Opinion
CA CR 09-484
Opinion Delivered February 3, 2010
Appeal from the Crittenden County Circuit Court, [No. CR-07-1051], Honorable John N. Fogleman, Judge, Affirmed.
Appellant Daniel Edward Nichols appeals his convictions after a jury trial for two counts of permitting abuse of a minor. These convictions rested on allegations that appellant permitted his two sons, ten-year-old EN and eleven-year-old DN, to be subjected to deviate sexual activity at the behest of his roommate, Robert Adams. Appellant was acquitted of two other charges, which were for permitting the abuse of each minor by allowing Robert Adams to physically abuse them by whipping or beating. Appellant appeals, challenging the sufficiency of the evidence to sustain the two convictions, contending that there was no physical evidence to support that EN and DN were sexually abused so that he could not have acted "recklessly" in failing to stop the abuse. We affirm.
At a jury trial, a challenge to the sufficiency of the evidence is preserved by defense counsel asserting a motion for directed verdict in accordance with Ark. R. Crim. P. 33.1. Such a motion must specify the respect in which the State's proof is lacking, it must be made at the proper times, and it limits the arguments that may be raised on appeal to those arguments raised in the motion. See, e.g., Benjamin v. State, 102 Ark. App. 309, 285 S.W.3d 264 (2008). Here, appellant's attorney presented the following in his motion for directed verdict:
[T]he State has failed to prove their, prove their case in the light most favorable to them. The specific factors are that there is conflicting testimony and it doesn't exist as to whether the incidents took place in Arkansas or Tennessee, number one. Number two: A specific fact would be that there's no physical evidence. The-and I'll stop there.
In the motion, there was no challenge to the existence of the required mental state of the accused. One is bound by the scope and nature of the motion made at trial. See id. To the extent that appellant argues that the State failed to prove that he had the required mental state to sustain his two convictions, we believe that the State correctly asserts that appellant's argument is not preserved for review. Thus, our assessment of the sufficiency of the evidence is limited to the proof that deviate sexual activity occurred at all.
Arkansas Code Annotated section 5-27-221 (Repl. 2006) defines the crime of permitting abuse of a minor, and it provides in relevant part that one is guilty of this crime if he is a parent of a minor, and he "recklessly fails to take action to prevent the abuse of a minor." Id. at subsection (a). "Abuse" is defined in subsection (d)(1) to include "deviate sexual activity," which was what the jury found happened. "Deviate sexual activity" is defined in our criminal code to mean "any act of sexual gratification involving the penetration, however slight, of the anus or mouth of one person by the penis of another person." Ark. Code Ann. § 5-14-101(1)(A).
At the trial, both EN and DN testified that they had told their father (appellant) that Mr. Adams sexually abused them by placing his penis in each of their mouths, but that their father did not believe them or do anything about it. Mr. Adams testified at trial and, although he denied actually doing such things, he admitted that he pleaded guilty to two counts of rape. On appeal, appellant challenges the proof that deviate sexual activity occurred at all in the absence of "physical evidence." Nowhere in our criminal code is physical evidence of rape or deviate sexual activity required, nor do we find such a requirement in our case law. Compare Shields v. State, 281 Ark. 420, 664 S.W.2d 866 (1984). In fact, the testimony of a victim will suffice if it meets with the statutory definition. Hayes v. State, 374 Ark. 384, 288 S.W.3d 204 (2008).
When an appellant challenges the sufficiency of the evidence to support a conviction on appeal, this court's test is whether there is substantial evidence to support the verdict. Britt v. State, 83 Ark. App. 117, 118 S.W.3d 140 (2003). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. In determining whether the evidence is substantial, evidence is viewed in the light most favorable to the State, considering only the evidence that supports the verdict. Id.
The fact-finder was the sole determiner of credibility, and here, the jury believed the testimony of the boys that the deviate sexual activity occurred, although their father did not. Thus, the trial court's denial of the motion for directed verdict was proper.
We affirm appellant's convictions for permitting the sexual abuse of his sons.
VAUGHT, C.J., and PITTMAN, J., agree.