Barfield v. State

2019 Ark. App. 501

588 S.W.3d 412

Fredrick Bruce BARFIELD, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-281

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: October 30, 2019

Dusti Standridge, for appellant.

Leslie Rutledge, Att'y Gen., by: Rachel Kemp, Senior Ass't Att'y Gen., for appellee.

PHILLIP T. WHITEAKER, Judge

Appellant Fredrick Bruce Barfield was convicted of second-degree sexual assault by a Garland County jury and was sentenced to ten years' probation and a fine of $3,500 by the circuit court. On appeal, Barfield challenges both the sufficiency of the evidence supporting his conviction and the manner in which he was sentenced. We find no error and affirm.

I. Sufficiency of the Evidence

In his first point on appeal, Barfield argues that the State failed to present sufficient proof that he committed the offense of second-degree sexual assault. Our standard of review for a sufficiency challenge is well settled. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. King v. State , 2018 Ark. App. 572, 564 S.W.3d 563. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Id.

Barfield was charged with second-degree sexual assault over allegations that he engaged in sexual contact with a twelve-year-old girl. A person commits the offense of sexual assault in the second degree if, being eighteen years or older, he engages in sexual contact with another person who is less than fourteen years old and not his spouse. Ark. Code Ann. § 5-14-125(a)(3) (Repl. 2013). It was undisputed at trial that Barfield is over the age of eighteen and that the victim, S.H., was twelve years old at the time of the assault and was not Barfield's spouse.

Barfield's specific challenge to the sufficiency of the evidence at trial and on appeal is that the State failed to prove that he engaged in sexual contact. "Sexual contact" means "any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female." Ark. Code Ann. § 5-14-101(10). More particularly, he argues that the State failed to prove that any action he undertook with S.H. was for the purpose of sexual gratification.

We therefore turn to the proof that the State presented at trial. Barfield was dating Judy Blake, the mother of S.H., and would sometimes spend the night at Blake's apartment. One Friday in November 2014, Barfield spent the night. S.H. slept on the living-room couch that night. The next morning, Barfield came into the living room and began touching her. Initially, he touched S.H.'s breasts over her clothes. When she asked him to stop, he grabbed her by the waist, held her down, and put his hand under her shirt and began touching and squeezing her breast. S.H. eventually slapped him and said she was going to go tell her mother what happened; Barfield told her not to tell anyone.

S.H. did not follow Barfield's admonition to stay quiet. She told her sister and her mother what happened. Blake confronted Barfield by asking, "Did you do it?" Barfield responded that he might have "brushed up against her." Blake confirmed with S.H. the details of what happened, and S.H. told her mother that Barfield "kept his hand there a whole lot longer than just brushing up against her." When Blake confronted Barfield a second time about what S.H. had said, he replied, "Well, yeah, but I was trying to teach her how to say no ‘cause she touched me first." Blake then reported the assault to the Child Advocacy Center.

After the assault was reported, the authorities investigated Barfield. He provided a recorded interview to the Child Advocacy Center,¹ during which he acknowledged that S.H. had accused him of touching her breasts. He initially alleged that S.H. had instigated the contact,² but he eventually admitted grabbing her by the head and "making circle moves" on her breast and nipple. He maintained, however, that he was trying to "freak her out where she'd say no."

Barfield was subsequently interviewed by the Hot Springs Police Department.³ Once again, Barfield admitted that he had touched and rubbed S.H.'s nipple "about close to a minute." He continued to claim, however, that he had only done so to "educate her" about how to say no.

On appeal, Barfield acknowledges that he touched S.H.'s breast, but he contends that this fact alone is not enough to sustain a conviction. He argues that in addition to the physical touching, the State had to prove that he did so for the purpose of sexual gratification. He contends that the State failed to prove that his touching of S.H.'s breast was for such a purpose.

Arkansas Code Annotated section 5-14-101(10) does not expressly define "sexual gratification." Our supreme court, however, has addressed the topic. In McGalliard v. State , 306 Ark. 181, 182–83, 813 S.W.2d 768, 769 (1991), the court explained the meaning of the term in the context of a rape case:

"Sexual" is defined in Webster's Third International Dictionary , unabridged (1961), as "of or relating to the male or female sexes or their distinctive organs or functions" or "of or relating to the sphere of behavior associated with libidinal gratification." "Gratification" is defined as "something that pleases." Id.

When construed in accordance with their reasonable and commonly accepted meaning, and in context with the specific acts described in section 5-14-101(8), the words leave no doubt as to what behavior is prohibited under the statute.

More pointedly, our supreme court has held that it is not necessary for the State to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. Warren v. State , 314 Ark. 192, 196, 862 S.W.2d 222, 225 (1993) ; see also Ross v. State , 2010 Ark. App. 129, at 4, 2010 WL 475363 ("Our case law makes clear that when sexual contact occurs, and there is no legitimate medical reason for it, it can be assumed that such contact was for sexual gratification and the State need not offer direct proof on that element.").

Here, Barfield cites his own statements to investigators that he did not touch S.H. for his own sexual gratification but for her sexual education, and he suggests that the real question in this case is whether his act of touching S.H. was "a poor decision or a crime." The jury, however, was not required to believe Barfield's stated intent. See Brown v. State , 374 Ark. 341, 344, 288 S.W.3d 226, 230 (2008) ("Even though Appellant denied the allegations of sexually assaulting his daughter, the jury is not required to believe his self-serving testimony."). Instead, the jury was free to look at all the evidence, which included testimony that he continued to touch S.H.'s breast after she told him to stop, that he told her not to tell anyone what had happened, and that he initially minimized the act but confessed when confronted by S.H.'s mother. See Sorum v. State , 2017 Ark. App. 384, 526 S.W.3d 50 (holding that the jury was free to reject defendant's argument that he was "just messing around" and could reasonably conclude that defendant's actions were taken in an effort to achieve sexual gratification). Substantial evidence supports Barfield's conviction for second-degree sexual assault, and we therefore affirm on this point.

II. Sentencing

In his second point on appeal, Barfield challenges the circuit court's decision to sentence him to ten years' probation and a $3,500 fine. Barfield was charged with a Class B felony. As a result, he faced a sentencing range from five to twenty years in prison, a fine of up to $15,000, or both. He now appeals his sentence to probation.

A. Sentencing Procedure

To understand Barfield's argument, we will lay out the events that surrounded his sentencing. We begin by noting that Barfield clearly sought probation as an alternative sentence pursuant to Arkansas Code Annotated section 16-97-101(4) (Repl. 2016). While the jury was deliberating Barfield's guilt or innocence, the parties discussed sentencing instructions with the court. Barfield asked the court "for the alternative sentence of probation" and requested that the jury be provided a verdict form for that as well. The court agreed.

After the jury returned with its guilty verdict, the trial proceeded to the sentencing phase, during which Barfield testified on his own behalf and personally asked the jury for probation. In his closing argument, his counsel asked the jury to impose probation. Barfield does not dispute that he sought probation as an alternative sentence, but he nonetheless argues that the court erred in giving him probation. We find no merit to his argument.

We find no error in the court's sentencing instructions. The court instructed the jury that second-degree sexual assault is punishable by imprisonment in the Arkansas Department of Correction for not less than five years and not more than twenty years, or by a fine not to exceed $15,000, or by both imprisonment and a fine. The court instructed the jury to complete the appropriate verdict form, AMI Crim. 2d 9303-VF, which reflects those sentencing options. Then, at Barfield's request, the court instructed the jury as follows:

[Mr.] Barfield may also contend that he should receive an alternative sentence of probation. You may recommend that he receive [an] alternative sentence of probation, but you are advised that your recommendation will not be binding on the court.

If you recommend an alternative sentence, you shall indicate on the verdict form which is at the front of

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