Caple v. State

2020 Ark. 340

609 S.W.3d 630

Donald CAPLE, Appellant

v.STATE of Arkansas, Appellee

No. CR-20-294

Supreme Court of Arkansas.

Opinion Delivered: October 22, 2020

James Law Firm, by: Nickolas W. Dunn and William O. "Bill" James, Jr., Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Christopher R. Warthen, Ass't Att'y Gen., for appellee.

KAREN R. BAKER, Associate Justice

On December 11, 2019, a Pulaski County Circuit Court jury convicted appellant Donald Caple of rape and second-degree sexual assault; he was sentenced to life imprisonment and twenty years’ imprisonment, respectively, and ordered to pay a $15,000 fine. From his conviction and sentence, Caple presents three issues on appeal: (1) there was insufficient evidence for Caple's rape conviction; (2) the circuit court abused its discretion by not instructing the jury on the offense of attempted rape; and (3) the circuit court abused its discretion by allowing a witness to testify at sentencing about child-abuse statistics. We have jurisdiction over this case pursuant to Arkansas Supreme Court Rule 1-2(a)(2). We affirm.

On May 15, 2018, Caple was charged with one count of rape and one count of second-degree sexual assault of his granddaughter, L.H., beginning when she was four years old until she was eleven years old.

At trial, the State called the following witnesses. Rhonda McBain, Caple's daughter, testified that L.H. is her daughter.¹ McBain testified that on February 28, 2018, she received a call from L.H.’s school and was told that she needed to come to the school immediately to discuss information L.H. had disclosed to the counselor that could not be shared over the phone. McBain testified that she and her husband went to the school immediately, and the counselor explained that L.H. had disclosed that Caple had been sexually assaulting her. At trial, McBain testified that prior to marrying her husband, she was a single parent, having been divorced since 2008, with two young children and a full-time job. McBain testified that her parents moved back to Arkansas from Saudi Arabia in 2010 when L.H. was four, and they began to babysit her children at that time. She testified that Caple often babysat her children, L.H. and her brother J.H., throughout the year but especially during the summer months because she worked full time and could not afford child-care. McBain testified that Caple babysat in excess of one hundred days per year. McBain further testified that Caple, not McBain's mother, cared for her children as her mother was not "very friendly with kids ... and [Caple] was much more hands-on taking the kids out to do activities ... so he was much more the babysitter than she was." McBain testified that as L.H. got older, she noticed that L.H. was less interested in going over to Caple's home but "she didn't know why. I know with her schoolwork when she started sixth grade, I noticed her grades started dropping and I talked to the school counselor about that." McBain further testified that she also noticed that Caple was a lot closer to L.H. than to J.H. and favored L.H. L.H. testified that Caple babysat L.H. and her brother often, beginning in 2010. L.H. testified that Caple began sexually abusing her at that same time, when she was four years old. She testified that also when she was four years old, she heard the word sex at school and asked Caple what the word meant. L.H. testified that Caple explained to her the meaning of the word and showed her pornography on her grandmother's laptop computer. She testified that he showed her pornography multiple times, and while they watched, the two were naked and Caple would touch her in her private areas. L.H. testified that Caple used his hands, mouth, and penis to touch her. L.H. testified that Caple touched her many times on her inner and outer folds and her "hole area." L.H. testified that Caple would use his hand and rub her vagina. She further testified that Caple used his mouth and put his tongue in her "hole area." L.H. testified that it hurt when Caple touched her and he touched her "many, many times, about every time he babysat." L.H. testified that when she was in sixth grade, Caple lubricated his penis with Vaseline and put his penis in her vagina; she asked him to stop, but he continued and put a little bit of his penis in her vagina and then stopped. L.H. testified that white liquid came out of Caple's penis, and he put the liquid in a small towel. L.H. further testified that Caple told her she could not tell anyone or he would go to jail. L.H. testified that she saw a YouTube post about a celebrity sharing a personal story, and that gave her the courage to tell her school counselor about the abuse.

Dr. Karen Farst, a pediatrician at Arkansas Children's Hospital, testified that she specializes in child-abuse cases and that she conducted an examination of L.H. Dr. Farst testified that in her examination, she did not find any physical findings of sexual abuse. Dr. Farst testified that it is common to not observe physical findings in sexual-abuse cases because the skin in the genital area heals quickly and also sexual contact may not have caused a physical injury. Dr. Farst used a diagram and testified to the anatomy of the female genital area.

Detective Eric Barnes of the Little Rock Police Department testified that he was assigned to L.H.’s case and observed L.H.’s statement as it was provided to Lisette Yang with the Children's Protection Center at Arkansas Children's Hospital. Detective Barnes further testified that on March 15, 2018, he interviewed Caple. In the interview, Caple admitted that he began touching L.H. when she was four years old after she walked in on Caple masturbating while he was watching pornography and began asking Caple what he was doing. Caple admitted touching L.H. and her vagina with his hands and mouth but denied inserting his penis into L.H.’s vagina. Caple stated that while naked, the two watched pornography together and he would touch L.H. Caple testified to touching L.H. multiple times over a number of years.

Caple testified in his own defense. Caple stated that he agreed with L.H.’s testimony; however, he testified that he did not penetrate her mouth or vagina with his penis. Caple testified that otherwise, L.H.’s testimony was accurate.

Based on the facts above, Caple was convicted of rape and second-degree sexual assault and sentenced as described above. This appeal followed.

I. Points on Appeal

A. Sufficiency of the Evidence

For his first point on appeal, Caple contends that the circuit court erred in denying his motion for directed verdict for Caple's rape conviction. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence.² Whitt v. State , 365 Ark. 580, 232 S.W.3d 459 (2006). When reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Gillard v. State , 366 Ark. 217, 234 S.W.3d 310 (2006). We will affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence 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. Ricks v. State , 316 Ark. 601, 873 S.W.2d 808 (1994). Further, 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. Id. Whether the evidence excludes every other reasonable hypothesis is left to the jury to decide. Id. Further, the credibility of witnesses is an issue for the jury and not the court. Id. 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. Id. Additionally, "in rape cases, we have held that there is sufficient evidence to support a conviction if the victim gives ‘a full and detailed accounting of the defendant's actions.’ White v. State , 367 Ark. 595, 599, 242 S.W.3d 240, 249 (2006). 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 resolve. The jury may accept or reject testimony as it sees fit." Ward v. State , 370 Ark. 398, 400, 260 S.W.3d 292, 294–95 (2007) (internal citations omitted). Finally, "this court has observed that the State is not required 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. Rounsaville v. State , 374 Ark. 356, 360, 288 S.W.3d 213, 216 (2008)." State v. Coble , 2016 Ark. 114, 4–5, 487 S.W.3d 370, 372–73.

Caple was convicted of one count of rape under Ark. Code Ann. § 5-14-103, which provides in pertinent part:

(a) A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person:

...

(3)(A) Who is less than fourteen (14) years of age.

Further, Ark. Code Ann. § 5-14-101 provides:

(1) "Deviate sexual activity" means any act of sexual gratification involving:

(A) The penetration, however slight, of the anus or mouth of a person by the penis of another person; or

(B) The penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person[.]

With these standards in mind, we turn to Caple's challenge to the sufficiency of the evidence supporting his rape conviction and sentence. Caple contends that the State failed to prove he committed rape because the State failed to prove that sexual intercourse occurred; nor did the State prove that deviate sexual activity occurred. Specifically, Caple contends that the evidence is insufficient to support a finding that Caple penetrated L.H.’s...