Raheem Omar Alamen v. State of Arkansas

ar05-948

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR05-948

March 1, 2006

RAHEEM OMAR ALAMEN

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

APPEAL FROM HOT SPRING COUNTY CIRCUIT COURT

[NO. CR-2004-214-1]

HONORABLE CHRIS E. WILLIAMS,

CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Raheem Omar Alamen was convicted by a jury of second-degree sexual assault and was sentenced to eighteen years in the Arkansas Department of Correction. Alamen appeals, asserting that the trial court erred in denying his motion for directed verdict and in not allowing his attorney to cross-examine the victim about a prior statement she made. We find no error and affirm.

Alamen was charged with violation of Ark. Code Ann. § 5-14-125, sexual assault in the second degree. The information alleged that Alamen "being 18 years old or older, engaged in sexual contact with another person by forcible compulsion, who was less than 14 years of age, by fondling and touching her sexual organs, . . . ." A jury trial was held on this matter on March 17, 2005.

The victim, thirteen-year-old T.E., testified that on June 30, 2004, when she was twelve, she awoke in the middle of the night to find Alamen, a long-time family friend, standing over her with one hand touching her "thing" and the other hand holding his "you know what." When specifically asked, T.E. confirmed that Alamen was touching her underneath her panties and that she was referring to her vagina and Alamen's penis. At the close of the State's evidence, Alamen made a motion for directed-verdict, asserting that the State had produced no evidence of forcible compulsion. Alamen also asserted that T.E. alleged that he had touched her "thing" but never identified the "thing," and that the State did not provide any medical evidence of penetration in order to establish sexual contact. The court denied the motion, stating that proof of forcible compulsion was only one alternative under the statute that Alamen was accused of violating, that T.E. had specifically testified that Alamen touched her private area, and that the statute did not require penetration. Alamen testified on his own behalf and denied touching the victim at all. The court also denied Alamen's renewed motion for directed-verdict.

Alamen first argues that the court erred in denying his motions for directed verdict. The State asserts that Alamen's brief is simply a recitation of the testimony and does not really present an argument. While the majority of Alamen's brief is pure replication of certain testimony, his motions for directed-verdict are sufficiently specific such that it is apparent that Alamen's argument on appeal is that the State did not provide sufficient proof of forcible compulsion.

A motion for a directed-verdict is treated as a challenge to the sufficiency of the evidence. Parker v. State, 355 Ark. 639, 144 S.W.3d 270 (2004). When reviewing a challenge to the sufficiency of the evidence, the appellate court will affirm a conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). Substantial evidence is that which is of a sufficient force and character that it will, with reasonable certainty, compel a conclusion without mere speculation or conjecture. Id. Circumstantial evidence may be sufficient to provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. Furthermore, credibility determinations are left within the sound discretion of the trier of fact. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). The trier of fact 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; the appellate court will not second-guess these determinations. Id.

The State charged Alamen with violation of Ark. Code Ann. § 5-14-125 (Repl. 1997). The statute reads in pertinent part:

(a) A person commits sexual assault in the second degree if the person:

(1) Engages in sexual contact with another person by forcible compulsion;

***

(3) Being eighteen (18) years of age or older, engages in sexual contact with another person, not the person's spouse, who is less than fourteen (14) years of age;

(5)(B)(ii) ***; or

Ark. Code Ann. § 5-14-125 (emphasis added).

Forcible compulsion is defined as "physical force or threat, express or implied, of death or physical injury to or kidnapping of any person." Ark. Code Ann. §5-14-101(2) (Repl. 1997). While it is true that the State offered no evidence of forcible compulsion, under Ark. Code Ann. § 5-14-125, the State only had to prove that Alamen's conduct fell into one of six categories. The charging instrument might have misstated the specifics of Alamen's crime, but it expressly stated that he was being charged under Ark. Code Ann. § 5-14-125 for sexual assault in the second degree. Here, the State presented sufficient evidence that Alamen violated Ark. Code Ann. § 5-14-125(a)(3) by engaging in sexual contact with another person, not his spouse, who is less than fourteen years old. The evidence established that Alamen was forty-eight and T.E. was twelve at the time of the incident. In addition, T.E. testified that Alamen touched her on her vagina. While Alamen presented a totally different version of events, issues of credibility are left within the discretion of the trier of fact, and the jury was free to believe T.E.'s account of the incident.

Alamen's directed-verdict motions also claimed that T.E. never specifically testified that Alamen touched her sexual organ. The abstracted testimony clearly reveals, however, that T.E. initially claimed Alamen touched her "down there, where [her] thing is" and expressly confirmed that she was referring to her vagina when directly asked by the prosecutor. Alamen also argued that the State failed to provide medical evidence to establish that there had been penetration because the vagina is an internal sex organ, and in the absence of penetration, he could not have touched her vagina. However, sexual assault in the second degree only requires "sexual contact", and under Ark. Code Ann. § 5-14-101(9), "sexual contact" is defined as an act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus or the breast of a female. See Young v. State, 286 Ark. 413, 692 S.W.2d 752 (1985) (finding that appellant convicted of indecent exposure had revealed her sex organ when her pubic area was exposed and people could see the vaginal area or labia). There is no requirement of penetration.

There was sufficient evidence to find Alamen guilty of sexual assault in the second degree, and the trial court did not err in denying Alamen's motions for directed-verdict.

Alamen's final argument is that the trial court erred in not allowing his attorney to cross-examine T.E. on her alleged prior statement. During cross examination, Alamen's attorney attempted to question T.E. about a conversation she had with Kayla Patterson, an interviewer at Mercy Child Advocacy Center in Hot Springs, in which T.E. stated that she watched movies with nudity in them. The prosecutor objected to the line of questioning, asserting that it had no relevance. The defense attorney alleged that the questioning was relevant because the movies could have been the source of the information to accuse Alamen. The court sustained the objection, holding that the questioning was not relevant.

A trial court's ruling on relevancy will not be disturbed on appeal absent a manifest abuse of discretion. Barrett, supra. In addition, the appellate court will not reverse absent a showing of prejudice to appellant. Huddleston v. State, 339 Ark. 266, 5 S.W.3d 46 (1999). Alamen's argument on this issue is simply a recitation of the exchange between the attorneys and the court. Alamen does not specifically state why the trial court's relevancy ruling was in error, and he offers no legal support for his broad assertion. This court will not consider an issue when appellant presents no citation of authority or convincing argument in its support and it is not apparent without further research that the argument is well taken. Lancaster v. State, 81 Ark. App. 427, 105 S.W.3d 365 (2003).

Affirmed.

Hart and Vaught, JJ., agree.