McLemore v. State

2022 Ark. App. 512

657 S.W.3d 190

Shawn MCLEMORE, Appellant

v.STATE of Arkansas, Appellee

No. CR-22-215

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered December 14, 2022

James Law Firm, by: William O. "Bill" James, Jr., and Jacqueline Mangandi, for appellant.

Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

STEPHANIE POTTER BARRETT, Judge

Shawn McLemore was convicted by a Grant County Circuit Court jury of one count of rape and one count of sexual assault in the second degree. The victim was his nine-year-old stepdaughter. He was sentenced to twenty-five years’ imprisonment for the rape conviction and twenty years’ imprisonment for the second-degree sexual-assault conviction, with the sentences ordered to be served concurrently. On appeal, McLemore argues (1) that the circuit court abused its discretion by allowing hearsay statements into evidence during Officer Everett Wilkerson's testimony, and (2) there was insufficient evidence to find him guilty of rape and sexual assault in the second degree. We affirm the convictions.

Although it is McLemore's second argument on appeal, we must address the sufficiency of the evidence first for purposes of double jeopardy. Lewondowski v. State , 2022 Ark. 46, 639 S.W.3d 850. A motion for directed verdict at a jury trial is considered a challenge to the sufficiency of the evidence. Marbley v. State , 2019 Ark. App. 583, 590 S.W.3d 793. In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Barfield v. State , 2019 Ark. App. 501, 588 S.W.3d 412. We will affirm a circuit court's denial of the directed-verdict motion if there is substantial evidence, either direct or circumstantial, to support the verdict. Marbley , supra. 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 and conjecture. Barfield , supra.

"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) (Supp. 2021). 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; or [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)(A) & (B) (Supp. 2021).

"A person commits sexual assault in the second degree if the person, being eighteen years of age or older, engages in sexual contact with another person who is less than fourteen years of age and not the person's spouse." Ark. Code Ann. § 5-14-125(a)(3) (Supp. 2021). "Sexual contact" is defined as "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(11).

On October 26, 2020, Julie McLemore could not find her husband or her nine-year-old daughter, Child 1, inside their home, so she began looking for them outside. As she opened the door of a backyard shed where McLemore and Child 1 frequently worked on projects, she found McLemore standing in the shed, naked from the waist down, with Child 1 kneeling in front of him. McLemore responded by pulling up his pants and walking into the house, where Julie confronted him and told him to leave. Julie called 911, and McLemore was arrested.

At the close of the State's case, McLemore's counsel made the following motion for directed verdict:

I'm not sure if the evidence is clear about whether—whether the child—as far as the touching goes, that's—that's—it would be—the testimony was very vague. I'm not sure that—that it meets the burden of proof beyond a reasonable, just touched—it's—you know, not a lot of detail at all, nothing about how far Mr. McLemore's hand might have—or fingers or whatever would've gone into the private area. So based upon the—the vagueness of the testimony in that regard and I think it is a little hard to believe that—that this was happening just any time of the day or night in a household without anyone else seeing it. I think that calls into question more—so based on that, I'll make a motion for directed verdict.

The circuit court denied the motion. Counsel renewed the motion at the close of all the evidence on the same grounds—that the testimony was "very vague"—and the circuit court again denied the motion.

McLemore now argues on appeal that there is insufficient evidence to support his convictions because Julie McLemore did not testify that she actually saw McLemore and Child 1 touching each other's private areas, and there was no testimony that Child 1 touched his private area. This argument is not preserved for appellate review.

In a jury trial, a motion for directed verdict must be made at the close of the State's evidence and again at the close of all the evidence, and it must state the specific grounds for the motion and why the evidence is deficient; failure to challenge the sufficiency of the evidence in this manner constitutes a waiver of any question regarding the sufficiency of the evidence. Ark. R. Crim. P. 33.1(a) & (c) (2021). Here, McLemore's counsel argued that the testimony regarding the touching was "very vague" and that there was "not a lot of detail at all." This motion failed to specify which allegation the motion was addressing or if it was addressing both allegations, and it failed to apprise the circuit court which elements of the charges the State had failed to prove. Because McLemore's motions for directed verdict fall short of the requirements set forth in Rule 33.1 of the Arkansas Rules of Criminal Procedure, his sufficiency arguments are waived on appeal.

Nevertheless, had McLemore's sufficiency arguments been preserved, his convictions would be affirmed. He argues that Julie McLemore did not see him and Child 1 touching each other; he further asserts that while Child 1 testified that he touched her "upper chest" (the terminology she used for her breasts) and her "private area" (the terminology she used for either sex's genital area), she did not testify that she had touched his private area.

Child 1 testified that McLemore touched her upper chest with his hand, and he touched her private area with his hand and his private area on both the inside and outside. She said that it had happened more than ten times over the past year, sometimes in McLemore's truck and sometimes in the shed. She had not told anyone because McLemore told her that he would be in big trouble, and she was afraid that he would hurt her...