Tommy Fraley v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

TOMMY FRALEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-600

March 2, 2005

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[NO. CR 2002-845-2]

HON. DAVID S. CLINGER,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Appellant Tommy Fraley was convicted by a Benton County jury of raping his minor stepdaughter and sentenced to twenty years' imprisonment in the Arkansas Department of Correction. On appeal, appellant argues that the trial court erred in failing to grant his motion for directed verdict, specifically that the State failed to provide substantial evidence of penetration. We affirm.

Appellant worked nights and stayed home with the children, including his wife's seven-year-old daughter, during the day while his wife was at work. Appellant's stepdaughter accused him of inappropriately touching her, including penetrating her vagina with both his fingers and penis, on multiple occasions. He was initially charged with sexual assault in the second degree, pursuant to Ark. Code Ann. § 5-14-125(a)(3), but the information was subsequently amended to add a charge of rape, pursuant to Ark. Code Ann. § 5-14-103, and then further amended to remove the initial sexual assault charge.

Before addressing the merits, we take this opportunity to note that appellant's brief does not comply with Rule 4-2(a)(8) of the Rules of the Arkansas Supreme Court and Court of Appeals, in that the notice of appeal is not included in the addendum. However, in this case, we find it unnecessary to order rebriefing, pursuant to Rule 4-2(b)(3) (2004), to give appellant an opportunity to cure the deficiencies because we affirm the circuit court's decision. It is well settled that we may go to the record to affirm. Lewis v. State, 84 Ark. App. 327, 139 S.W.3d 810 (2004).

The standard of review in cases challenging the sufficiency of the evidence is well established. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002); Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). Our supreme court has repeatedly held that, in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. See Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002). The jury is not required to believe any witness's testimony, especially the testimony of the accused, because he is the person most interested in the outcome of the trial. Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003). The credibility of witnesses is an issue for the jury and not the court. Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004). 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.

Arkansas Code Annotated section 5-14-103(a)(4) provides that, "[a] person commits rape if he engages in sexual intercourse or deviate sexual activity with another person [w]ho is less than fourteen (14) years of age." Deviate sexual activity includes "any act of sexual gratification involving [t]he penetration, however slight, of the labia majora . . . of one person by any body member . . . by another person." Ark. Code Ann. § 5-14-101(1)(B). While appellant does not dispute that he inappropriately touched his stepdaughter, he denies that there was penetration and argues that the State failed to prove that particular element of rape, which is necessary to sustain a conviction.

Appellant claims that the results from the rape kit performed on his stepdaughter the day following the alleged incident showed no signs of penetration. Additionally, none of the ten items of evidence collected from appellant's residence, including blankets, sheets, his stepdaughter's underwear, etc., showed evidence of semen; however, those items were never tested by the State. Appellant explains that the items in question were not sent to the crime lab until several days after he supposedly confessed to raping his stepdaughter but that they were then recalled by the State because of the alleged confession and never tested. He contends that his stepdaughter was "coached" by the State regarding the alleged incidents and that recalling the evidence prior to testing was the State's way to "cover" the girl's statement that appellant's sperm would be found on her underwear. Appellant maintains that he never removed his clothing, that the girl's underwear was not removed, and that if the conviction is affirmed, it would be the first case on record known to him of penetration through multiple layers of clothing.

There was specific testimony from the victim in this case regarding the rape and specifically the element of penetration. It is well settled that with regard to a rape conviction, the testimony of a rape victim, standing by itself, constitutes sufficient evidence to support a conviction. See McDuffy v. State, __ Ark. __, __ S.W.3d __ (Oct. 14, 2004); Pinder v. State, ___ Ark. ___, __ S.W.3d __ (May 6, 2004); Hanlin v. State, 356 Ark. 516, __ S.W.3d __ (2004). Appellant's stepdaughter testified at trial that appellant touched her more than ten times in an inappropriate way over the course of two years until she finally told her mother. She explained that during that time period, appellant touched her in her "private part" where she went "to the bathroom" with his "fingers and his private." She explained that the inappropriate touching occurred under her clothes and both inside and outside her "private part." Additionally, she testified that the touching "hurt very bad," but that it "hurt worse when he used his private." During cross-examination, she was asked whether someone had told her to say that appellant put his finger or his private part inside of her, to which she responded, "no sir, that really happened." She further explained that she knew the difference between the inside and outside of her "private part" because, "[i]nside-when he put it inside, it hurt."

During an interview1 with Sergeant Jerrod Wiseman of the Lowell Police Department, appellant admitted that he had intentionally rubbed his stepdaughter's vagina "once or twice." He stated, "I don't know why I've done it. I don't know why. It should have never happened." Appellant admitted to having sexual contact with his stepdaughter "less than a dozen times," and that he had placed his penis upon her "maybe four or five times at the most, at the most."

The victim's testimony regarding the elements of the crime, standing by itself, constitutes sufficient evidence to support a conviction. See McDuffy, supra. Even though appellant denied the allegations, the jury was not required to believe his self-serving testimony and was free to believe all or part of the victim's testimony. See Pinder, supra; Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002).

Affirmed.

Pittman, C.J., and Vaught, J., agree.

1 The tape recording and transcript of that interview were introduced at trial as State's Exhibits 2 and 3, and the tape recording was played for the jury in the courtroom during the proceedings.