Hartley v. State

2022 Ark. 197

654 S.W.3d 802

Thomas HARTLEY, Appellant

v.STATE of Arkansas, Appellee

No. CR-22-172

Supreme Court of Arkansas.

Opinion Delivered: November 10, 2022

Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.

Leslie Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't Att'y Gen., for appellee.

JOHN DAN KEMP, Chief Justice

Appellant Thomas Hartley appeals a Benton County Circuit Court order convicting him of two counts of rape, sexual assault in the second degree, and sexually grooming a child. He was sentenced to concurrent terms of life, life, twenty years, and six years, respectively. For reversal, Hartley argues that (1) substantial evidence does not support his convictions for rape and sexually grooming a child; (2) the circuit court abused its discretion by excluding evidence that the victim, a minor child ("MC"), had previously been exposed to pornography; and (3) the circuit court erred by assessing a cybercrime fee in this case. We affirm in part and reverse and remand in part.

I. Facts

MC, who was eleven years old at the time of trial, testified that she knew Hartley because he had been her mother's boyfriend. MC explained that, "[s]ometimes [Hartley] would touch [her] on [her] breasts and sometimes he would touch [her] down in [her] vagina." She recalled that sometimes he would make her take off her clothes and sometimes they would be on. When he "tried to touch [her] part – [her] private part," they were in her mom's bedroom. MC indicated that her "private part" is her vagina. She testified that "[s]ometimes he would, um, make me sit on the bed and open my legs a lot[,] ... [a]nd he would sometimes rub his fingers on my private and try to put them inside of me." When asked if Hartley would try to touch her inside her body, MC replied yes. MC further testified that "he would make me spread my legs and he would take two fingers and try to put them in my vagina." She stated that she felt pain, and she "tried to move away when he tried to put it in there farther."

When the deputy prosecutor asked MC if Hartley had ever used anything else, MC responded that "[s]ometimes he tried to use his penis[,]" and "[h]e used a little pink vibrator toy." The following colloquy then occurred:

DEPUTY PROSECUTOR : Okay. And where -- how would he use that toy?

MC: He would make me hold it on my vagina.

DEPUTY PROSECUTOR : Would he touch that toy inside your body, outside your body, or something else?

MC: Just there I can remember.

DEPUTY PROSECUTOR : Did that toy do anything?

MC: It would just start vibrating and it hurt when he put it on me but that's it.

MC also testified that Hartley would try to put his penis inside her, but "he couldn't go inside of me. I wasn't ready."

MC testified that when Hartley first started touching her, he said not to tell anyone. He did not threaten anybody, but just told her "not to tell anybody." MC also recalled that Hartley would sometimes put "porn movies on the TV" while this was going on. MC testified that the people in those movies were having sex. When asked how many times she saw those kinds of movies, she responded, "Pretty much every time he would try and touch me."

Kacie Parrish, a sexual-assault nurse examiner ("SANE") coordinator, examined MC on July 11, 2019. Parrish testified that, on the medical report she completed for MC, she had circled "pain," and Parrish noted that MC had reported experiencing genital pain "when she was touched," as well as "burning." Parrish had also written "[a]buse suspected" in the exam-summary portion of the report. Additionally, Parrish testified that a penetration of the labia majora, which is the "external part of the fold of the female genitalia," would "count as penetration because that is penetrating into the genital." She agreed that it is possible to penetrate the labia majora without penetrating other parts of the vagina.

On this evidence, the jury convicted Hartley of two counts of rape, sexual assault in the second degree, and sexually grooming a child. He was sentenced to concurrent terms of life for each count of rape, twenty years’ imprisonment for second-degree sexual assault, and six years’ imprisonment for sexually grooming a child. Hartley filed a timely notice of appeal, and this appeal followed.

II. Points on Appeal

A. Sufficiency of the Evidence

Hartley first challenges the sufficiency of the evidence supporting his convictions for two counts of rape and one count of sexually grooming a child.¹ He argues that the State failed to prove the penetration element for each rape count and failed to prove the intent element of sexually grooming a child.

We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. McClendon v. State , 2019 Ark. 88, at 3, 570 S.W.3d 450, 452. In reviewing this challenge, we view the evidence in a light most favorable to the State and consider only the evidence that supports the conviction. Id. , 570 S.W.3d at 452. We will affirm the verdict if substantial evidence supports it. Id. , 570 S.W.3d at 452. Substantial evidence is evidence 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. , 570 S.W.3d at 452. It is the function of the jury, and not the reviewing court, to evaluate the credibility of witnesses and to resolve any inconsistencies in the evidence. Breeden v. State , 2013 Ark. 145, at 5, 427 S.W.3d 5, 8–9.

1. Two counts of rape

Hartley committed rape "if he engage[d] in sexual intercourse or deviate sexual activity with another person ... [w]ho was less than fourteen (14) years of age." Ark. Code Ann. § 5-14-103(a)(3)(A) (Repl. 2013). " ‘Sexual intercourse’ means penetration, however slight, of the labia majora by a penis[.]" Ark. Code Ann. § 5-14-101(11) (Repl. 2013). " ‘Deviate sexual activity’ means any act of sexual gratification involving ... [t]he penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person." Ark. Code Ann. § 5-14-101(1)(B) (Repl. 2013).

A rape victim's uncorroborated testimony describing penetration may constitute substantial evidence to sustain a conviction of rape, even when the victim is a child. Breeden , 2013 Ark. 145, at 4, 427 S.W.3d at 8. The rape victim's testimony need not be corroborated, and scientific evidence is not required. Id. at 4–5, 427 S.W.3d at 8. Additionally, this court has stated that penetration can be shown by circumstantial evidence, and if that evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that is sufficient. Fernandez v. State , 2010 Ark. 148, at 4, 362 S.W.3d 905, 907.

Hartley argues that the State failed to prove the penetration element as to each count of rape. The State asserted at trial that one count of rape was based on digital penetration and one count was based on Hartley's penetration of MC's vagina with an object. On the first count of rape, MC testified that Hartley "would make me spread my legs and he would take two fingers and try to put them in my vagina." She felt pain, so she "tried to move away when he tried to put it in there farther." The foregoing testimony by MC constitutes substantial evidence of penetration on the first rape count. It is sufficient, absent any corroboration, to sustain Hartley's rape conviction. Breeden , 2013 Ark. 145, at 4–5, 427 S.W.3d at 8. We therefore hold that substantial evidence supports the first rape count.

On the second rape count, MC testified that Hartley would use a vibrator toy and "would make [her] hold it on [her] vagina." She explained that the toy "would just start vibrating and it hurt when he put it on [her.]" Further, the SANE coordinator described the labia majora as the outermost portion and "external part of the fold of the female vagina." Her testimony, combined with MC's description of the object's location on her vagina, the fact that it was vibrating, and the pain that resulted gives rise to more than just suspicion and leaves little room for doubt that Hartley penetrated MC's labia majora with the object, even if only slightly. See, e.g. , Fernandez , 2010 Ark. 148, at 8, 362 S.W.3d at 909. Accordingly, we hold that substantial evidence supports Hartley's conviction on the second count of rape, and we affirm it.

2. Sexually grooming a child

Hartley also argues that the State presented insufficient evidence of sexually grooming a child because there was no proof that he showed pornography to MC with the purpose to engage in sexual conduct with her. Instead, he claims that "the State's evidence showed that Hartley purportedly showed pornography to MC after having already engaged in sexual behavior with her."

Hartley committed sexually grooming a child if he "knowingly disseminate[d] to a child thirteen (13) years of age or younger with or without consideration a visual or print medium depicting sexually explicit conduct with the purpose to entice, induce, or groom the child ... to engage in the following with a person: (1) Sexual intercourse; (2) Sexually explicit conduct; or (3) Deviate sexual activity." Ark. Code Ann. § 5-27-307(b)(1)–(3) (Repl. 2013). A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Wright v. State , 2022 Ark. 103, at 9, 644 S.W.3d 236, 241. Because intent cannot be proved by direct evidence, jurors can draw upon their common knowledge and experience to infer it from the circumstances. Id. , 644 S.W.3d at 241.

Here, the State presented evidence, through MC's testimony, that Hartley put pornographic movies on the television "[p]retty much every time he would try and touch [her]." MC's testimony was clear that pornographic movies played while the acts were occurring. Given this testimony, we conclude that the jury easily...