Sawyers v. State

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2024 Ark.App. 590

DAVID SAWYERS APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-24-88

Court of Appeals of Arkansas, Division III

December 4, 2024

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CR-22-824] HONORABLE KEN CASADY, JUDGE

Digby Law Firm, by: Bobby R. Digby II and Mathew R. Ingle, for appellant.

Tim Griffin, Att'y Gen., by: Joseph Karl Luebke, Ass't Att'y Gen., for appellee.

N. MARK KLAPPENBACH, JUDGE

David Sawyers was charged with rape and second-degree sexual assault. Following a jury trial in the Saline County Circuit Court, Sawyers was convicted on both counts and sentenced to thirty years' imprisonment. On appeal, Sawyers argues that the circuit court erred in denying his motions for directed verdict, denying his motion to merge the charges denying his proffered jury instruction, and denying his motions for a mistrial. We affirm.

The charges arose from allegations that Sawyers molested his thirteen-year-old stepgranddaughter while she spent the night with him. The minor victim ("MV") testified at trial describing the event. Other testimony was given by MV's parents and grandmother, a responding officer, and a sexual-assault nurse examiner (SANE nurse).

MV testified that in August 2022, she and her younger sister were spending the night at their grandparents' house, as they often did. On this night, MV went to sleep in the bed with Sawyers while her sister and grandmother slept in the living room. MV testified that she woke up around 3:00 a.m when Sawyers rolled over and put his arm around her. She said that Sawyers took her hand and made her touch his penis under his shorts. MV testified that Sawyers next rubbed her side and legs before putting his hand under her shirt and touching and squeezing her breasts. She said that Sawyers then put his hand under her shorts and rubbed her vagina on top of her underwear. She said that he rubbed in circles aggressively with two fingers and that it started to sting a little bit. Sawyers then put his hand inside her underwear and rubbed her vagina with two fingers, which she said started to really hurt. When asked by the State to point to a demonstrative aid and tell where his fingers went, MV pointed and affirmed that it was on the "inside of [her] vagina" and "inside of those lips." She said that Sawyers did not stop until she rolled over onto her stomach, and he then started rubbing her back, butt, and legs. She said that Sawyers kept saying "I love you, [MV]," and "I'm glad you're here."

MV testified that she was very confused and scared, and she did not know what to do. She said that she eventually got up the courage to sit up and tell Sawyers that her stomach hurt and she was hungry. MV went to the kitchen and poured a bowl of cereal so Sawyers would hear her and then woke her grandmother up. MV told her grandmother that she was cold and wanted to switch spots with her. MV's grandmother agreed and went into the bedroom leaving MV to sleep in the living room. MV said that she then texted her mother. The text, sent at 3:09 a.m., stated that she wanted to be picked up and did not want to be there anymore. When MV's mother called her a short time later, MV reported that Sawyers had touched her, and her parents rushed over to the house.

MV was interviewed at a child-advocacy center two days later. On cross-examination, Sawyers attempted to impeach her credibility with prior inconsistent statements from the interview transcript. MV testified that Sawyers was awake when he first rolled over and put his arm on her; however she acknowledged that she had told the interviewer that Sawyers may have been "sleep moving" at some point. Regarding penetration, MV acknowledged that she said in her interview that she did not think Sawyers "went inside" but he probably would have if she had not rolled over. When asked whether she was sure today, MV stated that she was "not sure he put his fingers inside of me." On redirect, MV testified that the transcript did show that she told the interviewer that she "felt the pressure on the inside." MV also testified that she knew Sawyers was awake by the way he was breathing and because she could feel his body propped up on the mattress behind her. In a recorded phone call from jail made to his adult son that was played for the jury, Sawyers stated, "Well, I did, I did wrong. We can talk more about it."

Vickie Hutchison, a pediatric SANE nurse, testified that MV had a normal physical exam, meaning that she did not have lasting damage to her body. Hutchison explained that if a victim is touched with a finger in the labia majora, this constitutes labial penetration, but there is an amount of space between the labia and the hymen. She testified that MV told her that Sawyers's finger went into her labia but not necessarily all the way to her hymen. Hutchison testified that it is typical for children to not understand the legal definition of penetration and that it is difficult for children to explain "inside." Hutchison said that "if it's just past the lips, then that's inside."

The circuit court denied Sawyers's motions for directed verdict, and Sawyers presented no witnesses. The jury found him guilty on both counts.

I. Sufficiency of the Evidence

In reviewing challenges to the sufficiency of the evidence, we determine whether substantial evidence, direct or circumstantial, supports the verdict. Standridge v. State, 2023 Ark.App. 141, 662 S.W.3d 255. Substantial evidence is evidence of sufficient certainty to compel a conclusion without resort to suspicion or conjecture. Id. On review, we view the evidence in the light most favorable to the State and consider only evidence that supports the verdict. Id. Matters such as evaluating a witness's credibility and resolving inconsistencies in the evidence are issues for the jury and not the court. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008).

To convict Sawyers of rape, the State had to prove that he engaged in deviate sexual activity with MV, who was less than fourteen years of age. Ark. Code Ann. § 5-14-103(a)(3)(A) (Supp. 2023). "Deviate sexual activity" includes any act of sexual gratification involving the 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) (Supp. 2023). A rape victim's testimony may constitute substantial evidence to sustain a conviction of rape, even when the victim is a child. Standridge, supra. The rape victim's testimony need not be corroborated nor is scientific evidence required, and the victim's testimony describing penetration is enough for a conviction. Id.

Sawyers argues that there was insufficient evidence of penetration based on MV's statement to the interviewer that she did not think he "went inside" and her testimony that she was "not sure he put his fingers inside of me." However, on direct examination, the jury was able to view MV point on the demonstrative aid to where Sawyers's fingers went. The State asked if this was the "inside of [her] vagina" and the "inside of those lips right there" and if she was certain, and MV answered affirmatively. The inconsistency brought out on cross-examination regarding whether Sawyers's finger went "inside" of her was addressed by the SANE nurse's testimony regarding the difficulty children have explaining "inside" and her explanation that the definition of penetration includes "just past the lips." She testified that MV told her that Sawyers's fingers went into her labia but not all the way to her hymen. A conviction for rape requires penetration of only the labia majora, however slight. 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. Ralston v. State, 2019 Ark.App. 175, 573 S.W.3d 607. We hold that there was sufficient evidence to support the conviction for rape. See Hartley v. State, 2022 Ark. 197, 654 S.W.3d 802 (holding that SANE nurse's testimony combined with minor child's description of vibrator'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 defendant penetrated the child's labia majora with the object, even if only slightly).

Sawyers also challenges his conviction for second-degree sexual assault, arguing that there was no evidence that any acts were done for the purpose of sexual gratification. A person commits second-degree sexual assault 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. Ark. Code Ann. § 5-14-125(a)(3) (Supp. 2023). "Sexual contact" means an 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(12)(A). The supreme court has held 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, 288 S.W.3d 213 (2008). MV testified that Sawyers made her touch his penis before he rubbed her breasts, buttocks, and vagina and told her that he loved her. This evidence is sufficient to prove sexual gratification and support the conviction. See McCree v. State, 2021 Ark.App. 205, 624 S.W.3d 114 (holding that jury was allowed to assume that defendant touched eleven-year-old's breasts for sexual gratification).

II. Merger

When making his directed-verdict motion at the close of the State's case, Sawyers argued that the sexual-assault charge should be merged into the rape...