Opinion
CA CR 09-506
Opinion Delivered October 21, 2009
Appeal from the Sebastian County Circuit Court, [No. CR-07-1013], Honorable J. Michael Fitzhugh, Judge, Affirmed.
Perry Dwayne Ray appeals from an order of the Sebastian County Circuit Court revoking the suspended imposition of sentence (SIS) he received pursuant to a March 24, 2008 guilty plea on the charge of criminal mischief. Pursuant to the revocation, Ray was sentenced to one year in the county jail. On appeal, he argues that there was insufficient evidence to support the revocation. We affirm.
On November 5, 2008, the State petitioned to revoke Ray's SIS. It alleged that he had violated the terms and conditions of the SIS by committing the criminal offense of rape on October 17, 2008. A hearing on the petition was held on January 21, 2009.
At the hearing, the victim testified that one evening while she was living in an RV owned by Ray, he entered and forced himself upon her. Despite her protests and physical struggles, Ray pinned her down, kissed her, pulled down her sweat pants, and inserted his finger into her anus and vagina. He also rubbed his penis on her leg. She claimed that she broke free of Ray, grabbed pants and shoes, and left the trailer. She went to a store, where she was allowed to use the telephone, and eventually went to the home of Patrick Johnson, an ex-boyfriend. The victim denied that she and Ray had ever been boyfriend and girlfriend, although she admitted that he had spent the night in the RV, in a separate bunk bed.
Jamie Flowers, a forensic sexual-assault nurse, testified that she examined the victim at two o'clock on the morning of October 17, 2008. She noted that there were bruises on the victim's chest, abdomen, back of the neck, thighs, and right shoulder blade, and scratches on her left forearm and the posterior of her right forearm. During a pelvic exam, a one centimeter laceration to the right labia was discovered, along with an erythema or redness to the left side, which Flowers opined was evidence of "recent activity" in the area. Nurse Flowers noted that when she got to the "evidence collection" part of the exam, the victim was unable to sit on a standard exam table because she was in extreme discomfort due to the bruising, tearing, and trauma. The State also introduced Nurse Flowers's forensic report, which included her interview with the victim taken shortly after the incident. Included in the interview was the victim's recollection that before he forced himself on her, Ray had told her, "No one would love [you] like [I do], let me touch you, let me caress you." The assault occurred after she refused his advances. Color photographs that depicted the extensive bruising to the victim's upper body were also introduced.
Patrick Johnson testified that the victim called him on the night in question and took a taxi to his residence. He stated that she told him that she was beaten up and sexually assaulted, but provided no details, only showing him a "big ole bruise" on her leg. Johnson stated that he notified the police. He also admitted to having a physical altercation with the victim just days before the alleged rape.
Ray's mother, Berneta Ray, testified that her son had been living with the victim in the RV, estimating that they had stayed together for about nine days. She stated that Ray told her that a police report had been filed accusing him of rape, but when she confronted the victim, the victim told her "it didn't happen." Jim Burdette, an acquaintance of both Ray and the victim, who worked at a local bar, stated that he observed them at the club behaving romantically. Terry Breedlove, a friend of Ray's, testified that Ray brought the victim to Breedlove's house one time for a social occasion.
At the conclusion of the hearing, the trial court revoked Ray's SIS. After the hearing, Ray filed a motion styled "Motion for Written Statement of Evidence Relied Upon by the Court." In it, he asked the trial court to provide a "written statement of the evidence that the court relied upon in revoking a previous suspended imposition of sentence." The trial court responded that it found that the victim had been physically assaulted, battered, and sexually assaulted by Ray, based on the bruising on the victim's arm, chest, neck, back, and legs, as well as the vaginal laceration. The trial court also cited the testimony of the victim that Ray had "digitally inserted his finger in her anus and between her legs."
On appeal, Ray argues that the trial court erred in revoking his SIS because the evidence did not support the finding that he violated the terms and conditions and because the order is "silent as to the finding of rape" and "fall[s] short of the actual determination of rape." With respect to the sufficiency of the evidence, in a revocation proceeding, the burden is on the State to prove the violation of a condition of probation or suspended sentence by a preponderance of the evidence. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). The trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Id. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. Id. In our review, we defer to the trial judge on questions of credibility. Id.
Regarding the first part of Ray's argument, he concedes that the testimony of a rape victim alone is sufficient to support a rape conviction and that we defer to the trial judge to determine the credibility of the witnesses. Nonetheless, he urges us to find the victim's testimony inadequate, because it was Johnson, not the victim, who notified the police, and the victim's credibility was cast into doubt by her "conflicting testimony" about how she met Ray and the nature of her relationship with him. Further, he asserts that the physical evidence was insufficient to corroborate the victim's testimony because Nurse Flowers could not say with certainty that the laceration to the victim's right labia and the erythema on the left side were caused by rape. We find this argument unconvincing.
The applicable rape offense in this case is defined under Arkansas Code Annotated section 5-14-103(a) (Repl. 2006), which states: "A person commits rape if he or she engages in . . . deviate sexual activity with another person: (A) By forcible compulsion." "Deviate sexual activity" is defined as "any act of sexual gratification involving the penetration, however slight, of the labia majora of one person by any body member or foreign instrument manipulated by another person." Ark. Code Ann. § 5-14-101(1), (9) (Repl. 2006). "Forcible compulsion" means physical force or a threat, express or implied, of death or physical injury to or kidnaping of any person. Ark. Code Ann. § 5-14-101(2) (Repl. 2006). As Ray noted, it is well-established law that the uncorroborated testimony of a rape victim is sufficient to support the higher burden of proof required for a conviction if the testimony satisfies the statutory elements of rape. Butler v. State, 349 Ark. 252, 82 S.W.3d 152 (2002).
Here the victim testified that after professing his desire to touch and caress her, despite her protests, Ray grabbed her, pinned her down, pulled off her sweat pants, and inserted his finger in her vagina. The victim displayed extensive bruising after the assault. We hold that this testimony reaches all of the elements of rape. Further, we note that at Ray's request, the trial court made an express finding that he relied on the victim's testimony. Given our longstanding practice to defer to the trial judge on issues of witness credibility, we must reject Ray's invitation to do otherwise.
Regarding the latter portion of Ray's argument, he urges us to find analogous Harris v. State, 98 Ark. App. 264, 254 S.W.3d 789 (2007), where this court reversed a revocation. However, we find that Harris does not control. In Harris, the State alleged in its revocation petition that Harris had violated the written terms and conditions of his suspended sentence by committing the offenses of burglary, third-degree battery, first-degree criminal mischief, and third-degree domestic battery. However, the trial court found that there was not a breaking and entering or a theft of property, but nonetheless found Harris was "clearly guilty of being involved in malicious mischief and a fray, which is in violation of the terms and conditions of good conduct." We reversed, reasoning that "malicious mischief" was not alleged in the petition, and we have held that it is fundamentally unfair to revoke probation on the basis of a violation not mentioned in the revocation petition because a defendant cannot properly prepare for the hearing without knowing in advance what charges of misconduct are to be investigated as a basis for the proposed revocation of the probation.
In the instant case, the State only alleged a single basis for revoking Ray's SIS — that he had committed rape. Further, as we have already noted, the evidence adduced at the hearing satisfied all of the elements of our rape statute. Finally, we do not read the trial court's response to Ray's Motion for Written Statement of Evidence Relied Upon by the Court to be anything but a straight-forward recitation of the evidence that it found related to the elements of rape. Accordingly, we affirm.
Affirmed.
GLOVER, J., agrees;
PITTMAN, J., concurs.