or words connected with the assault and there is some overt act toward the accomplishment of that purpose. Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988). To be considered a substantial step toward the commission of a rape, a defendant's overt acts must be beyond mere preparation, and "must reach far enough toward accomplishment, toward the desired result, to amount to the commencement of consummation." 75 C.J.S. Rape § 34 (2002). That is, conduct is not a substantial step unless it is strongly corroborative of a person's criminal purpose. Ark. Code Ann. § 5-3-201(c) (Repl. 1997).

Specifically, appellant argues that the State did not establish that he engaged in conduct that could be construed a substantial step toward raping A.U. He contends that he did not try to carry A.U. out of the water; that he did not try to remove A.U.'s clothing; and that the entire incident only lasted about a minute. However, in determining whether a person has taken a substantial step toward the commission of a rape, the focus is not on what remains to be done, but on whether there has been some overt act beyond mere preparationin the furtherance of the attempt to commit that offense. 75 C.J.S. Rape § 34 (2002). The overt act need not be the last proximate act to the consummation of the offense attempted. Id.

Here, the evidence presented by A.U. demonstrates that appellant's actions constituted a substantial step in a course of conduct intended to culminate in the commission of rape. He beckoned for A.U. to come to him, grabbed her and would not let go, touched her in private areas, and stated he was going to "fuck" her. We hold that this evidence of appellant's conduct warranted denial of his motions for a directed verdict on the charge of attempted rape and is sufficient to sustain the jury's verdict.

II. Attempted Kidnapping Conviction

Appellant also argues that the trial court erred in not granting his motions for a directed verdict on the charge of criminal attempt to commit kidnapping because the State did not prove the elements of the crime. Under Ark. Code Ann. § 5-11-102 (Repl. 1997) a person commits the offense of kidnapping if, without consent, he restrains another person as to interfere substantially with her liberty with the purpose of engaging in sexual intercourse, deviate sexual activity, or sexual contact with her. To prove attempted kidnapping, it must be shown that the defendant purposely engaged in conduct that constituted a substantial step in a course of conduct intended to culminate in the commission of kidnapping. Ark. Code Ann. § 5-3-201 (Repl. 1997). However, to support a separate charge for kidnapping in a case where a rape or attempted rape has been alleged also, it must be shown that the defendant employed some greater restraint on the victim than thatnormally incidental to rape. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996); Summerlin v. State, supra; Wofford v. State, 44 Ark. App. 94, 867 S.W.2d 181 (1993).

Appellant challenges his attempted kidnapping conviction on four grounds: (1) there was insufficient evidence that he purposefully restrained A.U. or interfered with her liberty; (2) there was not sufficient evidence that he had the purpose of engaging in sexual intercourse, deviate sexual activity, or sexual contact with A.U.; (3) there was not sufficient evidence of a substantial step in a course of conduct intended to culminate in kidnapping of A.U.; and (4) there was not sufficient evidence of additional restraint necessary to support a separate conviction for kidnapping. We believe that appellant's last two arguments have merit and discuss them below.

We first consider appellant's argument that the evidence was insufficient to find that he took a substantial step in a course of conduct intended to culminate in kidnapping. The record reflects that appellant grabbed A.U. while she was in the water. However, there is no evidence that appellant covered A.U.'s mouth to prevent her from screaming; that he pushed her under water; or that he even attempted to move her out of the water. Without more, appellant's act of grabbing A.U. is not enough to be considered a substantial step toward the act of kidnapping her. Thus, based on these facts, the jury could only speculate as to appellant's actual intent.

Appellant also argues that the evidence was insufficient to support a separate kidnapping conviction because the restraint used did not exceed that normally incidental tothe crime of attempted rape. 1 A.U. testified that appellant grabbed her and held her with his hands. As stated above, to be convicted of a separate charge of kidnapping when rape or attempted rape also is alleged, there must be proof that defendant used some greater restraint than that normally incidental to rape. The degree of restraint that is normally incidental to rape is that which is necessary to consummate the act, and any additional restraint supports a conviction for kidnapping. Lee v. State, supra; Wofford v. State, supra. Among the factors that courts have considered in determining whether a separate kidnapping conviction is supportable include whether a defendant's movement or confinement of the victim (1) prevented the victim from summoning assistance; (2) lessened the defendant's risk of detection; or (3) created a significant danger or increased the victim's risk of harm. Lee v. State, supra.

In the instant case, there is no evidence that appellant did more than grab and hold A.U., or that he grabbed her in a manner that prevented her from summoning assistance. Further, appellant, A.U., and her mother testified that there were several adults on the river bank. A.U.'s mother testified that A.U. was in her eyesight the entire time. These factors indicate that appellant's restraint of A.U. did not lessen his risk of detection. Finally, thereis no evidence that appellant restrained A.U. in a way that created a significant danger or increased the risk of harm to her. Clearly, the facts do not show that the restraint employed by appellant exceeded what is normally incidental to the commission of rape. Therefore, we hold that the trial court erred in denying appellant's motions for a directed verdict on the charge of attempted kidnapping because the proof was not sufficient to support the conviction.

Affirmed in part; reversed in part.

Stroud, C.J., and Hart, J., agree.

1 The State contends that this argument is not preserved for appellate review. We disagree. At the close of the State's case, appellant's counsel moved for a directed verdict as to the charge of kidnapping and argued that the State had not established "the elements of conduct constituting a substantial step or restraint or purpose or sexual intercourse or deviate sexual activity or sexual contact." Appellant's counsel again moved for a directed verdict at the close of all the evidence stating that, "there was no elements of that offense established, no conduct that constituted a substantial step to restrain her for the purpose of engaging in sexual intercourse or deviate sexual activity or sexual contact with her." We believe that counsel's language in these motions was sufficient to preserve this argument for our review.