Dominguez v. State

2020 Ark. 286

ORLANDO DOMINGUEZ APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-19-854

SUPREME COURT OF ARKANSAS

September 24, 2020

APPEAL FROM THE HOWARD COUNTY CIRCUIT COURT

[NO. 31CR-19-23]

HONORABLE CHARLES A YEARGAN, JUDGE

AFFIRMED.

COURTNEY RAE HUDSON, Associate Justice

Appellant, Orlando Dominguez, appeals his conviction of three counts of rape in the Howard County Circuit Court. For reversal, Dominguez argues (1) that the circuit court erred by denying his motion for a directed verdict, and (2) that the trial was "fatally infected" when the circuit court allowed the prosecution's lead witness to remain in the courtroom during the testimony of other witnesses and during the State's case concerning charges in which she was not a victim. Because Dominguez was sentenced to life imprisonment, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2019). We affirm.

On July 9, 2019, the State charged Dominguez by amended felony information with three counts of rape pursuant to Arkansas Code Annotated § 5-14-103(a)(3)(A), (4)(A)(i), and (c)(1) (Supp. 2019). The rapes were alleged to have occurred at various times before October 31, 2014, and between December 20, 2018, and January 20, 2019. The victims were Dominguez's three daughters, J.D., V.D., and D.M. The case proceeded to trial on July 29, 2019. At the time of the trial, J.D. was fourteen years old, V.D. was twelve years old, and D.M. was eighteen years old. After the jury was seated, Dominguez sought to exclude the victims from the courtroom during the trial. Dominguez argued that his defense was that the case was based on anecdotal evidence and that the victims' stories were inconsistent. The court stated that it would allow the victims to decide whether to remain in the courtroom after they testified. Shortly thereafter, the court and the parties revisited the issue with respect to D.M., who wanted to remain in the courtroom for the entire trial. Dominguez's attorney stated that he thought it would be unfair for D.M. to hear all the testimony before she testified and requested that if she remained, that she be required to testify first. The court ruled that D.M. had the right as a victim to be present and did not require D.M. to be the first witness. Although J.D. and V.D. also wanted to be present for the trial, the prosecutor asked that they stay out until after they testified.

At trial, J.D. testified first. She said that early one morning, she went to Dominguez's room to look at his phone, and he asked her to lay beside him in his bed. J.D. did so and fell asleep. She awoke when Dominguez got on top of her and began raping her. J.D. testified that his "wiener" was in her "front private area," and that when she gotup and went to the bathroom, her private area hurt. J.D. testified that she awoke about a month or two later to see Dominguez leaving the room and that her back private area was wet, and her bedclothes were not on correctly. On a third occasion, J.D. was asleep on a couch when she awoke to find Dominguez naked beside her with his private part inside her "back front private area." J.D. testified that her back private area was wet. J.D. testified that after the third incident, she ran to talk to D.M., who was with Melissa Morris at the time. Morris is D.M.'s mother, but is not the mother of J.D. or V.D. J.D. said that Morris did not know what had happened because they concealed the truth by telling Morris that she had stepped on a spider. She further testified that D.M. went to Dominguez's room and hit him and confronted him about abusing his daughters. J.D. heard her yelling but couldn't tell exactly what she was saying. According to J.D., she was younger than fourteen years of age on all three occasions and has not been in the home with her father since she turned fourteen. J.D. also admitted that in January 2019, she talked to law enforcement officials but did not mention the abuse because she was afraid that she would be separated from her siblings. She said that she came forward in May when she found out that Dominguez had raped V.D.

V.D. was the second witness and testified that for a time she shared a room with her two sisters. V.D. said that she once saw Dominguez naked and moving "up and down" when he was on top of D.M. She also testified that she once went into Dominguez's room to sleep and when she got into the room, he pulled down her pajama pants and put his front private part into her front private part. V.D. said that her private area felt wet after hefinished. According to V.D. this happened in late December or January of the year of the trial. On cross-examination, V.D. testified that she had accused her half-brother Eric of rape in January 2018 and told authorities during that investigation that Dominguez had not done anything to her.

Morris testified next. Morris did not live in the home but was staying with D.M. in her room in January 2019 when J.D. came into D.M.'s room crying. D.M. told her that J.D. was upset because she had been bitten by a spider. In reality, J.D. was telling D.M. what Dominguez had done. Morris said that she did not really talk to J.D. at that time. When D.M. went to confront Dominguez, Morris only heard her ask him what was going on and why was he "doing this." Morris also testified that she was in a vehicle with D.M. in January 2019 when Dominguez called, and she heard the conversation over the Bluetooth system. During that conversation, Morris recalled Dominguez saying that he wanted to "fuck [D.M.] all day and night." Morris admitted on cross-examination that a court had deemed her to be an unfit parent sometime before 2008 because she had left her children unattended.

D.M. testified next and said that Dominguez abused her physically because he was jealous of her boyfriend and did not want her to "cheat" on him. D.M. testified that Dominguez began sexually abusing her when she was eleven or twelve years old. She described an incident when she was playing games on his phone in his room and he got on top of her from behind. He pulled down her pajama pants and put his "male part" into her "bottom." According to D.M., Dominguez had sex with her so frequently that it "grewnormal." D.M. said that for the first two years, Dominguez had sex with her back side, but more recently it was in her front area. D.M. testified that Dominguez told her that he loved her as a daughter and a wife. D.M. went to the police after the January 2019 phone call. D.M. admitted on cross-examination that she told authorities in January 2018 that Dominguez had done nothing to her. This was during an investigation that led to her brother Eric being imprisoned for the rape of V.D. The fifth and final witness to testify was Kyleigh Dotson, a licensed professional counselor and forensic interviewer at the Children's Advocacy Center in Texarkana. Dotson testified as to her involvement in the case and the steps that child-abuse victims generally go through when disclosing the abuse.

At the close of the State's case, Dominguez moved for a directed verdict. Dominguez argued that there were no physical findings of rape, that the victims' "stories have changed dramatically, and [that] this is all anecdotal evidence." The circuit court denied the motion. Dominguez also renewed his objection regarding the victims being present during the trial. Dominguez rested without presenting evidence and renewed his directed-verdict motion. The court denied the renewed motion. The case was submitted to the jury, which found Dominguez guilty on all three counts and sentenced him to life imprisonment on each count. The information is not clear as to which count related to which victim, but the verdict forms designated D.M. as the victim for count one, J.D. as the victim for count two, and V.D. as the victim for count three. Dominguez filed a timely appeal.

Dominguez first argues that the circuit court erred when it did not grant his motion for a directed verdict because the State failed to present sufficient evidence that hecommitted all three offenses contained in the information. Dominguez argues that the State's entire case consisted of five witnesses, photos of cell phone logs, and a jail recording wherein he asked D.M. to tell his attorney that no sexual activity occurred at least until she had turned eighteen. Dominguez essentially challenges the victims' credibility.

An appeal from the denial of a motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Taffner v. State, 2018 Ark. 99, 541 S.W.3d 430. In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence. Howard v. State, 2016 Ark. 434, 506 S.W.3d 843. 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. 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. Fletcher v. State, 2018 Ark. 261, 555 S.W.3d 858. 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. Mabry v. State, 2020 Ark. 72, 594 S.W.3d 39. This is equally true when the victim is a child. White v. State, 367 Ark. 595, 242 S.W.3d 240 (2006). Scientific or medical evidence is not required to prove rape. Kelley v. State, 375 Ark. 483, 292 S.W.3d 297 (2009). Additionally, inconsistencies in the testimony of a rape victim are for the jury to resolve. Gillard v. State, 366 Ark. 217, 234 S.W.3d 310 (2006).

We look next to the elements of rape. A person commits the offense of rape if he engages in sexual intercourse or deviate sexual activity with another person and the person is less than fourteen years of age. Ark. Code Ann. §...