Kenneth Harold Jordan, Jr. v. State of Arkansas

Annotate this Case
ar04-170

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR04-170

NOVEMBER 10, 2004

KENNETH HAROLD JORDAN, JR. AN APPEAL FROM THE HEMPSTEAD

APPELLANT COUNTY CIRCUIT COURT [CR-03-93-1]

V.

STATE OF ARKANSAS HONORABLE JAMES HOUSTON

APPELLEE GUNTER, JR., JUDGE

AFFIRMED

Olly Neal, Judge

The Hempstead County Circuit Court convicted appellant Kenneth Jordan of fifteen counts of rape against his three stepchildren. The court sentenced appellant to forty years on each count, the first ten to run consecutively and the remaining five to run concurrently. On appeal, appellant argues that (1) his "convictions must be reversed because the felony information does not identify the acts which are charged as the offenses, and this failure materially prejudices appellant's right to prepare an adequate defense pursuant to the Sixth Amendment and Art. 2 § 10 of the Arkansas Constitution and violates his right to due process" and (2) "counts ten through fifteen of the felony information filed in this matter must be reversed and dismissed because the evidence is insufficient to support a conviction, or alternatively, there is a material variance between the allegations and the proof, or, Arkansas is without jurisdiction to try these allegations." We affirm.

For double jeopardy reasons, we consider appellant's challenge to the sufficiency of the evidence first. See Polk v. State, 82 Ark. App. 210, 105 S.W.3d 797 (2003). Appellant argues that the evidence was insufficient to convict him in counts ten through fifteen. In counts ten through fifteen, the information alleged that appellant committed rape on or about 2002 in Hempstead County. Appellant asserts first that the evidence at trial clearly and undeniably showed that no acts of rape occurred during the year of 2002, and secondly that he and the minor children did not live together in Arkansas in 2002.

Motions for directed verdict are challenges to the sufficiency of the evidence. Benson v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 22, 2004). When reviewing the denial of a directed-verdict motion, the appellate court will look at the evidence in the light most favorable to the State, considering only the evidence that supports the verdict, and will affirm if there is substantial evidence to support the jury's conclusion. 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. Id.

The fact that evidence is circumstantial does not render it insubstantial; where circumstantial evidence is relied upon, however, it must exclude every other reasonable hypothesis but the guilt of the accused. Geer v. State, 75 Ark. App. 147, 55 S.W.3d 312 (2001). Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Isom v. State, ___ Ark. ___, ___ S.W.3d ___ (Feb. 19, 2004). Such a determination is a question of fact for the fact-finder to determine. Id. The credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. We will disturb the jury's determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Id.

Generally, the time a crime is alleged to have occurred is not of critical significance unless the date is material to the offense, see Martin v. State, ___ Ark. ___, ___ S.W.3d ___ (Oct. 2, 2003), and as will be discussed, time is not an essential element in a rape, especially as against family members. Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988). Any discrepancies in the evidence concerning the date of the offense are for the jury to resolve. Martin v. State, supra. In cases of rape, the evidence is sufficient if the victim gave a full and detailed accounting of the defendant's actions. Id.

Appellant was charged with several counts of rape, for which the prosecutor alleged that rape of the children occurred throughout the span of several years. The years of these offenses were apparently derived from the victims' testimony. Each victim gave full and detailed accounts of appellant's actions, and we hold that their testimony alone constitutes substantial evidence to support the rape convictions.

Alternatively, appellant contends that there was a material variance between the allegations and the proof. However, this argument was not raised below and therefore is not preserved for appellate review. See Williams v. State, 331 Ark. 263, 962 S.W.2d 329 (1998).

Appellant also argues that he was unable to prepare an adequate defense because the felony information "[did] not identify the acts which [were] charged as the offenses." The proper time to object to the sufficiency of an information or an indictment is prior to trial. McNeese v. State, 334 Ark. 445, 976 S.W.2d 373 (1998). A nonjurisdictional challenge to the sufficiency of an information must be raised prior to trial to be preserved for appellate review. See Ray v. State, 344 Ark. 136, 40 S.W.3d 243 (2001). Because appellant did not object to the sufficiency of the information prior to trial, his argument is not preserved for appellate review.

However, even if the argument was preserved, we would affirm. The information in this case charged appellant with rape, stating:

RAPE ARK. CODE ANN. § 5-14-103. The said defendant in HEMPSTEAD COUNTY, did unlawfully and feloniously on or about [year], engaged [sic] in sexual intercourse or deviate sexual activity with another person who is less than fourteen (14) years of age.

Appellant suggests that he was unable to prepare an adequate defense because the charging instrument stated only the charge of rape on or about a given year and did not list the name of any particular accuser. In Bonds v. State, supra, the supreme court stated that it was not necessary that the State include in the rape information the date on which the offense occurred, and further that:

First, it is clear that time is not an essential element of rape, Huffman v. State, 288 Ark. 321, 704 S.W.2d 627 (1986)[.] . . . Furthermore, in crimes of this nature against family members, as compared to offenses against victims with whom the accused had no prior contact, an accused is more likely to be aware of the specifics of the charges against him and therefore better able to prepare his defense.

296 Ark. at 4-5, 751 S.W.2d at 341-342. Appellant urges this court to overrule Bonds v. State, supra, but it is well-settled that we lack authority to overrule supreme court decisions. See Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002). As in Bonds, the appellant in this case was charged with rape against his stepchildren and was informed in each count the time frame in which the crime allegedly occurred. Furthermore, we have held that it is only necessary that an indictment name the offense and the party to be charged. Polk v. State, 82 Ark. App. 210, 105 S.W.3d 797 (2003). The State is not required to include a statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so. Id. The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet. Id. Here, the information named the offense and the party to be charged, and it was sufficient because it contained the elements of the offense intended to be charged and it apprised appellant of what he had to be prepared to meet.

Moreover, appellant was well aware of the identify of his accusers prior to trial. In several letters written to the children's mother (appellant's wife) after he had been arrested and placed in jail, appellant admitted as much. In a letter dated May 8, 2002, appellant wrote:

I still don't remember hurting our babies but I'm trying. I could never in my right mind hurt our babies. . . . I pray that you can, one day, forgive me and still want to be with me but I know it will take time. . . . Please Please help me, but I know there is not much you can do for me, because our babies need you right now. . . . I hope our marrage [sic] can survive this, because I want to grow old with you. I mean that from my heart. We may not be able to live together till the kids turn 18 but we can figure something out between now and then, provided they don't want to give me life in prison.

In another letter dated July 3, 2002, appellant wrote to the children's mother, "I Love You very much and I know I'm fixing to be in jail for awhile. Because I do not intend on putting our babies on the stand." Appellant, in a letter to the children dated July 7, 2002, further wrote, "Ya'll have said that I have done these horrible things, and if that is the case, then I want the medical help to find what I did and why I did, and make sure that it never happens again." It is clear from these statements that appellant understood who his accusers were. Accordingly, we affirm.

Affirmed.

Stroud, C.J., and Gladwin, J., agree.