Robert Lee Mitchem v. State of Arkansas
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DIVISION III
CACR05-735
SEPTEMBER 6, 2006
ROBERT LEE MITCHEM
APPELLANT
v.
APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT
[CR-04-323]
HONORABLE VICTOR LAMONT HILL,
CIRCUIT JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
K AREN R. B AKER, Judge
A Craighead County jury convicted appellant Robert Lee Mitchem of attempted rape and
kidnapping and sentenced him to a total of twenty years in the Arkansas Department of
Correction. Appellant challenges his convictions arguing that the trial court erred in failing to
grant his motion for directed verdict on the charge of attempted rape because the evidence was
insufficient to prove that appellant took a substantial step toward the commission of the offense
of rape. He also argues that the trial court erred in failing to grant a directed verdict on the
charge of kidnapping because the evidence was insufficient to show that appellant restrained the
liberty of the alleged victim. We find no error and affirm.
Appellant’s argument relies heavily on disputed testimony. Therefore, we first set out the
facts of this case that are not in dispute. The victim in this case, H.G., was thirteen (13) years
old. On the afternoon of February 15, 2004, appellant, a fifty-one (51) year-old-male, and H.G.
had a telephone conversation, and the subject of the phone conversation was whether H.G. could
go to the movies with appellant’s daughter.
H.G. obtained her mother’s permission to go the
movies. Appellant called H.G.’s home to obtain directions to the home. Shortly after receiving
directions, appellant picked up H.G. from her home in his car. When H.G. entered appellant’s
vehicle, she was the only passenger in the vehicle. Appellant explained his daughter’s absence to
H.G. by stating that his daughter was already at the movies and that he would take H.G. there;
however, appellant did not take H.G. to the movies. Instead, appellant took H.G. to the Regency
Inn in Jonesboro where he procured a motel room. Appellant escorted H.G. to the motel room
and left her. At 9:35 p.m., Officer Landrum of the Jonesboro police department received a call
from dispatch reporting a rape in progress at the Regency Inn.
Officer Landrum went to the
motel room and found H.G. crying and upset. Appellant was not in the motel room at that time.
The police attempted to locate appellant and spoke to his daughter at appellant’s home. After
the police left appellant’s home, appellant’s daughter called appellant on his cell phone to tell
him that the police were looking for him. Appellant called the police from the motel after his
daughter’s call, and officers proceeded to the motel where they arrested appellant.
On appeal and at trial, appellant emphasized the differences in the testimony regarding
who initiated the call concerning the movies and the reason H.G. was at the hotel room.
Appellant asserted that the State failed to demonstrate that H.G. was restrained in any way. He
argued that she walked into the room without coercion, that appellant left the room about 7:00
p.m., and that he did not return until after the police had been summoned. During the time he
was gone, the door was not bolted, a working telephone was in the room, and H.G. was free to
leave.
Appellant also argued that the evidence regarding the attempted rape charge was
insufficient in that there was not a substantial step toward the commission of the crime of rape.
He asserted that he did not touch H.G. sexually, he did not restrain her liberty, and otherwise
took no action to engage in sexual intercourse or deviate sexual activity.
H.G. testified at trial that appellant explained to her that, before going to the movie, he
first had to visit someone at the motel room. H.G. watched appellant procure the key and went to
the room with appellant; however, no one was in room. Once in the room, appellant told H.G.
that this was where she would be staying and asked her if she had “ever done crystal meth.” He
then inquired if H.G. had a boyfriend and if she did, to ask him to come over. When she said she
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did not have a boyfriend, appellant stated that he intended to engage in sexual contact with H.G.
He also stated that he and his girlfriend had engaged in sex with another person earlier that day
and he wanted H.G. to engage in such acts with them. He gave his watch to H.G. when he left
saying that he would return with his girlfriend. H.G. said that she remained in the motel room
because she was frightened by what the appellant might do if she tried to leave. She also testified
that there were people outside the motel room and that she did not know if they were with
appellant or not. Instead of leaving, she used the phone in the room to call a friend and told her
what happened. As a result, her friend’s mother called the police.
Officer Landrum testified that once he found the room where H.G. was located, he
knocked on the door. H.G. was very upset and crying and only opened the door to the police
after multiple requests and assurances that Officer Landrum and his fellow officer were in fact
police. Officer Landrum described her as “obviously afraid,” “very distraught,” and “upset.”
Her tone of voice was frantic and her speech patterns were rapid. She told the officers that
appellant had brought her to the motel room, that he wanted her to have sex with him and his
girlfriend, and that he wanted her to use “meth.” She appeared frantic and wanted to leave
immediately, because she feared that appellant would return.
Officer Landrum also described his contact with appellant following the attempts to
locate him. Officer Landrum said that appellant contacted the police and asked what was going
on. The officer explained that appellant was a suspect in a case involving the abduction of a
child and he requested that appellant come to the station. The appellant said that he would come
to the station “in the morning” and that he was on his way to Paragould. Officer Landrum said
that, while talking to appellant, he heard a train whistle over the telephone and dispatched a
patrol unit back to the motel, which was near the railroad tracks. Police officers subsequently
located appellant at the motel. Appellant had returned to the motel with his girlfriend who
opened the door to the officers, who then arrested appellant. Appellant told Officer Landrum that
the reason he had left H.G. at the hotel was that he did not have room for her and his girlfriend in
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the car. Officer Landrum described the car as a four door and capable of carrying more than one
passenger.
Appellant’s first witness was his daughter, A.M., who testified that H.G. had told her that
she had used “meth” and “smoked pot” prior to the incident with her father. She also testified
that she was unaware that her father or her father’s live-in girlfriend, Laura Eaton, had invited
H.G. to the movie with her and another friend, and that her aunt had picked her up from the
movies and returned her home. Neither her father nor his girlfriend were at home when she
returned after the movie.
Appellant claimed that he had rented the motel room for his girlfriend’s aunt. According
to him, the aunt had been staying in his home, but wanted to have her boyfriend spend the night.
Appellant did not believe that an overnight guest was a good example for his daughter, so he had
procured a motel room earlier in the day. He further asserted, contrary to H.G., that H.G.
initiated the call to his house, wanting to go to the movie with his daughter, and he merely
returned her call to get directions to the home. He testified that once H.G. was in the car with
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him, that she refused to go to the movies, and, instead of taking her back home, he took her to the
motel. In support of argument, he emphasizes that he left her at the motel a sufficient amount of
time to allow for the viewing of a movie and travel.
Appellant also called as a witness a life-long friend who testified that she was supposed
to meet appellant later that evening at another establishment. She was ahead of schedule driving
home when she happened to see appellant and H.G. going into the motel room. She drove into
the parking lot, gained appellant’s attention, and observed appellant talking with H.G. in the
doorway before coming to talk with her. She and appellant then left and conducted their business
which consisted of appellant loaning the witness money. The State argues that this chance
encounter thwarted appellant’s original plan.
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).
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 deviate sexual activity
with H.G. 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(3)(A) (Repl.
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2006). 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. 2006); see also Rains v. State, 329 Ark.
607, 953 S.W.2d 48 (1997). 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).
While appellant’s version of the events are in stark contradiction to the victim’s
description, the jury was not required to believe appellant’s story that it was simply “foolish on
[his] part not to just take her back home.” See Palmer, supra. The testimony that he initiated a
call to the victim, picked her up under false pretenses, isolated her in a motel room, told her that
he intended to engage in sexual intercourse with her and that he also was bringing back his
girlfriend to engage in sexual acts with the victim, and then returning to the motel room with his
girlfriend goes beyond mere planning and preparation. Appellant had procured the victim. This
evidence supports the jury determination that appellant had taken a substantial step toward
engaging in sexual intercourse with a person under the age of fourteen.
Appellant’s second argument challenges the sufficiency of the evidence regarding
restraint. Arkansas Code Annotated section 5-11-102 (Repl. 2006) provides, in pertinent part:
A person commits the offense of kidnapping if, without consent, the person
restrains another person so as to interfere substantially with the other person's
liberty with the purpose of:
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(3) Facilitating the commission of any felony or flight after the felony;
(4) Inflicting physical injury upon the other person;
(5) Engaging in sexual intercourse, deviate sexual activity, or sexual contact with the other
person;
(6) Terrorizing the other person or another person, However, to support a separate
charge for kidnapping in a case where a rape or attempted rape has been alleged also, it must be
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shown that the defendant employed some greater restraint on the victim than that normally
incidental to rape. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996); Wofford v. State, 44
Ark.App. 94, 867 S.W.2d 181 (1993). A person acts purposely with respect to his conduct or a
result thereof “when it is his conscious object to engage in conduct of that nature or to cause such
a result.” Ark.Code Ann. § 5-2-202(1) (Repl.2006). In Watson v. State, 358 Ark. 212, 188
S.W.3d 921 (2004), our supreme court held:
A criminal defendant's intent or state of mind is seldom capable of proof by direct
evidence and must usually be inferred from the circumstances of the crime.
Because intent cannot be proven by direct evidence, the jurors are allowed to draw
upon their common knowledge and experience to infer it from the circumstances.
Moreover, because of the obvious difficulty in ascertaining a defendant's intent or
state of mind, a presumption exists that a person intends the natural and probable
consequences of his or her acts.
Watson, 358 Ark. at 219-20, 188 S.W.3d at 925 (citations omitted).
Appellant submits that the facts in this case fail to show that H.G. was restrained so as to
interfere with her liberty. He urges that the facts demonstrate that H.G. willingly entered the
room, was not restrained, could have left the room at any time she chose, and had access to a
working telephone. He also concludes that his staying away from the motel room indicates that
he had no intent to restrain her liberty. He distinguishes his case from Kirwan v. State, 351 Ark.
603, 96 S.W.3d 724 (2003), where a defendant traveled from another state to meet a fictional
eleven-year-old child, who actually was an undercover police officer as a part of an internet sting
operation, for the purpose of engaging in sexual relations. Appellant argues that the evidence in
Kirwan left no other reasonable explanation for the defendant’s conduct other than his intent to
engage in sexual relations with the eleven-year-old child.
We agree that appellant’s case is distinguishable from Kirwan; however, it was within the
jury’s province to evaluate appellant’s testimony and the testimony of the victim to determine the
facts. The jury was not required to accept appellant’s version even if it found the version to be
plausible or reasonable. 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.
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Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003). 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. Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004). Indeed, after a jury
has given credence to a witness's testimony, this court does not disregard it unless it was “so
inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds
could not differ thereon.” Id. One eyewitness’s testimony, moreover, is sufficient to sustain a
conviction, and his testimony is not “clearly unbelievable” simply because it is uncorroborated or
because it has been impeached. Id.
While appellant asserts that there was no evidence that he intended to restrain H.G.,
sufficient evidence supports the conclusion that appellant used deception to restrain the victim.
Our definition of “restraint without consent” includes restraint by deception. Ark. Code Ann. §
5–11-101 (A)(Repl. 2006). In the case of a person who is under the age of fourteen (14) years,
the definition includes “without the consent of a parent ....” Id. The mother of H.G. relied upon
the representation that appellant was taking H.G. to the movies with his daughter when she gave
permission for H.G. to leave her home with appellant. H.G.’s mother did not consent to
appellant escorting her daughter to a motel room at the Regency Inn. When H.G. realized
appellant’s daughter was not in the car, appellant assured H.G. that his daughter was waiting for
H.G. at the movies, and he would take H.G. to meet her. Appellant then escorted H.G. to the
motel room under the guise of meeting someone briefly before meeting her daughter at the
movies. Given the testimony, substantial evidence exists to support appellant's convictions;
accordingly, we affirm.
BIRD and ROAF, JJ, agree.
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