Break v. State

2022 Ark. 219

655 S.W.3d 303

Terry E. BREAK, Appellant

v.STATE of Arkansas, Appellee

No. CR-22-151

Supreme Court of Arkansas.

Opinion Delivered December 8, 2022

Tim Cullen, for appellant.

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen.; and by David L. Eanes, Jr., Ass't Att'y Gen., for appellee.

COURTNEY RAE HUDSON, Associate Justice

Appellant, Terry Break, appeals his convictions in the Boone County Circuit Court of multiple counts of rape, second-degree sexual assault, sexual indecency with a child, engaging a child in sexually explicit conduct for use in visual or print medium, and distributing, possessing, or viewing matters depicting sexually explicit conduct involving a child. For reversal, Break argues that (1) substantial evidence does not support any of his convictions, (2) the State made an improper closing argument, and (3) his sentence was excessive. We affirm.

On March 29, 2019, Break was initially charged with five crimes relating to sexual contact with a minor. The criminal information was amended several times, and Break eventually faced seventy-four separate counts. The State charged him with seven counts of rape, three counts of second-degree sexual assault, and three counts of sexual indecency with a child. Two counts were for intimidating a witness. The remaining counts related to Break's possession of photographs of minors. The crimes were alleged to have occurred between 2005 and 2019.

The jury trial was held November 8–12, 2021. According to the evidence presented at trial, Chris Jamison served as an Omaha police officer and also a school resource officer for the Omaha school district when a student told him that he had been touched inappropriately many times. Jamison's report revealed MC 1 as the student, which led to Break's eventual arrest and prosecution.¹

The evidence at trial included testimony from three victims. MC 1 testified that he was thirteen years old. He said that from the time he was about four years old, his family lived next door to Break and that he went to Break's house two or three times a week. MC 1 said that he played video games there and slept with Break in his bed. MC 1 recalled Break watching him bathe in the bathtub and taking showers naked with him. He also said that Break took photos of him naked in the house. According to MC 1, "[a]t least once every time [he] went over there," Break put his penis into his mouth. MC 1 said Break would also take MC 1's hand and put it on Break's penis while he slowly fell asleep.

MC 2 was fifteen years old at the time of the trial. He said that Break performed anal sex on him more than once and forced him to perform anal sex on Break. MC 2 also said that Break performed oral sex on him. Additionally, MC 2 said that Break washed him in the bathtub, including his back and buttocks. MC 2 further testified that Break took photographs of him and MC 1 naked together.

MC 3 was fifteen years old at the time of the trial. He testified that he spent numerous nights at Break's house and slept with Break most of the time. He said that Break sometimes slept naked. MC 3 recalled that Break would wash his hair and his body, including his back, buttocks, and between his legs. Break would be naked when he bathed MC 3 and sometimes showered with him. MC 3 said that on more than one occasion, Break placed MC 3's hand on Break's penis and went to sleep. MC 3 said that Break once put his penis into his mouth. MC 3 said that Break took naked pictures of him.

Eric Lord, a digital-evidence analyst for the Arkansas Crime Laboratory during the investigation, testified about internet websites that had been accessed from Break's computer. He also testified about finding photographs that had been saved on Break's computer.

The circuit court granted Break's motion for directed verdict as to one rape count and the two counts of intimidating a witness. The circuit court also granted directed verdicts as to thirty charges involving photographs. The remaining counts were submitted to the jury. The jury convicted Break of six counts of rape, three counts of second-degree sexual assault, three counts of sexual indecency with a child, twelve counts of engaging a child in sexually explicit conduct for use in visual or print medium, and seventeen counts of distributing, possessing, or viewing matters depicting sexually explicit conduct involving a child. The circuit court sentenced Break to life imprisonment on each of the six rape counts, plus an additional 488 years for the other convictions. In addition, the circuit court assessed $425,000 in fines plus court costs. Break filed a timely appeal.

I. Sufficiency of the Evidence

On appeal, Break first argues that substantial evidence does not support any of his forty-one convictions. In reviewing a sufficiency challenge, we view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict. McCray v. State , 2020 Ark. 172, 598 S.W.3d 509. This consideration encompasses all the evidence presented at trial, including that which may have been inadmissible. Watson v. State , 2014 Ark. 203, 444 S.W.3d 835. We will affirm a judgment of conviction if substantial evidence exists to support it. Armstrong v. State , 2020 Ark. 309, 607 S.W.3d 491. Substantial evidence is evidence that 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. Direct evidence is evidence that proves a fact without resort to inference when, for example, it is proved by witnesses who testify to what they saw, heard, or experienced. Chatmon v. State , 2015 Ark. 28, 467 S.W.3d 731. Circumstantial evidence is evidence of circumstances from which a fact may be inferred. Id. Circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Armstrong , 2020 Ark. 309, 607 S.W.3d 491. Whether the evidence excludes every other hypothesis is left to the jury to decide. Id. Further, the credibility of witnesses is an issue for the jury, not the court; the trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Howard v. State , 2016 Ark. 434, 506 S.W.3d 843.

To preserve a challenge to the sufficiency of the evidence, a defendant must move for a directed verdict at the close of the State's case and at the close of all the evidence and must state the specific grounds for the motion. Riley v. State , 2020 Ark. 99, 2020 WL 1059561 ; Ark. R. Crim. P. 33.1 (2021). We have held that Rule 33.1 is to be strictly construed and that the failure to adhere to the rule constitutes a waiver as to any question pertaining to the sufficiency of the evidence that supports the verdict. Riley , 2020 Ark. 99, 2020 WL 1059561. With these authorities in mind, we turn to Break's specific convictions.

We first consider Break's challenge to his convictions for six counts of rape. A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Ark. Code Ann. § 5-14-103(a)(3)(A) (Repl. 2006).² "Deviate sexual activity" means any "act of sexual gratification involving ... [t]he penetration, however slight, of the anus or mouth of a person by the penis of another person[.]" Ark. Code Ann. § 5-14-101(1)(A) (Repl. 2006). This court has consistently held that the testimony of a rape victim, standing alone, is sufficient to support a conviction if the testimony satisfies the statutory elements of rape. Dominguez v. State , 2020 Ark. 286, at 6, 2020 WL 5701898. This is equally true when the victim is a child. Id.

In reviewing Break's appeal, we note that "this court will not address arguments that are raised for the first time on appeal." Rogers v. State , 2018 Ark. 309, at 10, 558 S.W.3d 833, 840 (quoting Marshall v. State , 2017 Ark. 347, at 5, 532 S.W.3d 563, 566 ). At trial, Break moved for a directed verdict as to each rape count. With respect to the three counts involving MC 2, he argued that the State failed to make a prima facie case that oral or anal sex had occurred or that MC 2 was under the age of fourteen at the time. As to the rapes of MC 1 and MC 3, Break argued only that the State failed to make a prima facie case. On appeal, Break now argues for the first time that the record contains no photographic, DNA, or physical evidence to support any of the claimed sexual contact. He further argues that there is no suggestion of a "completed sex act" and that the lack of corroborating evidence and the long delay in reporting the acts renders the victims’ testimony inherently suspect. Break therefore claims that the evidence does not rise above suspicion and conjecture.

Break has changed his sufficiency challenge on appeal. His directed-verdict motion did not include an argument relating to the lack of corroborating evidence, and the circuit court neither considered nor ruled on that issue. Therefore, Break's argument is not preserved for appeal, and we affirm his six rape convictions.

We look next to Break's three convictions for second-degree sexual assault. A person commits sexual assault in the second degree if the person, "[b]eing eighteen (18) years of age or older, engages in sexual contact with another person who is ... (A) [l]ess than fourteen (14) years of age; and (B) [n]ot the person's spouse." Ark. Code Ann. § 5-14-125(a)(3) (Repl. 2006). As relevant here, "sexual contact" means "[a]n act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person[.]" Ark. Code Ann. § 5-14-101(8)(A) (Repl. 2006) (current version at Ark. Code Ann. § 5-14-101(12)(A) (Supp. 2021)). This court has observed that the State is not required to provide direct proof that an act...