Opinion
No. CR 09-878
Opinion Delivered March 4, 2010
Appeal from the Circuit Court of Pulaski County, No. CR 2006-3560, Hon. Judge Herbert Thomas Wright, Jr., Affirmed.
Appellant George Hickey appeals his conviction for the rape, kidnapping and first-degree terroristic threatening of Gayle Miller. He was sentenced to life imprisonment and received an additional forty (40) years for each of the other two charges, to be served concurrently. On appeal, Appellant raises two points of error: (1) the State failed to produce sufficient evidence to support his conviction for rape; and (2) the State failed to produce sufficient evidence to support his conviction for kidnapping. We affirm on all points.
On April 7, 2006 Gayle Miller and Tamara "Pam" Wills were walking near the Hudson Fish Market in North Little Rock, Arkansas. They had spent time together throughout that day. In the evening they began smoking crack cocaine and drinking alcoholic beverages. They encountered Derrick "DB" Baker, a friend of Miller, and his friend, Appellant George Hickey. Appellant and Baker were driving in the area and stopped by the side of the road to talk to Miller and Wills. Baker invited the women to go drinking with them and offered the women some vodka. Miller accepted the invitation and they proceeded to Appellant's house to continue drinking. They were in Appellant's home drinking and talking when Baker passed out in a chair. Appellant made some comments to Miller that were disrespectful. Miller responded to those remarks and stated that she was going to leave. Appellant stood up and slammed the front door and said, "You ain't going nowhere, bitch." Miller called out to Baker but he was unresponsive. Appellant told Miller to get in his room. When Miller refused Appellant slapped her in the face and told her, "Get in the room, bitch." He also stated, "I got a .380 bitch," and threatened to kill her if she said anything.
Appellant walked Miller through the house to his room. Once she entered the room, Appellant closed the door to the room. He told Miller to get out of her clothes and that she belonged to him. After he made her take her clothes off, he had Miller bend over and proceeded to have sex with her. He then had her turn around and forced her to perform oral sex on him. He ejaculated on Miller's face. After ejaculating, Appellant bent over and had Miller stick her fingers in his anus and then lick them. Afterward, he told her not to say anything about the incident or he would kill her. He had her wipe her face with a towel to remove any ejaculate. He then told her to put her clothes on and get out. After Miller put her clothes on, she quickly left the house and saw that Baker was still passed out in the chair as she exited. Once outside the house, she ran down the street crying and yelling. A woman came up to her and asked her what happened. Miller told her about the rape. The woman called 911. When the police officer arrived, he found Appellant and Baker sitting in a car outside of Appellant's house listening to music. He asked about any incidents involving a woman. Appellant stated that a woman had stopped by, briefly, asking for some crack but he told her that he did not sell drugs. She then left. Appellant told the officer that he had to leave to go visit his wife and ended the questioning. The officer continued to search the neighborhood and found Miller, who was in an agitated emotional state at this point. Miller told him about the rape and was then transported to a hospital where the doctors examined Miller and collected samples for DNA analysis. The sample did not match Appellant but instead matched the DNA of Miller's fiancé.
Based on the evidence, Appellant was tried and convicted of rape, kidnapping and first-degree terroristic threatening by a jury. A previous trial had resulted in a hung jury. He was sentenced to life imprisonment with an additional forty (40) years concurrent sentences for each of the other two charges. This court has jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a)(2) (2009).
I. Sufficiency of the Evidence-Rape
For his first point on appeal, Appellant argues that the State failed to produce sufficient evidence to convict Appellant of the charge of rape. The test for determining the sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Ellis v. State, 364 Ark. 538, 222 S.W.3d 192 (2006). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Rounsaville v. State, 2009 Ark. 479, ___ S.W.3d ___. In addition, the credibility of witnesses is an issue for the jury and not the court. Id. The fact-finder is free to believe all or part of the witness's testimony and resolve questions of conflicting testimony and inconsistent evidence. Id. Rather than reweighing the evidence presented at trial, this court determines whether there is substantial evidence to support the lower court's findings. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998).
Appellant was convicted of rape in violation of Arkansas Code Annotated § 5-14-103(a)(1), which states the following:
(a) A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person:
(1) By forcible compulsion;
Ark. Code Ann. § 5-14-103(a)(1) (Supp. 2009). Furthermore, Arkansas Code Annotated § 5-14-101(2) defines "forcible compulsion" as " physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person." (Emphasis added). Ark. Code Ann. § 5-14-101(2) (Supp. 2009).
In Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998), we stated that "physical force" is "any bodily impact, restraint or confinement, or the threat thereof." Id. (citing Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991)). The test used to determine whether there was force is "whether the act is against the will of the party upon whom the act was committed." Freeman, supra, at 133, 959 S.W.2d at 401. In Ellis v. State, 364 Ark. 538, 222 S.W.3d 192 (2006), we noted that this Court "has continually held that a rape victim's testimony alone is sufficient and is substantial evidence to support a rape conviction." Id. "Uncorroborated testimony of a rape victim is sufficient evidence to support a conviction. Inconsistencies in the rape victim's testimony are matters of credibility that are left for the jury to decide. The jury may accept or reject testimony as it sees fit." Ward v. State, 370 Ark. 398, 260 S.W.3d 292 (2007).
With these principles in mind, and viewing the evidence in the light most favorable to the verdict, we conclude that there was sufficient evidence to support Appellant's conviction of rape. Although Appellant offers testimony that conflicts with Miller's testimony and the evidence presented at trial, we need only limit our review to those facts supporting the verdict to conclude that there is sufficient evidence to support the conviction of rape. Miller testified that she was forced to engage in deviate sexual activity with Appellant and, after the attack, she ran from the house where she was eventually found by police. She was also examined by an emergency room physician who indicated that Miller was distraught and agitated and complained of pain during the examination. Although a semen sample collected during the examination did not match the DNA of the Appellant, but, rather that of the fiancé, Miller's testimony need not be corroborated. Furthermore, it is for the jury to decide whether the testimony was credible. Thus, based on the jury's findings, Miller's testimony was credible and there was sufficient evidence to support Appellant's conviction for the charge of rape.
II. Sufficiency of the Evidence-Kidnapping
For his final point on appeal, Appellant challenges the sufficiency of the evidence supporting his conviction of kidnapping. He contends that the State failed to establish that the restraint he used exceeded that force normally incident to the underlying crime of rape. Appellant claims that the restraint used, coupled with Miller's consent to come over to his house, indicates that he does not meet the element of restraint needed for the separate conviction of kidnapping.
Arkansas Code Annotated § 5-11-102 defines when a kidnapping has occurred and states that:
(a) A person commits the offense of kidnapping if, without consent, the person restrains another person so as to interfere substantially with the other person's liberty with the purpose of:
. . . .
(5) Engaging in sexual intercourse, deviate sexual activity, or sexual contact with the other person;
Ark. Code Ann. § 5-11-102(a)(5) (Supp. 2009). In addition, Arkansas Code Annotated § 5-11-101(3)(A) states that "`restraint without consent' includes . . . restraint by physical force, threat, or deception. . . ." Ark. Code Ann. § 5-11-101(3)(A) (Supp. 2009). As a preliminary matter, we have stated that double jeopardy does not attach to the crime of kidnapping and rape as they are two separate offenses. See White v. State, 301 Ark. 74, 781 S.W.2d 478 (1989). Furthermore, a person is subject to prosecution for kidnapping when the restraint used exceeds that normally incident to the crime of rape. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980) (citing the commentary to a previous statute Ark. Stat. Ann. § 41-1702). "It is the quality and nature of the restraint, rather than the duration, that determines whether a kidnapping charge can be sustained." Cook v. State, 284 Ark. 333, 681 S.W.2d 378 (1984).
In Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991), we reversed a conviction for kidnapping where the victim willingly got in the truck with the appellant and traveled with him until he stopped the vehicle, forced her out, and then raped her. In reversing the conviction, we stated that there was not "substantial interference with liberty" to warrant the conviction because the victim's actions were consensual until the appellant pulled a gun and forced her to take off her clothes. Id.
In Thomas v. State, 311 Ark. 609, 846 S.W.2d 168 (1993), we elaborated on the element of "consent" and held that there was sufficient evidence to support the conviction of kidnapping where the victim initially consented to ride with the Appellant in his car. In distinguishing Thomas from the Shaw case, we stated that:
[T]he victim in the present case began to revoke her consent to her rapist's actions as soon as it became apparent he was not driving her to . . . the agreed-upon destination. Thus, from that point . . . appellant restrained the victim. . . . We hold such actions resulted in more restraint of the victim than would be normally incidental to the rape.
Id. The element of consent can be withdrawn prior to the occurrence of the rape, thus creating an additional charge of kidnapping.
We have considered several factors in determining whether a separate charge of kidnapping is supportable by the facts. In Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996), we stated that:
Among the factors that have been considered by courts in determining whether a separate kidnapping conviction is supportable include whether the movement or confinement (1) prevented the victim from summoning assistance; (2) lessened the defendant's risk of detection; or (3) created a significant danger or increased the victim's risk of harm. (Internal citations omitted).
Id. at 534, 932 S.W.2d at 760. (citing Frank J. Wozniak, Annotation: Seizure of Detention for Purpose of Committing Rape, Robbery, or Other Offense as Constituting Separate Crime of Kidnapping, 39 A.L.R. 5th 283, 358 (1996)). In the Lee case, the appellant dragged the victim for a city block to a dark area behind a school where he raped the victim. We were careful to point out that it was not the asportation alone that supported the kidnapping charge. It was that fact coupled with the other factors, 1) such as taking the victim to a dark secluded place to carry out the act more easily, 2) and creating a significant danger and increased risk of harm to the victim, who suffered a bruised face and swollen neck from having been dragged and strangled, that supported the additional conviction of kidnapping.
Based on the case law discussed, we hold that there was sufficient evidence to support Appellant's conviction for kidnapping. The following evidence supports his conviction. On the night of the crime, Miller had voiced her decision that she was leaving, thus expressing her intention and revoking her consent to remain at Appellant's home. Appellant then stood up and slammed the door, telling Miller that she was not going anywhere. He then told her to go to his bedroom. When she refused, he slapped her and told her that he had a .380 pistol and would kill her if she said anything. At this point, Appellant had taken action sufficient to satisfy the elements of the crime of kidnapping. He substantially interfered with her liberty interest by physically threatening her and impeding her egress from the home. In addition, under the factors of the Lee case, he (1) prevented the victim from summoning assistance from Baker, who was passed out in the chair in the room; (2) he lessened his risk of being detected by taking Miller to a separate room where they would not be seen; and (3) he created a significant danger and increased the victim's risk of harm by secreting her away in his bedroom where he was able to inflict physical injury on her and engage in deviate sexual activity at increased risk to Miller. Thus, based on the lack of consent and the factors listed above, there was substantial evidence to sustain the separate conviction of kidnapping.
The record in this case has been reviewed for other reversible error pursuant to Supreme Court Rule 4-3(i), and none has been found.
Affirmed.