Wade v. State
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ARKANSAS COURT OF APPEALS
DIVISION II
No. CACR08-782
DETRIAWN WADE,
Opinion Delivered
APRIL 29, 2009
APPELLANT
APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT,
[NO. CR-2006-1205]
V.
STATE OF ARKANSAS,
APPELLEE
HONORABLE RALPH WILSON, JR.,
JUDGE
AFFIRMED
KAREN R. BAKER, Judge
On March 18, 2008, a jury in Crittenden County convicted appellant, Detriawn Rondell
Wade, of rape, a Class Y felony, and fourth-degree sexual assault. He was sentenced to twenty-six
years’ imprisonment for the rape conviction and six years’ imprisonment for the assault conviction.
He raises two points on appeal. He argues first that the trial court erred by denying his motion to
dismiss for lack of a speedy trial. Second, he argues that the trial court erred in denying his motion
for a directed verdict. Finding no error, we affirm.
On September 26, 2006, the State of Arkansas filed a felony information. An amended twocount information was filed on September 24, 2007. In the amended information, count one alleged
that appellant engaged in sexual intercourse between November 2004 and June 2006 with his niece
who was less than eighteen years of age. Count two of the information alleged that appellant, being
twenty years of age or older, engaged in sexual activity on or between November 2004 and June
2006 with another person who was less than sixteen years of age and not his spouse.
At trial, the marriage certificate of appellant and Elizabeth Wade was introduced into
evidence. Testimony showed that Elizabeth Wade was the victim’s aunt: the victim’s mother and
Elizabeth were sisters. The victim, appellant’s niece, gave birth to a baby on October 29, 2005; she
was fifteen years old at the time. DNA testing conducted in both 2006 and 2007 confirmed that
appellant was the biological father of the child. The victim testified that between November 2004
and June 2005, she and appellant engaged in sexual intercourse “at least, if not more than 50 times.
About three or four times a week.”
At the conclusion of the State’s case, appellant’s counsel made a motion for a directed verdict
based on the fact that the rape statute did not include an uncle related only by marriage. The trial
court denied the motion. Appellant’s counsel renewed the motion at the close of the evidence, and
the motion was again denied. Ultimately, appellant was convicted of rape and sexual assault. This
appeal followed.
Appellant contends that the trial court erred in denying his motion for a directed verdict. Our
standard of review for a sufficiency challenge is well settled. We treat a motion for directed verdict
as a challenge to the sufficiency of the evidence. Gillard v. State, 372 Ark. 98, 270 S.W.3d 836
(2008) (citing Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007)). We have 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. Id. 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. Id.
Appellant was convicted of rape pursuant to Arkansas Code Annotated section 5-14-103
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(Repl. 2006), which provides in pertinent part: “(a) A person commits rape if he or she engages in
sexual intercourse or deviate sexual activity with another person: . . . (4)(A) Who is less than
eighteen (18) years of age and the actor is the victim’s: (ii) Uncle . . . . ” Ark. Code Ann. § 5-14-103.
Appellant asserts that the State failed to meet the statutory element that he was the victim’s uncle.
His argument focuses on the fact that he was the victim’s uncle by affinity only, as evidenced by the
marriage certificate, and not the victim’s uncle by consanguinity. Relying on this distinction, he
asserts that there was insufficient evidence to support his conviction.
Appellant asserts that the word “uncle” in the rape statute refers only to an uncle who is
related by blood to the victim. Because this court has not previously interpreted the word “uncle”
in the context of the rape statute at issue here, we are called upon to do so now.
This court reviews issues of statutory interpretation de novo, as it is for this court to decide
the meaning of a statute. See Stivers v. State, 354 Ark. 140, 118 S.W.3d 558 (2003). We
construe criminal statutes strictly, resolving any doubts in favor of the defendant. See id. We
also adhere to the basic rule of statutory construction, which is to give effect to the intent of
the legislature. See id. We construe the statute just as it reads, giving the words their ordinary
and usually accepted meaning in common language, and if the language of the statute is plain
and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort
to rules of statutory interpretation. See id. Additionally, in construing any statute, we place
it beside other statutes relevant to the subject matter in question and ascribe meaning and
effect to be derived from the whole. See id.
Brown v. State, ___ Ark. ___, ___ S.W.3d ___ (Feb. 5, 2009). Moreover, as our supreme court
stated in Heikkila v. State, 352 Ark. 87, 90, 98 S.W.3d 805, 807 (2003):
The courts cannot, and should not, by construction or intendment, create offenses under
statutes which are not in express terms created by the Legislature. Williams, 347 Ark. at 742,
67 S.W.3d 548. We are without authority to declare an act to come within the criminal laws
of this state by implication. Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984). It would
violate the accepted canons of interpretation to declare an act to come within the criminal
laws of the State merely by implication. Lewis v. State, 220 Ark. 259, 247 S.W.2d 195 (1952)
(citing State v. Simmons, 117 Ark. 159, 174 S.W. 238 (1915)). Nothing is taken as intended
which is not clearly expressed. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993);
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Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989).
Heikkila is instructive in this case. In Heikkila, the court interpreted the incest statute, Ark.
Code Ann. § 5-26-202 (Repl. 1997), and determined that it applied to an uncle by marriage.
Heikkila, 352 Ark. at 91, 98 S.W.3d at 807. In so finding, the court in Heikkila explained:
The incest statute prohibits sexual intercourse or deviate sexual activity with five named
categories of persons, including “ uncle, aunt, nephew or niece.” The word “niece” is not
defined in the statute. However, the statute in its express terms creates criminal liability for
sexual intercourse or deviate sexual activity with one's niece. Webster's defines a niece as a
female descendant or relative, a daughter of one's brother or sister, or a daughter of one's
brother-in-law or sister-in-law. Black's defines niece as “the daughter of a person's brother
or sister; sometimes understood to include the daughter of a person's brother-in-law or sisterin-law.” Black's Law Dictionary 1066 (7th ed.1999). Webster's Third New International
Dictionary, 1526 (1993). Both nieces in this case were the daughters of Heikkila’s sister-inlaw. When the words used in a statute have a well-defined meaning, and the wording of the
statute is clear, we give those words their plain meaning. Boyd v. State, 313 Ark. 171, 853
S.W.2d 263 (1993). Therefore, under the express terms of the statute, the conduct between
Heikkila and his nieces was prohibited.
Id. Here, the rape statute prohibits sexual intercourse or deviate sexual activity with different
categories of people including an uncle, aunt, grandparent, step-grandparent, or grandparent by
adoption. The word “uncle” is not defined in the statute. Moreover, the word “uncle” is not defined
in the latest edition of Black’s Law Dictionary. Black’s Law Dictionary 1560 (8th ed. 2004).
However, Webster’s Third New International Unabridged Dictionary defines “uncle” as “1a: the
brother of one’s father or mother” and “1b: the husband of one’s aunt . . . .” Webster’s Third New
International Unabridged Dictionary 2485 (1993). Thus, general understanding of the word “uncle”
includes the husband of a blood aunt.
In this case, we reject appellant’s interpretation of the relevant statute and hold that appellant
was the victim’s uncle, per the plain meaning of the wording of the statute. As does the incest statute
at issue in Heikkila, the rape statute in the present case protects the integrity of the family. The
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familial relationship extends to a relationship by affinity as well as a blood relationship. Sexual
intercourse between a girl under eighteen and her uncle by marriage is equally disruptive of the
family as would be sexual activity between her and her uncle by blood. See Heikkila, supra. In
keeping with this purpose, we hold that ample evidence supports the fact that appellant, the victim’s
uncle, engaged in sexual intercourse with the victim when she was less than eighteen years old.
Appellant also presents a speedy-trial argument. He alleges that the trial court erred by
denying his motion to dismiss for lack of a speedy trial. The right to a speedy trial is expressed in
the Bill of Rights, U.S. Const. amend. 6, and guaranteed to state criminal defendants by the
Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213 (1967). Arkansas Rules of
Criminal Procedure 28.1(c) and 28.2(a) require the State to bring a defendant to trial within twelve
months from the date the charge is filed in circuit court or, if the defendant has been lawfully set at
liberty pending trial, from the date of arrest. See also Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365
(2000). We have placed responsibility on the defendant to be available for trial; therefore, such time
delays which result from a failure to appear for trial are excluded. Ballard v. State, 75 Ark. App. 15,
53 S.W.3d 53 (2001) (citing Henson v. State, 38 Ark. App. 155, 832 S.W.2d 269 (1992)); see also
Ark. R. Crim. P. 28.3(e). However, the State has the burden to show that any delay was the result
of the defendant’s conduct or was otherwise justified. Id. (citing Scott v. State, 337 Ark. 320, 989
S.W.2d 891 (1999)). The State also has the duty to show that it made diligent, good-faith effort to
bring the accused to trial. Id. (citing Brown v. State, 330 Ark. 239, 952 S.W.2d 673 (1997); Duncan
v. Wright, 318 Ark. 153, 883 S.W.2d 834 (1994); Chandler v. State, 284 Ark. 560, 683 S.W.2d 928
(1985)).
Arkansas Rule of Criminal Procedure 28.3 states in relevant part as follows:
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The following periods shall be excluded in computing the time for trial.
(c) The period of delay resulting from a continuance granted at the request of the defendant
or his counsel. All continuances granted at the request of the defendant or his counsel shall
be to a day certain, and the period of delay shall be from the date the continuance is granted
until such subsequent date contained in the order or docket entry granting the continuance.
In the present case, appellant contends that the appropriate dates for exclusion ran from the dates of
each of his motions for a continuance until the next pre-trial date following the relevant motion. We
disagree. Each of appellant’s requests for continuances caused the case to be continued from a
certain trial date to a trial date that was not specifically ascertainable until after the pre-trial hearing.
Clearly, a motion for a continuance necessitates a delay until a jury can be impaneled to hear the
case. Therefore, the period of time from one set trial date to the next is attributable to appellant and
excludable for purposes of speedy trial.
Here, the record demonstrates that appellant filed his first motion for a continuance on July
18, 2007. His motion was granted, and the trial date was rescheduled for September 24, 2007.
Appellant also filed a second motion for a continuance on November 13, 2007. That motion was
also granted and a new trial date was set for January 2, 2008. Again, on January 2, 2008, appellant
requested and was granted yet another continuance. The trial date was then rescheduled for March
17, 2008. Each of the three delays in appellant’s trial dates was a result of his own motions for
continuances, which pursuant to Ark. R. Crim. P. 28.3(c) was time that was properly excluded in
calculating the time for trial. See Branning v. State, 371 Ark. 433, 267 S.W.3d 599 (2007) (stating
that delays resulting from continuances given at the request of the defendant are excluded in
calculating time for speedy trial). Excluding the time periods related to appellant’s motions for
continuances puts the March 17, 2008 trial date within the one-year time period for speedy trial.
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Affirmed.
VAUGHT , C.J., and MARSHALL, J., agree.
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