Juan Perez-Herrera v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

JUAN PEREZ-HERRERA

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-239

October 1, 2003

APPEAL FROM THE SALINE

COUNTY CIRCUIT COURT,

[CR01-470-3]

HONORABLE GRISHAM A.

PHILLIPS, JR., CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

Appellant Juan Perez-Herrera was convicted in a bench trial of attempted rape and residential burglary. He received a sentence of ten years in the Arkansas Department of Correction for the rape conviction and a sentence of six years for the residential-burglary conviction, with the sentences to be served concurrently. On appeal, he argues that the out-of-court identification of him by the victim was conducted in such a biased manner that it was improperly suggestive, and that the trial court erred in admitting both the out-of-court identification and the in-court identification of him by the victim; he also contends that there was insufficient evidence to support the attempted-rape conviction.1 We affirm appellant's convictions.

A directed-verdict motion is a challenge to the sufficiency of the evidence. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). Preservation of appellant's right against double jeopardy requires that appellate courts consider the challenge to the sufficiency of the evidence before alleged trial error is considered even though the issue was not presented as the first issue on appeal. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. Resolution of conflicts in testimony and assessment of witness credibility is for the fact-finder. Id.

At trial, the victim testified that on Sunday, July 15, 2001, she had dressed for bed and was lying on her sofa, dozing, when she heard a dog begin barking and then heard a loud noise that seemed to come from one of her bedrooms. She said that a man then stuck his head through the door and looked into the living room. She said that she had not given the man permission to come into her house, and she asked him what he wasdoing there; he answered her in a foreign language that she did not understand. The victim then testified that the man came into the living room, pushed her down onto the sofa, put his hands up the shorts of her pajamas, and began to tear her underwear, which fell off her body when she was able to get up. She said that they struggled for five or ten minutes; she told him to get out, and he continued to speak in a foreign language. She said that she tried to scream for the majority of the time appellant was on top of her, but he put his hands on her throat and over her mouth. At some point the appellant said something to her about "sucking his dick." Although her statement to the police on the night of the incident said that appellant asked her if she wanted to "suck his dick," she testified at trial that it was more of a demand, and she did not recall exactly what was said. The victim eventually was able to get appellant to the front door and screamed, "Get out." Appellant was unable to unlock the door and told the victim to open it, which she did; appellant left, and the victim ran to her neighbor's house for help.

Appellant took the stand in his own defense, stating that he was drunk on the night in question. He said that while he may have made an inappropriate remark to the victim because he was drunk, he did not remember it and did not remember doing anything that the victim had accused him of doing.

On appeal, as he did at trial, appellant argues that there is insufficient evidence to convict him of attempted rape because the State failed to present evidence showing that he purposely engaged in conduct that constituted a substantial step toward the commission of the offense of rape. We disagree.

A person commits the offense of rape if he "engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion." Ark. Code Ann. § 5-14-103(a)(1) (Repl. 1997) (superseded).2 "Deviate sexual activity" is defined as "any act of sexual gratification involving: (A) The penetration, however slight, of the anus or mouth of one person by the penis of another person; or (B) The penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person." Ark. Code Ann. § 5-14-101(1) (Repl. 1997). A person attempts to commit an offense if he "[p]urposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be." Ark. Code Ann. § 5-3-201(a)(2) (Repl. 1997). Conduct is not a substantial step under the attempt statute "unless it is strongly corroborative of the person's criminal purpose." Ark. Code Ann. § 5-3-201(c) (Repl. 1997).

Appellant contends that his entry into the victim's residence; the struggle on the couch with the victim; the tearing of her underwear; the act of placing his hands on her throat and over her mouth; and the statement about "sucking his dick" do not constitute a substantial step toward the offense of rape. He argues that there was no proof that he touched the victim in a sexual manner or attempted to penetrate her in any way; that either party had their sexual organs displayed; that the victim's panties were removed and sexual contact took place; that he was sexually aroused; that any penetration was attempted; or that any type of deviate sexual activity was attempted. Furthermore, appellant points to the victim's testimony that he voluntarily left her residence at her request. He argues that this evidence shows nothing more than an assault, and that the statement about "sucking his dick" was not a substantial step toward the commission of rape because the victim declined his offer and he left the premises.

This court has held that "proof of an assailant'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 taken toward the accomplishment of that purpose." Hagen v. State, 47 Ark. App. 137, 139, 886 S.W.2d 889, 890 (1994). In Hagen, this court affirmed appellant's conviction for attempted rape when the evidence indicated that appellant covered the victim's mouth; grabbed her throat; got her on the floor; rubbed his crotch against her; stated his intention to have sex with the victim; and threatened her with serious harm if she did not cooperate. We also held in Hagen that the attempted removal of the victim's clothing is not essential to a finding of attempted rape.

Appellant attempts to distinguish Hagen from the facts of his case, and while there are factual differences, they do not require reversal of appellant's conviction for attempted rape. It is true that in the case at bar appellant did not rub his crotch on the victim or state his intent to have sex with the victim as did the appellant in Hagen; however, he did rip the victim's underwear to the extent that it fell off of her body when she was able to get up from the couch during the struggle, and he told the victim to "suck his dick." Appellant's argument that such a statement was a "request" for sexual contact instead of a demand after he had broken into her house is completely implausible. Furthermore, the appellant in the present case, as in Hagen, also grabbed his victim's throat, put his hand over her mouth, and engaged in a protracted struggle with her. We hold that there is sufficient evidence to support appellant's conviction for attempted rape.

Appellant's other point on appeal is that the victim's out-of-court identification of him was conducted in such a biased manner that it was improperly suggestive, and that the trial court erred in admitting the out-of-court identification and the in-court identification of him by the victim. In a hearing on appellant's motion to suppress the victim's out-of-court identification of him, the victim testified that on the night of the crime she was able to get a good look at the perpetrator because her living room was fairly well lit, his face was six to eight inches from hers during the struggle, and she focused on his face during the attack for a good ten minutes. She identified appellant during the hearing as the person who had attempted to rape her. She said that she knew appellant from seeing him three or four times in her neighborhood prior to the attack, with the last time being only four to four and one-half hours before the attack. The victim said that appellant would come up to her front porch and ask for cigarettes. She testified that appellant drove a green Neon with a distinctive orange mark across the back, and that she associated appellant with a particular house in the neighborhood because that was the only house where he parked his car. She stated that on the night of the attack, the police took her to that particular house and shined a spotlight on all of the men at the house, but that appellant was not there.

One week after the attack, on July 22, the victim's boyfriend told her that he had seen appellant's car at the house and that appellant was there now. The victim called the police, and when they arrived, the victim described the house and the car. The police made contact with the three people at the house, and the victim positively identified appellant as her attacker. She said that there were three men, that appellant was the only person who was clean shaven, and that was how she distinguished appellant from the others. The victim testified that the police did not suggest in any way which person she should pick.

Detective Patrick Baker of the Benton Police Department testified that he was called to the victim's house with regard to a burglary suspect that was seen at a house further down the road. Detective Baker and another officer proceeded to the house identified by the victim, where two Hispanic males were found sitting on the back steps of the residence, and a Hispanic female was inside the house; none of them understood English. Detective Baker testified that he returned to the victim's house and asked her to come with him to identify the suspect, if there was a suspect there. He told the victim that there were two Hispanic males there, and he did not know if either of them was the suspect. He testified that he did not suggest in any manner which of the men she should pick because he did not have a suspect. He said that the victim was able to identify appellant as the suspect, and that it was an instantaneous, positive identification.

The Due Process Clause is violated by a pretrial identification when there are suggestive elements in the identification process that make it all but inevitable that one person will be identified by the victim as the perpetrator. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). It is the trial court's responsibility to determine if there are sufficient aspects of reliability in an identification to allow its introduction as evidence; the appellate court does not reverse a trial court's ruling on the admissibility of an identification unless it is clearly erroneous. Millholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995). It is appellant's burden to prove that a pretrial identification was suspect. Fields, supra.

Appellant argues that the victim's out-of-court identification of him violates the Due Process Clause. We disagree. When a victim spots and identifies the perpetrator and then calls the police to have him arrested, it is clear that the identification occurs independently and not as a result of police action. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994). Although in this case it was the victim's boyfriend, and not the victim, who initially saw appellant's car parked at the house where the victim knew appellant lived, it was still at the request of the victim that the police came to her house and escorted her to appellant's house, where the victim identified appellant as the person who had attacked her a week earlier. There was no orchestration on the part of the Benton Police Department of the victim's pretrial identification of appellant as her attacker; therefore, there was no due-process violation. Furthermore, the victim testified that she knew appellant from seeing him in the neighborhood; such prior knowledge and independent recognition strengthens an identification rather than weakens it. Id. We hold that the victim's pretrial and in-court identifications of appellant were sufficiently reliable so as to be admissible; therefore, the trial court's admission of such was not clearly erroneous.

Affirmed.

Bird and Vaught, JJ., agree.

1 Appellant makes no argument concerning the sufficiency of the evidence to support his conviction for residential burglary.

2 The 2001 amendment by Act No. 1738 rewrote this statute.