Rains v. State

George T. RAINS v. STATE of Arkansas

CR 97-245                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 25, 1997


1.   Appeal & error -- arguments not raised at trial not addressed on appeal. -
     - Arguments not raised at trial will not be addressed for the
     first time on appeal; parties cannot change the grounds for an
     objection on appeal and are bound by the scope and nature of
     their objections and arguments presented at trial.

2.   Motions -- directed verdict -- general renewal of specific motion preserves
     sufficiency challenge for review. -- Where a defendant's first
     motion for directed verdict is specific regarding the missing
     proof, but his motion at the close of the evidence is merely
     a general renewal of the first motion, his challenge to the
     sufficiency of the evidence is preserved for appellate review;
     it is the opportunity of the trial court to first hear and
     address the parties' arguments that is of importance in
     determining whether the argument has been preserved for
     appeal; that both directed-verdict motions are not identical
     will not bar an appellant's argument on appeal.

3.   Motions -- directed verdict -- stating additional grounds in final motion
     does not bar review. -- Where appellant made specific motions for
     directed verdict at the end of the State's case and at the
     close of all the evidence, the fact that he stated additional
     grounds in his final motion did not bar appellate
     consideration of them; therefore, because appellant did not
     raise any issues on appeal that were not first presented to
     the trial court, the supreme court reached the merits of the
     sufficiency argument.  

4.   Motions -- directed verdict -- challenge to sufficiency of evidence --
     factors on review. -- On appeal, a motion for directed verdict is
     treated as a challenge to the sufficiency of the evidence; the
     appellate court views the evidence in a light most favorable
     to the State and considers only that evidence which supports
     the verdict; evidence, whether direct or circumstantial, is
     sufficient to support a conviction if it is forceful enough to
     compel reasonable minds to reach a conclusion one way or the
     other; the appellate court does not, however, weigh the
     evidence presented at trial, as this is a matter for the
     factfinder; nor will the court weigh the credibility of
     witnesses.

5.   Criminal law -- rape -- single crime rather than continuing offense. --
     Rape is not defined as a continuing offense; rather, it is a
     single crime that may be committed by either engaging in
     sexual intercourse or deviate sexual activity with another
     person who is less than fourteen years of age; where the
     prosecutrix testifies as to multiple acts of rape of a
     different nature, separated in point of time, there is no
     continuing offense because a separate impulse is necessary for
     the commission of each offense.

6.   Criminal law -- rape -- uncorroborated testimony of victim will support
     conviction. -- The uncorroborated testimony of a rape victim,
     whether adult or child, is sufficient to support a conviction.

7.   Criminal law -- sexual abuse -- victim's testimony need not be
     corroborated. -- The victim's testimony need not be corroborated
     to demonstrate sufficient evidence of first-degree sexual
     abuse.

8.   Jury -- duty to resolve inconsistencies in testimony. --
     Inconsistencies in the testimony of victims are matters of
     credibility for the jury to resolve.

9.   Criminal law -- sexual abuse -- unnecessary for State to prove motive of
     sexual gratification. -- In cases of sexual abuse, it may be
     assumed that the defendant had sexual contact with the victim
     for the purpose of sexual gratification, and it is not
     necessary for the State to directly prove that he was so
     motivated.

10.  Criminal law -- sexual offenses -- State need not prove when and where
     each act occurred -- time not essential element. -- It is not
     necessary for the State to prove specifically when and where
     each act of rape or sexual contact occurred, as time is not an
     essential element of the crimes; it is rare that youthful
     victims of sexual abuse can provide exactness as to the time
     an offense occurred, and any discrepancies in the testimony
     concerning the date of the offense are for the jury to
     resolve.

11.  Criminal law -- attempted rape -- necessary proof. -- To prove a charge
     of attempted rape, it must be shown that the defendant's
     actions constituted a substantial step in a course of conduct
     intended to culminate in the commission of rape.

12.  Criminal law -- sexual abuse -- evidence sufficient to sustain convictions
     on two counts. -- The testimony of two of the victims was more
     than sufficient to prove that appellant engaged in an act of
     sexual gratification with the girls, who were both under the
     age of fourteen, involving the direct touching of his penis;
     the evidence was sufficient to sustain the convictions on two
     counts of first-degree sexual abuse.

13.  Criminal law -- rape -- evidence sufficient to sustain convictions on two
     counts of rape and one count of attempted rape. -- The children's
     testimony sufficiently established appellant's acts of deviate
     sexual activity against each child and the act of attempted
     penetration of one girl's vagina; the evidence was sufficient
     to sustain the convictions on two counts of rape on a specific
     date and one count of attempted rape.

14.  Criminal law -- rape -- evidence sufficient to sustain convictions on four
     counts of rape. -- The testimony of two of the victims was more
     than sufficient to sustain the convictions on four counts of
     rape involving deviate sexual activity against both children.

15.  New trial -- motion deemed denied if not resolved by trial court within
     thirty days. -- Where a posttrial motion, such as a motion for
     new trial, is not resolved by the trial court within thirty
     days from the date of its filing, it is deemed denied pursuant
     to Ark. R. App. P.--Crim. Rule 2. 

16.  New trial -- notice of appeal of denial untimely -- that part of appeal
     dismissed. -- Where appellant's motion for new trial was deemed
     denied as of November 3, 1996, and where he had thirty days
     within which to file a notice of appeal from that denial,
     which expired on December 3, 1996, it was of no benefit to him
     that the trial court belatedly denied the motion for new trial
     on February 24, 1997, as the trial court lacked jurisdiction
     to do so; because appellant did not file his notice of appeal
     of the order denying the motion for new trial until February
     26, 1997, the supreme court dismissed that part of the appeal.

     Appeal from Boone Circuit Court; Robert McCorkindale II,
Judge; affirmed.
     Buford Gardner, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Donald L. Corbin, Justice.
     Appellant George T. Rains appeals the judgment of conviction
of the Boone County Circuit Court for six counts of rape, one count
of attempted rape, and two counts of first-degree sexual abuse. 
The trial court sentenced Appellant as a habitual offender to a
term of life imprisonment on each count of rape, sixty years'
imprisonment on the count of attempted rape, and two terms of
thirty years' imprisonment on each count of first-degree sexual
abuse.  Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). 
Appellant raises two points for reversal.  We find no error and
affirm. 
     Appellant's convictions stem from his having engaged in sexual
acts with three minor victims, namely his son J.P., his
stepdaughter S.D., and his niece D.C.  The sexual acts occurred
over a period of time from June 1993 through February 1996, during
which time J.P. was five to seven years old, S.D. was six to eight
years old, D.C. was eight to ten years old, and Appellant was
thirty-six to thirty-nine years old.  The information charged that
on or about February 3, 1996, Appellant committed two counts of
rape, one count each against J.P. and S.D.  Also on or about
February 3, 1996, the information charged Appellant with the
attempted rape of S.D.  The four remaining counts of rape, charged
in the information as having occurred sometime between June 1993
and February 1996, involved two counts against J.P. and two counts
against S.D.  Specifically, as to the two counts against J.P., the
information charged that Appellant had made J.P. place his
(Appellant's) penis in the child's mouth and that Appellant had
also placed his penis in J.P.'s anus.  As to the two remaining
counts of rape against S.D., the information reflected that
Appellant had made S.D. place his (Appellant's) penis in her mouth
and that Appellant had also placed his tongue inside S.D.'s vagina. 
Lastly, the information charged Appellant with two counts of first-
degree sexual abuse for having engaged in sexual contact with S.D.
and D.C. on a date sometime between June 1993 and February 1996.  
                 I.  Sufficiency of the Evidence
     For his first point for reversal, Appellant argues that there
was insufficient evidence to sustain his convictions.  He contends
that the children's testimony was vague and unclear and that his
convictions were based upon the jury's passion, rather than the
evidence.  The State argues that this point is procedurally barred
because the grounds raised in Appellant's first motion for directed
verdict differed from those raised in his motion at the close of
all the evidence.  It is the State's contention that because
Appellant did not argue the lack of evidence of sexual penetration
or deviate sexual activity in his first motion for directed
verdict, that argument is not preserved for appeal.  We disagree. 
     It is well settled that arguments not raised at trial will not
be addressed for the first time on appeal, and that parties cannot
change the grounds for an objection on appeal and are bound by the
scope and nature of their objections and arguments presented at
trial.  Evans v. State, 326 Ark. 279, 931 S.W.2d 136 (1996).  Where
the defendant's first motion for directed verdict was specific as
to the missing proof, but his motion made at the close of the
evidence was merely a general renewal of the first motion, his
challenge to the sufficiency of the evidence was preserved for
appellate review.  Durham v. State, 320 Ark. 689, 899 S.W.2d 470
(1995).  In Durham, the State argued that because the motion made
at the close of the evidence was not specific, the defendant waived
his challenges to the sufficiency of the evidence on appeal.  This
court ultimately reached the merits of Durham's argument because
the grounds he raised for reversal were the same as those
originally raised to the trial court.  Thus, it is the opportunity
of the trial court to first hear and address the parties' arguments
that is of importance in determining whether the argument has been
preserved for appeal.  That both directed-verdict motions are not
identical will not bar an appellant's argument on appeal.
     Here, Appellant made specific motions for directed verdict at
the end of the State's case and at the close of all the evidence. 
The fact that he stated additional grounds in his final motion does
not bar our consideration of them.  Therefore, because Appellant
has not raised any issues on appeal that were not first presented
to the trial court, we will reach the merits of this argument.  
     On appeal, a motion for directed verdict is treated as a
challenge to the sufficiency of the evidence.  Williams v. State,
329 Ark. 8, 946 S.W.2d 678 (1997).  We view the evidence in a light
most favorable to the State and consider only that evidence which
supports the verdict.  Id.  Evidence, whether direct or
circumstantial, is sufficient to support a conviction if it is
forceful enough to compel reasonable minds to reach a conclusion
one way or the other.  Id.  This court does not, however, weigh the
evidence presented at trial, as this is a matter for the
factfinder.  Dabney v. State, 326 Ark. 382, 930 S.W.2d 360 (1996). 
Nor will this court weigh the credibility of witnesses.  Caldwell
v. State, 319 Ark. 243, 891 S.W.2d 42 (1995).  
     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 (Repl. 1993).  "Deviate
sexual activity" means any act of sexual gratification involving
the penetration, however slight, of the anus or mouth of one person
by the penis of another person or the penetration, however slight,
of the labia majora or anus of one person by any body member or
foreign instrument manipulated by another person.  Ark. Code Ann.
 5-14-101(1) (Supp. 1995).  Rape is not defined as a continuing
offense; rather, it is a single crime that may be committed by
either engaging in sexual intercourse or deviate sexual activity
with, as in this case, another person who is less than fourteen
years of age.  See Tarry v. State, 289 Ark. 193, 710 S.W.2d 202
(1986).  Where the prosecutrix testifies as to multiple acts of
rape of a different nature, separated in point of time, there is no
continuing offense, as a "separate impulse was necessary for the
commission of each offense."  Id. at 195, 710 S.W.2d  at 203.    
     A person commits first-degree sexual abuse if, being eighteen
years old or older, he engages in sexual contact with a person not
his spouse who is less than fourteen years old.  Ark. Code Ann.
 5-14-108 (Repl. 1993).  "Sexual contact" means any act of sexual
gratification involving the touching, directly or through clothing,
of the sex organs, or buttocks, or anus of another person or the
breast of a female.  Ark. Code Ann.  5-14-101(8) (Supp. 1995).
     This court has repeatedly held that the uncorroborated
testimony of a rape victim, whether adult or child, is sufficient
to support a conviction.  Evans, 326 Ark. 279, 931 S.W.2d 136;
Caldwell, 319 Ark. 243, 891 S.W.2d 42; Winfrey v. State, 293 Ark.
342, 738 S.W.2d 391 (1987).  Likewise, the victim's testimony need
not be corroborated to demonstrate sufficient evidence of first-
degree sexual abuse.  McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991).  To the extent there may be inconsistencies in the
victims' testimony, this is a matter of credibility for the jury to
resolve.  Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996).  In
cases of sexual abuse, it may be assumed that the defendant had
sexual contact with the victim for the purpose of sexual
gratification and it is not necessary for the State to directly
prove that he was so motivated.  Holbert v. State, 308 Ark. 672,
826 S.W.2d 284 (1992).  See also McGalliard, 306 Ark. 181, 813 S.W.2d 768; Williams v. State, 298 Ark. 317, 766 S.W.2d 931 (1989). 
     It is similarly not necessary for the State to prove
specifically when and where each act of rape or sexual contact
occurred, as time is not an essential element of the crimes.  See
Douthitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996); Bonds v.
State, 296 Ark. 1, 751 S.W.2d 339 (1988).  It is rare that youthful
victims of sexual abuse can provide exactness as to the time an
offense occurred and any discrepancies in the testimony concerning
the date of the offense are for the jury to resolve.  Yates v.
State, 301 Ark. 424, 785 S.W.2d 119 (1990).  In order to prove a
charge of attempted rape, it must be shown that the defendant's
actions constituted a substantial step in a course of conduct
intended to culminate in the commission of rape.  Daffron v. State,
318 Ark. 182, 885 S.W.2d 3 (1994).   
     J.P. testified at trial that on at least four occasions,
Appellant put his "private" or "wiener" in J.P.'s anus or in his
mouth, making J.P. suck on it.  He stated that Appellant had also
put his (J.P.'s) wiener in his (Appellant's) mouth and sucked on
it.  He stated that these acts occurred three times at the trailer
near Dogpatch, where he lived with Appellant, his mother, and S.D.
He stated that the acts occurred once at his grandmother's house in
Bergman.  He stated that Appellant had also put his wiener in
S.D.'s private.  He stated that sometimes "gooey," "yellow" stuff
would come out of Appellant's wiener.  He stated that the last time
such acts had occurred was at his grandmother's house, while his
grandmother was gone and he was alone with Appellant and S.D.  He
stated that on that occasion, Appellant told him to suck on
Appellant's wiener and that he did as he was told.  He stated that
Appellant put his wiener into his (J.P.'s) anus and that it hurt,
but that he did not cry.  He stated that he remembered Appellant
"coming" on S.D. while she was on the bed with Appellant.  He
stated that Appellant made S.D. suck on his (Appellant's) wiener. 
He stated that during each incident that occurred at the trailer,
Appellant made him put his (Appellant's) wiener in his mouth, and
that S.D. was present each of those three times.  He stated that
the incident in Bergman was not the only time that Appellant put
his wiener in his (J.P's) anus.  
     S.D. testified that Appellant was her step-dad and that at one
time she had lived with Appellant, her mother, and J.P. in a
trailer in Dogpatch.  She stated that Appellant made her suck his
"thingy," which she said was her word for penis.  She stated that
Appellant had made her do this in too many places to remember, but
that he had made her perform such acts of oral sex on him on more
than three occasions while they lived at the trailer.  She stated
that when Appellant would make her put his thingy in her mouth she
would be dressed and he would be wearing a shirt.  She stated that
Appellant had also licked her thingy, which she described as being
between her legs, where she goes to the bathroom.  She stated that
on one occasion Appellant tried to put his thingy inside her
thingy.  She stated that Appellant would get on top of her or put
her on top of him, while her clothes were off and he was wearing a
shirt, and would rub on her.  She stated that stuff would come out
of Appellant's thingy on different occasions at the trailer and at
her grandmother's house in Bergman, and that it had got on her and
it felt "yucky."  She stated that when Appellant tried to put his
thingy in her thingy, it hurt and it tickled, but that it mostly
tickled when he rubbed it against her.  She stated that she had
also seen Appellant doing the same kinds of things to J.P., putting
J.P.'s thingy in his mouth and sucking on it, and making J.P. suck
his thingy.  She stated that on one occasion while she was staying
at her Aunt Marsha's house, when she was six years old, Appellant
had made her and her cousin, D.C., put their hands on his thingy. 
She stated that the last time Appellant had abused her was at her
grandmother's house about two weeks before her Aunt Marsha
questioned her about the abuse.  
     D.C. testified that Appellant was her uncle and that he had
lived with her family at different times.  She stated that during
one of the times when Appellant was living with them, about two or
two and one-half years ago, Appellant had made her and S.D. touch
his private part.  She stated that her mother had gone to the store
and that Appellant had told the two girls to go to bed.  She said
Appellant later came into their bedroom and made them touch his
penis.  She stated that Appellant made each of the two girls take
turns touching it, and that it got hard at one time and white stuff
came out of it.  She stated that when her mother started pulling
into the driveway, Appellant made the girls get into bed and then
went into the living room.   
     Marsha Douglas, D.C.'s mother and Appellant's sister, 
testified that Appellant was married to S.D.'s and J.P.'s mother
until February 1995.  She stated that while Appellant was married
to the children's mother, they had lived in a trailer in Dogpatch,
off Highway 7.  She stated that Appellant had lived with her and
her family in Bergman on two different occasions, the first being
two and one-half to three years ago, and the second being around
the end of April 1995.  She stated that she became aware of the
sexual abuse in February 1996, while she was questioning the
children about two events, which occurred at their grandmother's
house in Bergman, involving some of the children performing oral
sex on each other.  She stated that when she questioned D.C., the
child told her that Appellant had made her and S.D. fondle him a
couple of years earlier, when Appellant had lived with them.  She
stated that she then questioned S.D. and J.P. separately and that
both children told her about the abuse.      
     From the foregoing evidence, it is clear that there was
sufficient evidence presented to the jury to sustain the
convictions against Appellant.  Concerning the two counts of first-
degree sexual abuse, both S.D. and D.C. stated that Appellant had
made them touch his penis.  D.C., the older of the two girls,
stated that Appellant made the girls take turns touching him and
that his penis got hard and that white stuff came out of it.  Such
testimony is more than sufficient to prove that Appellant engaged
in an act of sexual gratification with the girls, who were both
under the age of fourteen, involving the direct touching of his
penis.  
     As for the two counts of rape on February 3, 1996, both J.P.
and S.D. testified that Appellant made them engage in oral sex with
him.  Additionally, J.P. stated that on that occasion, Appellant
put his wiener in the child's anus.  As to the count of attempted
rape, which also occurred on that date, S.D. stated that Appellant
had tried to put his thingy in her thingy and that it hurt and
tickled.  J.P. corroborated S.D.'s testimony by stating that
Appellant put his wiener in S.D.'s private.  The children's
testimony sufficiently establishes the acts of deviate sexual
activity against each child and the act of attempted penetration of
S.D.'s vagina.
     As for the four remaining counts of rape alleged to have
occurred during the time the children lived with Appellant in the
trailer in Dogpatch, there was sufficient evidence presented by
both J.P. and S.D. to support the convictions.  J.P. testified that
on at least four occasions, Appellant had made him perform oral sex
or had engaged in anal sex with him.  On three occasions at the
trailer, J.P. stated that Appellant made J.P. suck his wiener.  He
also stated that the incident in Bergman was not the only time
Appellant had put his wiener in J.P.'s anus.  S.D. stated that
Appellant made her suck his thingy on more than three occasions
while they lived at the trailer and that Appellant had licked her
thingy.  Clearly, this testimony is more than sufficient to sustain
the four counts of rape involving deviate sexual activity against
both J.P. and S.D.     
                   II.  Motion for New Trial 
     For his second point for reversal, Appellant argues that the
trial court erred in failing to have Appellant present for the
hearing on his motion for new trial.  This point is procedurally
barred because Appellant did not file a timely notice of appeal of
this issue.
     The record reflects that a judgment and commitment order
against Appellant was filed on September 4, 1996, and that
Appellant filed his notice of appeal on September 20, 1996.  An
amended judgment and commitment order was filed on October 2, 1996,
of which Appellant filed a second notice of appeal on October 4,
1996.  Also on October 4, 1996, Appellant filed a motion for new
trial based upon juror misconduct.  On February 24, 1997, some 143
days after the motion was made, an order denying the motion was
filed.  Appellant then filed an additional notice of appeal on
February 26, 1997.  
     Recently, in Harris v. State, 327 Ark. 14, 935 S.W.2d 568
(1997), we held that where a posttrial motion, such as a motion for
new trial, is not resolved by the trial court within thirty days
from the date of its filing, it is deemed denied pursuant to Ark.
R. App. P.--Crim. Rule 2.  In that case, the judgment of conviction
against Harris was entered on October 5, 1995, and Harris filed a
motion for new trial on October 16, 1995, asserting juror
misconduct.  Fifty-one days after Harris filed his motion, on
December 6, 1995, the trial court entered its order denying the
motion.  Harris filed his notice of appeal on January 2, 1996.  We
concluded that because Harris's motion for new trial was filed on
October 16, 1995, it was deemed denied thirty days later on
November 15, 1995, and that his notice of appeal was thus untimely.
     In the present case, Appellant's motion for new trial was
deemed denied as of November 3, 1996.  Accordingly, Appellant had
thirty days within which to file a notice of appeal from that
denial, which expired on December 3, 1996.  It is of no benefit to
Appellant that the trial court belatedly denied the motion for new
trial on February 24, 1997, as the trial court lacked jurisdiction
to so rule.  Id.  Therefore, because Appellant did not file his
notice of appeal of the order denying the motion for new trial
until February 26, 1997, we dismiss this part of the appeal.      
                        III.  Rule 4-3(h)
     In accordance with Rule 4-3(h) of the Arkansas Supreme Court
Rules, the record has been reviewed for adverse rulings objected to
by Appellant but not argued on appeal, and no such errors were
found.  For the aforementioned reasons, the judgment of conviction
is affirmed.    
     Glaze and Imber, JJ., concur.

             TOM GLAZE, Associate Justice, concurs.

     I concur in affirming this case, but write to disagree with
the majority court's decision to reach the merits regarding
appellant's motion for directed verdict questioning the sufficiency
of the State's proof on the elements of penetration and deviant
sexual conduct.  In stating his motion for directed verdict at the
end of the State's case, appellant contended the State had failed
to prove rape because the State never showed when and where these
events occurred.  No mention was made that the State had failed to
show the elements of penetration or deviant sexual conduct.  It was
only after the defense had rested, and at the close of all
evidence, that appellant renewed his directed-verdict motion,
stating the State had failed to prove the time and place of the
rapes and the elements of penetration or deviant sexual conduct. 
     Rule 33.1 of the Arkansas Rules of Criminal Procedure provides
that the failure of a defendant to move for a directed verdict at
the conclusion of the State's case and at the close of the case
because of insufficiency of the evidence will constitute a waiver
of any question pertaining to the sufficiency of the evidence to
support the jury verdict.  Rule 33.1 further requires the defendant
to specify the respect in which the evidence is deficient, and the
renewal of a previous motion for a directed verdict at the close of
all the evidence preserves the issue of insufficient evidence for
appeal.  
     In Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995), this
court made clear that our case law does not militate against the
renewal of the same, earlier, specific directed verdict motion at
the end of all the proof.  However, this court has never intimated
that a defendant may omit a reason(s) in defendant's directed-
verdict motion at the end of the State's case, and later add it
when defendant moves for directed verdict at the close of all the
evidence.  Obviously, if this were the rule, a defendant could
simply delay and withhold defendant's real reasons for directed
verdict until after all evidence has been presented.
     In Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), this
court thoroughly discussed and explained the standard for
preserving an insufficiency-of-the-evidence argument and set out
the practical reasons for requiring that the grounds be specified
in a defendant's directed-verdict motion.  One reason is that, in
multiple-count cases, it is easy for an element to be overlooked. 
Another reason given by the Walker court is stated as follows:
     The reasoning underlying our holdings is that when
     specific grounds are stated and the absent proof is
     pinpointed, the trial court can either grant the motion,
     or, if justice requires, allow the State to reopen its
     case and supply the missing proof.
See also Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997).
     In the present case, as clearly set forth in the majority
opinion, the State's proof sufficiently proved all elements of the
rape counts.  However, I am of the view that Rains failed to
preserve his argument pertaining to the penetration and deviant sex
elements, so I would hold Rains is procedurally barred in arguing
those elements in this appeal.
     Imber, J., joins this concurrence.