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ARKANSAS COURT OF APPEALS DIVISION IV No. CR-16-1073

K.B. Opinion Delivered: September 27, 2017 APPELLANT APPEAL FROM THE GARLAND V. COUNTY CIRCUIT COURT [NO. 26JV-16-119]

STATE OF ARKANSAS APPELLEE HONORABLE TED C. CAPEHEART, JUDGE

AFFIRMED

RAYMOND R. ABRAMSON, Judge

K.B. appeals the Garland County Circuit Court’s June 20, 2016 adjudication order

finding him guilty of rape pursuant to Arkansas Code Annotated section 5-14-103 (Repl.

2013). K.B. and his codefendant, C.J.M., were tried together in a joint delinquency

proceeding. We affirmed the circuit court’s decision in C.J.M. v. State,

,

handed down this same date, and we affirm the instant case as well.

On appeal, K.B. argues that (1) the circuit court erred by denying his motion to

dismiss because the State presented insufficient evidence to meet its burden of forcible

compulsion; (2) the circuit court should have granted his motion for new trial because

material evidence 1 was destroyed and suppressed; (3) the circuit court erred in denying the

motion to suppress K.B.’s statement in violation of Arkansas Code Annotated section 9-27-

1 Brady v. Maryland,

(1963). Cite as

321 (Repl. 2015), and Miranda v. Arizona,

(1986); and (4) the circuit court

abused its discretion in denying his motion for a new trial based on newly discovered

evidence.

K.B. first argues that the State did not present sufficient evidence to meet its burden

of forcible compulsion under Arkansas Code Annotated section 5-14-103. The statute

provides that a person commits rape if he or she engages in sexual intercourse or deviate

sexual activity with another person by forcible compulsion. See

-

103(a)(1). Although a delinquency adjudication is not a criminal conviction, the standard

of review is the same as it would be in a criminal case. E.g., A.D. v. State,

,

, 698 (citing E.S. v. State,

). A motion to

dismiss made during an adjudication proceeding is a challenge to the sufficiency of the State’s

evidence. E.g., Stewart v. State,

,

(2005) (citing

Ark. R. Crim. P. 33.1).

When a defendant challenges an adjudication based on the sufficiency of the evidence

presented at the hearing, the evidence is reviewed in the light most favorable to the State.

(citing Gamble v. State,

,

(2003)). Only evidence that

supports the adjudication will be considered.

The test for determining the sufficiency of

the evidence is whether the adjudication is supported by substantial evidence, direct or

circumstantial.

Substantial evidence is evidence forceful enough to compel the fact-finder

to make a conclusion without resorting to speculation or conjecture.

In rape cases, the requirement of substantial evidence is satisfied by the rape victim’s

testimony. See, e.g., Allen v. State,

,

(citing

2 Cite as

Bishop v. State,

,

(1992)). Our appellate courts have

repeatedly held that the uncorroborated testimony of a rape victim that shows penetration

is sufficient evidence for a conviction. Lamb v. State,

,

(2008). Additionally, there is no requirement that there be scientific evidence of rape.

See, e.g., Sandrelli v. State,

.

Here, the victim testified in detail about the events that took place on February 24,

2016, and how both K.B. and C.J.M. had forced her into the fieldhouse and how C.J.M.

had “touched her on the inside” with his finger, while K.B. restrained her by the waist and

grabbed her hands.

As noted above, a person commits the offense of rape if he or she engages in sexual

intercourse or deviate sexual activity with another person by forcible compulsion.

(a)(1). “Deviate sexual activity” is defined as any act of sexual

gratification involving (A) the penetration, however slight, of the anus or mouth of a person

by the penis of another person; or (B) the penetration, however slight, of the labia majora

or anus of a person by any body member or foreign instrument manipulated by another

person.

(1).

“Forcible compulsion” is “physical force or a threat, express or implied, of death or

physical injury to or kidnapping of any person.”

(2). “Physical

force” is “any bodily impact, restraint or confinement, or the threat thereof.” Freeman v.

State,

,

(1998). Force is present if “the act is against

the will of the party upon whom the act was committed.” Williams v. State,

,

.

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The elements of accomplice liability are defined by Arkansas Code Annotated section

5-2-403 which, in pertinent part, provides:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, the person: (2) Aids, agrees to aid, or attempts to aid the other person in planning or committing the offense[.]

Although it is true that the mere presence at the scene of the crime does not make

one an accomplice as a matter of law, Pilcher v. State,

, 338–39,

, 847–48 (1990), each participant is criminally liable for his or her own conduct and

cannot disclaim responsibility because he or she did not personally take part in every act that

went into making up the crime as a whole. Bass v. State,

, at 2. A

defendant is considered an accomplice if he or she takes some part in or performs some act

involved in the commission of the crime; relevant factors in determining the connection of

an accomplice to a crime are the presence of the accused in the proximity of a crime, the

opportunity to commit the crime, and an association with a person involved in a manner

suggestive of joint participation.

In the instant case, the testimony presented at the hearing was substantial evidence

to show that while K.B. was forcibly restraining the victim, C.J.M. digitally raped her. The

victim’s own testimony, if believed by the trier of fact, in this case the circuit court, was

sufficient to establish K.B.’s guilt. Any inconsistencies in the victim’s account of what

happened were for the circuit court to resolve. See, e.g., Lowe v. State,

,

. We hold there is no basis for reversal on this argument. This

court will not second-guess the fact-finder’s credibility determinations. Brown v. State, 2009

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Ark. App. 873. We will disregard testimony that the fact-finder has found to be credible

only if it is so inherently improbable, physically impossible, or so clearly unbelievable that

reasonable minds could not differ about it. Conte v. State,

,

.

Such is not the case here.

K.B.’s second point is that the circuit court abused its discretion in denying his

motion for a new trial based on the allegation that the State destroyed certain text messages

contained in the victim’s cell phone that had voluntarily been turned over to the police and

suppressed a report that had been generated following a forensic-rape examination of the

victim. The decision to grant or deny a motion for new trial lies within the sound discretion

of the circuit court, whose action will be reversed only upon a clear showing of abuse of

that discretion or manifest prejudice to the defendant. Wright v. State,

,

at 5. The burden is on the appellant to establish that a violation of pretrial discovery was

sufficient to undermine confidence in the outcome of the trial.

at 5–6. Absent a showing

of prejudice by the violation, this court will not reverse.

.

K.B. claims that the State destroyed evidence from the victim’s cell phone. C.J.M.

makes the same argument, and as explained in that case, the circuit court offered a

continuance to obtain the missing text messages directly from the cell-phone provider, but

defense counsel chose not to seek that relief. That remedy, however, could have settled the

question whether deleted or undeleted cell-phone text messages were, in fact, exculpatory.

Characterizing the evidence as exculpatory does not make it so. It was appellant’s burden to

demonstrate prejudicial error, not merely to allege it. Vilayvanh v. State,

, at 5 (citing Snell v. State,

,

(1986)).

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K.B. also maintains that the circuit court should have granted his motion for a new

trial because the State failed to serve both of his defense attorneys with copies of the rape-

examination report that was prepared in connection with the case. However, this argument

is meritless. Following the denial of K.B.’s motion to dismiss, his trial counsel, who notably

is also his appellate counsel, put on his case-in-chief. Among the witnesses who were called

was Marci Hermann, the sexual-assault nurse examiner employed by the Cooper-Anthony

Child Advocacy Center, who conducted a forensic-rape exam on the victim on February

26, 2016. Defense counsel examined Hermann regarding the findings contained in her

report, which reflected that she had not found any physical trauma in connection with the

alleged assault. Defense counsel moved to admit her rape report into evidence, and it was

admitted without objection by the State. The forensic-exam report was admitted as

“Defendant’s Exhibit 2” and is contained in the record, under seal.

The forensic examiner was vigorously questioned by K.B.’s counsel regarding her

report, which indicated there was no physical trauma. Both sides had a logical explanation

for the examiner’s conclusions and argued them before the circuit court. The fact that a rape

exam was performed was also discussed in conjunction with the other tests that were

conducted by the Arkansas State Crime Lab and in the forensic interview of the victim.

As such, K.B. has failed to demonstrate error or show the required prejudice. K.B.

has not shown that he was so prejudiced that there was a reasonable probability that the

outcome of the trial would have been different. We will not reverse absent a showing of

prejudice. Wright, supra.

K.B.’s third point is that the circuit court erred in denying the suppression of

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spontaneous statements he made during his arrest. This court conducts a de novo review

based on the totality of the circumstances, reviewing findings of historical facts for clear

error and determining whether those facts give rise to reasonable suspicion or probable

cause, giving due weight to inferences drawn by the trial court. K.L. v. State,

,

(citing Davis v. State,

,

(2003)).

K.B. bases his suppression theory on a provision of the Arkansas Juvenile Code,

which provides what our supreme court has described as “the right against self-incrimination

for statements made to an intake officer or probation officer during the intake process.”

Munhall v. State,

, 44–45,

, 864–65 (1999) (citing

(Repl. 1998)). In his brief, K.B. argues that he made the statement to “an

intake officer.” However, it was Detective May, the arresting officer, who testified at trial,

and he made no mention of intake. A second Hot Springs police officer, who was not an

intake or probation officer, but rather a sergeant, testified at the hearing that he was also

present when K.B. made the statement to the effect of, “How can it be rape if our penises

weren’t out?”

In discussing the application of this statutory requirement, our supreme court said

the following with regard to law-enforcement contact with a juvenile:

Appellant’s first argument under this assignment of error is that the trial court violated

(Repl. 1991), which provides that a statement made by the juvenile to the intake officer shall not be admissible in evidence against the juvenile. There simply was no statement to an intake officer that was admitted into evidence. An incriminating statement made to the trooper was admitted into evidence, but that is not prohibited by the cited statute.

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Manatt v. State,

,

(1992).

Moreover, the incriminating statement in Manatt was made in response to a question.

Here, no question was asked. K.B. made the statement of his own volition. K.B. has failed

to prove that the circuit court’s decision was clearly erroneous or that he was prejudiced.

K.B.’s final point claims that a new trial should be granted on the basis of newly

discovered evidence that was unavailable because of the imposed gag order. K.B. maintains

that he was unable to properly “investigate” the allegations raised by the prosecution in this

case as a result of the circuit court’s order regarding publicity.

In Misskelley v. State,

,

(1996), our supreme court stated

that newly discovered evidence is the least favored ground for a new-trial motion. We will

reverse only if the lower court abused its discretion in denying the motion for a new trial.

To prevail on a motion for a new trial based on newly discovered evidence, the movant

must show that the new evidence would have impacted the outcome of his or her case and

that he or she used due diligence in trying to discover the evidence. Wilcox v. State,

,

(2000). Here, the circuit court’s order was entered to

protect the rights of the defendants with regard to pretrial publicity. Specifically, the order

did not include “any request for assistance in obtaining evidence[.]” On the record before

us, there is no proof to show that K.B. used due diligence in trying to discover any new

evidence.

K.B. also maintains that the new evidence would show that the victim perjured

herself on the stand by saying that she had never made any prior claims of sexual assault. But

our appellate courts have long held that newly discovered evidence that relates only to the

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impeachment of a witness does not afford grounds for a new trial. See Hayes v. State,

,

(1925); Whittaker v. State,

,

(1927) (“It is the general rule of practice in this court not to reverse the ruling of

the trial court in refusing a new trial on the ground of newly discovered evidence where

such evidence tends merely to impeach the credibility of witnesses.”); Taylor v. State,

,

(1989) (“Evidence which only attacks the credibility

of other testimony is not grounds for a new trial. Williams v. State,

,

(1986); Orsini v. State,

,

, cert. denied,

,

(1984).”).

Because K.B. has not shown due diligence and argues that the new evidence would

be used to impeach the victim’s testimony, we hold that the circuit court did not abuse its

discretion in denying the motion for a new trial. Accordingly, we affirm.

Affirmed.

VAUGHT and HIXSON, JJ., agree.

John W. Walker, P.A., by: Lawrence Anthony Walker and Amelia Theresa LaFont, for

appellant.

Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.

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