Dabney v. State

Arthur DABNEY, Jr. v. STATE of Arkansas

CR 96-598                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 21, 1996


1.   Evidence -- review of sufficiency of evidence -- factors on
     review. -- When reviewing the sufficiency of the evidence, the
     court does not weigh the evidence presented at trial; this is
     a matter for the factfinder; instead, the court will review
     the evidence in the light most favorable to the State, and 
     consider only the evidence that supports the guilty verdict;
     the conviction will be affirmed if the evidence is forceful
     enough to compel a conclusion one way or the other and pass
     beyond mere suspicion and conjecture. 

2.   Evidence -- evidence more than sufficient to support trial
     court's conclusion -- attempted-rape conviction affirmed. --
     There was clearly sufficient evidence from which the trial
     judge could have concluded that a blind, helpless woman who
     was unable to see, speak, or move about freely was physically
     unable to communicate the lack of consent to engage in a
     sexual act as required by the statute; the facts suggested
     that the victim's physical condition made it impossible for
     her to be "aware" of appellant's intentions before he actually
     commenced the rape; consequently, it was likely that the
     victim was unaware of what was about to occur and of her need
     to indicate her lack of consent; there was sufficient evidence
     to support the judge's finding that the victim was unable to
     consent due to her "physical helplessness; appellant's
     conviction for attempted rape was affirmed.


     Appeal from Mississippi Circuit Court; John Fogleman, Judge;
affirmed.

     John H. Bradley, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Andree Layton Roaf, Justice.
     The Appellant, Arthur Dabney, was convicted in a bench trial
of the attempted rape of a patient at a nursing home in Osceola,
Arkansas.  He was sentenced as an habitual offender to forty years'
imprisonment.  Dabney asserts on appeal that there was insufficient
evidence to support the judge's finding that the victim was
incapable of consent because she was physically helpless.  We
affirm.
     At the time of the incident, Dabney was working as a laundry
attendant at the nursing home in Osceola.  On July 14, 1995, a
nurse's aide spotted Dabney's laundry cart outside the room of a
fifty-three-year-old patient who was blind, mentally impaired,
partially handicapped, and unable to speak.  The aide peeked behind
a closed curtain in the patient's room and saw Dabney standing by
the patient's bed with his pants down around his knees and his
penis exposed and in an aroused state.  The victim's vest restraint
and gown had been removed, and she had been pulled sideways on the
hospital bed so that her opened legs hung over the lowered bedrail. 
Dabney was standing between the victim's legs and was about to
penetrate her when he saw that he was being observed by the aide. 
The aide called to another employee, who entered the room and
witnessed Dabney pulling his pants up while standing next to the
nude victim.  The aide called Dabney out of the room and told him
that she was going to notify the supervisor. Dabney responded: 
"I'm sorry.  I said I'm sorry.  It's just a white woman anyway."  
     Dabney waived his right to be tried by a jury;  the case was
tried before Judge Fogleman of the Mississippi County Circuit
Court.  The judge found Dabney guilty of attempted rape. Because
Dabney had previously been convicted of rape, possession of a
controlled substance, and burglary, he was sentenced as an habitual
offender to forty years in prison.  
     Dabney was convicted of violating Ark. Code Ann.  5-14-
103(a)(1) (1995), which provides that:

     A person commits a rape if he engages in sexual
     intercourse or deviate sexual activity with another
     person who is incapable of consent because he is
     physically helpless.
A person is "physically helpless" when he or she is "unconscious or
is physically unable to communicate lack of consent."  Ark. Code
Ann.  5-14-101(5) (1995).  For his sole argument on appeal, Dabney
asserts that there was insufficient evidence to support the judge's
finding that the victim was "physically helpless" because the
evidence indicated that she was not "physically unable to
communicate lack of consent" as required by the statute.  
     When reviewing the sufficiency of the evidence, this court
does not weigh the evidence presented at trial; this is a matter
for the factfinder.  Passley v. State, 323 Ark. 301, 915 S.W.2d 248
(1996).  Instead, we will review the evidence in the light most
favorable to the State, and we consider only the evidence which
supports the guilty verdict. Id.  The conviction will be affirmed
if the evidence "is forceful enough to compel a conclusion one way
or the other and pass beyond mere suspicion and conjecture."  Id. 
     At trial, it was established that the victim was fifty-three
years old, blind, and unable to speak.  One witness described her
as a "tiny" woman under five feet tall.  The victim  was confined
to her bed or a wheelchair and was placed in a restraining vest
twenty-four hours a day to prevent her from climbing out of bed and
hurting herself.  She was able to walk and relieve herself only
when assisted by the staff, and she had to be fed and bathed daily.
     As to her ability to communicate, the victim could only grunt,
raise her hand, and shake her head from side to side.  She was
unable to write.  In addition, witnesses testified that the
victim's ability to perceive and comprehend her surroundings was
very limited.  A police detective who attempted to interview the
victim after the incident testified that she was unable to
understand or respond to most of her questions.  The officer
testified that:  "I think the only time I felt she really
understood what I said is when I said, `Shirley do you want to go
back to bed.'"  In addition, a nurse testified that the victim's
ability to communicate was less than that of a five or six-year-old
child; indeed, the appellant admitted at trial that the victim was
"helpless."
     There was clearly sufficient evidence from which the trial
judge could have concluded that a blind, helpless woman who is
unable to see, speak or move about freely was physically unable to
communicate the lack of consent to engage in a sexual act as
required by the statute.  Granted, the victim was not completely
physically incapacitated, but this is not what the statute
requires; it only requires physical helplessness, not total
incapacity.  Ark. Code Ann.  5-14-103(a)(1).
     Furthermore, the comments to Section 5-14-101 indicate that
"physically helpless" includes the situation where "the victim is
aware of what is taking place but is unable to indicate lack of
consent because of paralysis or other physical disability." 
(emphasis added).  Here, the facts suggest that the victim's
physical condition made it impossible for her to be "aware" of
Dabney's intentions before he actually commenced the rape.
Consequently, it is likely that the victim was unaware of what was
about to occur and of her need to indicate her lack of consent. 
Under these circumstances, there was sufficient evidence to support
the judge's finding that the victim was unable to consent due to
her "physical helplessness."
     Dabney argues on appeal that the facts support a charge of
attempted carnal abuse in the second degree, a misdemeanor, rather
than attempted rape.  Specifically, Dabney asserts that it was the
victim's mental, not physical, disability which prevented her from
consenting.  However, there is more than sufficient evidence, that
without regard to her mental infirmities, the victim was so
physically impaired that she was unable to communicate consent. 
     Affirmed.