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ARKANSAS COURT OF APPEALS DIVISION I No. CR-13-337

Opinion Delivered March 19, 2014 BYRON KEVIN BEAVER APPELLANT APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. CR-2011-1009] V. HONORABLE DAVID L. REYNOLDS, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

JOHN MAUZY PITTMAN, Judge

Appellant was residing with his wife and children in Faulkner County when his wife

discovered that appellant was sexually abusing their son, who was then about seven years old.

Appellant was charged with and convicted of three counts of rape and received three

consecutive sentences totaling ninety years’ imprisonment. His sole argument on appeal is

that one of those counts should be reversed because there was insufficient evidence of

penetration. We affirm.

When reviewing a challenge to the sufficiency of the evidence, we view the evidence

in the light most favorable to the State and consider only the evidence that supports the

verdict. Breeden v. State,

, ___ S.W.3d ___. We will affirm a conviction if

substantial evidence exists to support it.

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.

A rape victim’s Cite as

uncorroborated testimony describing penetration may constitute substantial evidence to

sustain a conviction of rape, even when the victim is a child. Woods v. State,

, ___ S.W.3d ___. The rape victim’s testimony need not be corroborated, and scientific

evidence is not required.

Moreover, 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.

Appellant was charged with rape under Arkansas Code Annotated section 5-14-

103(a)(3)(A) (Repl. 2009). That section provides that 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. Deviate sexual activity includes any act of sexual gratification involving

the penetration, however slight, of the mouth of a person by the penis of another person.

(1)(A) (Supp. 2009).

The incident in question took place at the Faulkner County home of the victim’s

Aunt Sherry. When asked at trial how appellant touched him on that occasion, the then

eight-year-old victim responded “the same way he did almost every time.” Appellant argues

that this is too ambiguous to support a finding of penetration and that his conviction for rape

on this count is therefore not supported by substantial evidence. We do not agree. We

conclude that the boy’s testimony regarding the nature of the abuse makes it clear that the

way appellant violated him “almost every time” was by putting the boy’s penis in his mouth.

Testifying about the abuse, the boy said:

I call that body part that I just touched there [a penis] the tenders. I use my tenders for going to the bathroom. I’m okay. When I say that [appellant] would

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touch my tenders, he would use his hand to touch my tenders, sometimes. There were other body parts that he would touch my tenders with. He would use his mouth. As to how he would touch my tenders with his mouth, he would go up and down with his mouth. When he would go up and down with his mouth, my tenders were in his mouth. . . . This happened at my house, at the lake house. . . . It happened in my room and my parents’ [room]. When he would touch my tenders, when his mouth would be on my tenders, this would happen in the bed. . . . It was just my dad and I in the room where this happened in my house. I remember it was at nighttime.

I have an Aunt Sherry. . . . [Appellant] touched me in Aunt Sherry’s house. I remember I was in the bedroom at Aunt Sherry’s house. When I was at Aunt Sherry’s house, he would touch me the same way he did almost every time. . . . There were other places besides Aunt Sherry’s house and my lake house that my dad touched me. That was at the White River and the deer camp. . . . I call that the bottoms. My dad touched me there. That happened at the White River only; that only happened at the White River. I remember how he touched me there; he put his finger—on my bottom. When I say on my bottom, I mean like on the inside.

The abuse at the White River (which was not charged here because it did not occur

in Faulkner County) was unique in that it was the only time, according to the victim’s

testimony, that appellant digitally penetrated the victim’s anus. When the victim’s entire

testimony is read in context, we think that the jury could reasonably have concluded that

appellant’s usual practice was to touch the victim’s penis with his hands and place the victim’s

penis in his mouth, and that this is what the victim was referring to when he testified that

appellant touched him at Aunt Sherry’s house “the same way he did almost every time.”

Affirmed.

WYNNE and BROWN, JJ., agree.

Jack T. Lassiter and John Wesley Hall, for appellant.

Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.

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