Howard Powell, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR03-862

September 1, 2004

HOWARD POWELL, JR AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT

v. [CR 02-1558]

STATE OF ARKANSAS HONORABLE JOHN W. LANGSTON,

APPELLEE JUDGE

AFFIRMED

Olly Neal, Judge

Appellant Howard Powell Jr. was convicted of rape, second-degree false imprisonment, and second-degree battery. He was sentenced to thirty-two years' imprisonment. On appeal, Powell asserts that the trial court erred when it denied his motions for directed verdict and failed to grant his motion to remove a juror who allegedly had contact with the prosecutor. We affirm.

On the evening of March 22, 2002, appellant and T. P., who had been dating for fifteen months, met for dinner. During dinner, T. P. complained of back problems. After dinner, appellant and T. P. left in separate vehicles. On her way home, T. P. dropped off her daughter, who had accompanied them to dinner, at her grandparents. Shortly thereafter, she arrived home, and appellant arrived twenty-minutes later with a bottle of mentholatum and a bottle of witch hazel. After T. P. changed into a nightshirt, appellant started giving her a massage. When appellant's touch became uncomfortable, T. P. asked appellant to stop the massage. Appellant became upset, so T. P. asked him to leave. When appellant reached the door, he turned, punched T. P. in the head, and started yelling at her. When T. P. asked appellant to lower his voice, appellant started hitting and kicking her. Appellant dragged T. P. to her bedroom and demanded that she get on the bed. T. P. initially refused. She eventually persuaded appellant to allow her to take a bath first. During her bath, appellant stood in the doorway of the bathroom yelling at her. When T. P. finished her bath, appellant followed her back into the bedroom. Once in the bedroom, T. P. tried to struggle, when she tried to hit appellant with an iron. However, she relinquished the iron and got into bed when appellant told her to do so. T. P. said that she did not struggle further because she "just wanted to stay alive." Appellant then proceeded to have oral sex and intercourse with T. P.. After appellant fell asleep, she went and lay down on a sofa. When he awoke, appellant came and laid down on the sofa opposite T. P..

The following morning, T. P. told appellant that she needed some air and went to her front door. While she was standing in the door, appellant told her she was "disrespecting him" by standing in the door in her night shirt. Appellant pushed T. P. out the front door. T. P. started running toward her neighbors' house, only to be caught by appellant and dragged back inside her home. T. P. also tried to escape through her garage. When appellant caught her, he began to beat her on the head and face. T. P. said that she grabbed the phone from the wall and tried to call 911. Appellant dragged T. P. back to the bedroom and demanded that she get on the bed. T. P. said that she told appellant that she was dizzy and needed some ice. Before leaving to get T. P. some ice, appellant unplugged the phone and took it with him. When appellant returned, T. P. asked him to call and cancel her hair appointment. She also asked appellant to call her mother. During the phone call with T. P.'s mother, appellant allowed T. P. to talk to her mother, but she gave no indication as to what had transpired.

Shortly thereafter, the tree service arrived and appellant left to let the tree service into T. P.'s backyard. While appellant was outside, T. P. called her mother and told her that appellant had beat on her. T. P.'s mother told her she would be there shortly and not to call the police. T. P. next called her neighbors, Reverend and Mrs. Charlie McAdoo. Reverend McAdoo came over, and when appellant returned he asked appellant to leave, which he did. After her mother arrived, T. P. called the police.

Appellant was subsequently charged with rape, kidnaping, and second-degree battery. At appellant's jury trial, T. P. said that she was a teacher in the Little Rock School District. She testified that appellant became violent when she refused his sexual advances. She said that appellant was never violent before when she refused his advances. T. P. said that she did not leave because she was terrified. She testified that appellant threatened to knock her teeth out and to choke her. T. P. said that she believed that this was a threat to kill her. She said that she also believed that appellant would kill her if she resisted him. T. P. testified that as a result she sustained facial and head injuries, a broken ankle, and two black eyes. She said that she did not return to work until the following school year. During her testimony, T. P. admitted that about six weeks after the incident she resumed contact with appellant.

Dr. Alicia Kennedy, an emergency-room physician at Baptist Hospital, testified that she examined T. P. on March 23, 2003. She said that T. P. had two black eyes, a bruise on her right shoulder, and a swollen right ankle. Dr. Kennedy determined that T. P.'s ankle was broken. Dr. Kennedy said that the rape exam indicated that T. P.'s peritoneum was swollen and red, with no tearing.

Reverend Charlie McAdoo testified that he lives next door to T. P.. He said that on March 23, his wife received a call and asked him to go over to T. P.'s. Reverend McAdoo testified that when he arrived, T. P. told him that she and appellant had been fighting, but failed to mention that appellant had raped her. He described T. P.'s face as swollen. He said that appellant told him that T. P. had fallen in the bathroom. Reverend McAdoo said that he asked appellant to leave.

Virginia Burke, T. P.'s mother, testified that when T. P. called she said that appellant was holding her captive and had beaten her up. Ms. Burke said that she told T. P. to lock the doors and that she would be there shortly. She said that she also told T. P. not to call the police. Ms. Burke said that when she arrived, T. P.'s eyes were blood shot, there was a "big knot" on her forehead, and she could not walk. She testified that T. P. told her that appellant had forced himself on her.

Appellant denied hitting T. P. He said that she had sustained her injuries when she fell on the bathtub. He also said that it was not unusual for him and T. P. to argue and then make up. He said that during their argument, T. P. asked him if he wanted to "make love." He described the incident as consensual sex. Appellant said that he never prevented T. P. from leaving.

1. Denial of appellant's motions for directed verdict

At the conclusion of the State's case, appellant made the following motion for directed verdict:

We move for directed verdict. The prosecution has failed in its burden to prove the elements of rape, that it was forcibly. The defendant has admitted they had sex, but it was not by force. . . . On the charge of kidnaping, we're arguing that the prosecution has failed in its burden of proving the defendant kidnaped the alleged victim. . . . On the second-degree battery charge, we're asking the court to dismiss those charges. [Appellant] said there had been some pushing and shoving, but that [T. P.] slipped and fell on the bathtub. He admitting [sic] they had been arguing, but said he did not hit her in the face with his fist.

The trial court denied appellant's motion. Appellant renewed his motion at the close of all the evidence and once again the trial court denied his motion. Appellant now argues that the trial court erred when it denied his motions.

Motions for directed verdict are challenges to the sufficiency of the evidence. Benson v. State, Ark. , S.W.3d (Apr. 22, 2004). When reviewing a denial of a motion for directed verdict, we look at the evidence in the light most favorable to the State, considering only the evidence that supports the judgment or verdict. Ewings v. State, Ark. App. , S.W.3d (March 24, 2004). We will affirm if there is substantial evidence to support a verdict. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other and permits the trier of fact to reach a conclusion without having to resort to speculation or conjecture. Benson v. State, supra.

A. Rape

A person commits 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)(A) (Supp. 2003). Appellant alleges that the sexual acts between him and T. P. were consensual and that thereby, the State was unable to prove forcible compulsion. Our statutory law defines forcible compulsion as "physical force or a threat, express or implied, of death or physical injury to or kidnaping of any person." Ark. Code Ann. § 5-14-101(2) (Repl. 1997). Physical force is any bodily impact, restraint, or confinement, or the threat thereof. Johnson v. State, 80 Ark. App. 79, 94 S.W.3d 344 (2002). In a rape case, the test for determining whether there was force is whether the act was against the will of the party upon whom the act was committed. Id.

T. P. testified that when she refused appellant's sexual advances, appellant became violent and threatened to choke her and to knock her teeth out. Furthermore, T. P. initially put up a struggle. This does not suggest that a consensual act occurred between appellant and T. P.. Therefore, appellant's rape conviction is supported by substantial evidence.

B. Second-degree false imprisonment

Appellant's challenge to the sufficiency of the evidence to support his conviction for second-degree false imprisonment is procedurally barred. In his motion for directed verdict challenging the sufficiency of the evidence to support the kidnaping charge, appellant failed to address the lesser-included offenses. In making a motion for directed verdict, a defendant must anticipate an instruction on lesser-included offenses and specifically address the elements of any lesser-included offense he wishes to challenge in the motion. Houston v. State, 82 Ark. App. 556, 120 S.W.3d 115 (2003). Therefore, appellant's failure to address second-degree false imprisonment in his motion for directed verdict prevents us from addressing this issue on appeal.

C. Second-degree battery

A person commits second-degree battery if with the purpose of causing physical injury to another person, he causes serious physical injury to any person. Ark. Code Ann. §5-13-202(a)(1) (Supp. 2003). T. P. testified that as a result of appellant's violence she sustained facial and head injuries, a broken ankle and two black eyes. Appellant denied inflicting such injuries. The credibility of witnesses is an issue for the jury and not for this court. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State's account of the facts rather than the defendant's. Id. Accordingly, appellant's conviction for second-degree battery is supported by substantial evidence.

2. Denial of appellant's motion to remove a juror

Appellant also argues that the trial court erred when it denied his motion to remove a juror. At the conclusion of his trial, appellant moved to excuse a juror. He said that the previous day he had observed one of the jurors approach the prosecutor. The prosecutor admitted that a juror had approached her, and she explained that the juror had a cup in her hand and "looked like she was trying to put it somewhere. I did like this (indicating) and I might have said I can't or something like that. She did not say anything to me."

Appellant testified that he saw the juror approach the prosecutor. He said that he did not hear any conversation between the prosecutor and juror. He said that the juror's conduct concerned him. Brenda Powell testified that she observed the juror speaking directly to the prosecutor and that the prosecutor said something to the juror. She said that she did not hear what transpired.

Albert Benefield, the courtroom bailiff, testified that he also saw the juror approach the prosecutor. He said that he did not hear anything. He described the contact as brief and that shortly thereafter, the juror approached a Mrs. Shinn with a folder. The trial court found no prejudice and denied appellant's motion.

Following allegations of juror misconduct, the moving party bears the burden of proving that a reasonable possibility of prejudice resulted from any such juror misconduct. Butler v. State, 349 Ark. 252 , 82 S.W.3d 152 (2002). This court will not presume prejudice in such situations. Id. Whether prejudice occurred is also a matter for the sound discretion of the trial court. Id. Appellant fails to demonstrate that any prejudice resulted to him. Therefore, we cannot say that the trial court erred when it denied appellant's motion to remove the juror.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.