ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION III

CLINTON FLUD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-695

March 14, 2001

APPEAL FROM THE BOONE

COUNTY CIRCUIT COURT

[CR 00-240]

HONORABLE ROBERT

McCORKINDALE, II, CIRCUIT

JUDGE

AFFIRMED

Appellant, Clinton "Tinker" Flud, was charged with the offenses of rape, kidnaping, and sexual solicitation of a child under the age of fourteen. He was tried by a jury and found guilty of the offenses of rape and sexual solicitation. The trial court directed a verdict in his favor on the kidnaping charge. He was sentenced to serve 120 months on the rape conviction and seventy-two months on the sexual-solicitation conviction, with both sentences to run consecutively. We affirm.

The gist of appellant's first point of appeal is that the trial court erred in denying his motion for a directed verdict because the minor victim's testimony was so unbelievable that the matter was transformed from one of credibility for the jury to decide to one of law for the court to decide. He cites no authority for his position, and we find no error.

A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Pond v. State, 69 Ark. App. 346, 14 S.W.3d 525 (2000). We review the evidence in a light most favorable to the State, as appellee, and affirm if there is substantial evidence to support the verdict. Id. Evidence is substantial, whether direct or circumstantial, if it is of sufficient force to compel a conclusion one way or the other with reasonable certainty. Id. Here, the victim was thirteen years old at the time of trial, October 1999. The offenses took place in the summer of 1999. He testified that he met appellant when he was walking by appellant's house, and appellant asked him if he wanted to mow the yard; that he and a friend mowed the yard; that another time he picked up rocks and sticks in the yard; and that a third time, he raked leaves. He stated that he entered appellant's house two times; that one of those times, appellant asked him to go into the bedroom and "put his private part in my mouth"; that appellant offered him a dollar if he would do that; that he "got to doing it and then [he] stopped" and returned to the living room; that appellant wanted him to continue, but he did not want to; that he was sitting in the living room when appellant "put a movie in and showed me it"; that on the videotape, he saw appellant and a girl and they were on a bed and there was a guy with a tape recorder who had a white beard and white hair and appellant had his private part on the bottom part of the girl, the area between her legs, and that the girl just had a shirt on; that appellant "had me put his private part in my mouth after he showed me the movie [and] after he put his private part in my mouth, he put my private part in his mouth"; and that appellant gave him some candy and a dollar and told him not to tell anybody.

Appellant's efforts to emphasize inconsistencies in the victim's testimony concerning his descriptions of what was on the tape, whether he was inside appellant's house on one or more occasions, and the exact order and nature of his sexual encounters with appellant are simply not persuasive. The victim's testimony was sufficiently consistent concerning the actual solicitation and rape. The trier of fact is free to believe all or part of a witness's testimony. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). The credibility of witnesses is an issue for the jury and not for this court. Id. Further, the jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State's account of the facts rather than the defendant's. Id. Here, viewing the evidence in the light most favorable to the State it is clear that there was substantial evidence to support the verdict.

For his second point of appeal, appellant contends that the trial court erred in allowing the State to play a portion of a VHS tape recording that showed appellant engaged in sexual acts because it was not relevant and because any probative value was outweighed by unfair prejudice. We disagree.

Relevant evidence is that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ark. R. Evid. 401. Appellant denied having the child in his house and denied showing him a videotape. The victim's testimony contradicted that of appellant. The VHS tape, which was retrieved from within appellant's house, corroborated the victim's description of what was on the videotape, i.e., appellant and a girl were on a bed and there was a guy with a white beard and white hair and appellant had his "private part" onthe "bottom part" of the girl, "the area between her legs," and that the girl was wearing only a shirt. The relevance is clear.

Moreover, as our supreme court explained in Jefferson v. State, 328 Ark. 23, 30, 941 S.W.2d 404, 408 (1997):

A videotape is admissible if it is relevant, helpful to the jury, and not prejudicial. Generally, the same considerations and requirements for admissibility that apply to photographs also apply to videotapes. The admissibility of such evidence is in the sound discretion of the trial judge, whose discretion will not be set aside absent an abuse of that discretion. And while this court's decision in Berry holds that a trial court cannot admit photographs carte blanche, it only prohibits the admission of photographs whose prejudicial effect substantially outweighs any probative value.

. . . .

The mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Of course, if a photograph serves no valid purpose and could be used only to inflame the juror's passion, it should be excluded.

(Citations omitted.)

Here, establishing the veracity of the victim's story was critical. The videotape helped to do that and any prejudicial impact was outweighed by its probative value, particularly in light of the trial court limiting the view to portions that confirmed the child's testimony. We find no abuse of the trial court's discretion.

For his third point of appeal, appellant contends that the trial court erred in denying his motion for a new trial, which was based in part upon newly discovered evidence. We find no error.

Arkansas Code Annotated section 16-89-130 (1987), provides in pertinent part:

(c) The court in which a trial is had upon an issue of fact may grant a new trial when a verdict is rendered against the defendant by which his substantial rights have been prejudiced, upon his motion, in the following cases:

. . . .

(6) Where the defendant has discovered important evidence in his favor since the verdict[.]

Newly discovered evidence is the least favored ground in moving for a new trial. Miles v. State, 59 Ark. App. 97, 954 S.W.2d 286 (1997). When a new trial is denied on this ground, we will reverse only for an abuse of discretion. Id. To prevail, appellant must demonstrate that the new evidence would have impacted the outcome of the case and that due diligence was exercised in trying to discover the evidence. Id.

At the hearing on the motion for a new trial, appellant presented the testimony of two witnesses concerning the newly discovered evidence: Rochelle Lesley, the victim's aunt, and Bradley Scott, who lives with Rochelle Lesley. Mr. Scott's credibility was so undermined at the hearing that appellant does not rely upon his testimony on appeal. Ms. Lesley testified that following appellant's trial she became aware of his conviction for molesting her nephew, the victim in the underlying case, but that she had not been contacted prior to the trial concerning her "knowledge of her nephew." She testified that about four years ago, whichwould have been 1995 when her nephew was around eight or nine years old, she discovered her daughter and her nephew in a room "with their pants and their underwear down and

. . . he was hunching her." She said that she spanked him but did not report the 1995 incident to the authorities. In 1998, however, she caught her nephew touching her daughter's "private parts between the legs," and she reported that incident to the Harrison Police Department.

Appellant took the position in the hearing on the motion for new trial, and here on appeal, that Ms. Lesley's testimony was newly discovered evidence showing that appellant's alleged victim had sexually molested another child prior to the alleged incident with appellant. In order to understand the significance that appellant places upon Ms. Lesley's testimony, it is necessary to know the circumstances leading to appellant's arrest. The case against appellant arose out of a complaint by the neighbor of the prosecuting victim in the instant case that the victim himself had performed oral sex on the neighbor's two young sons. During the course of that investigation, the victim in the instant case was asked if somebody had been doing something like that to him. He immediately named appellant, and the case against appellant was pursued, resulting in the instant conviction.

In support of his argument for a new trial appellant contends that the discovery of the information presented by Ms. Lesley established that the victim had already learned how to engage in graphic sexual conduct prior to his alleged encounter with appellant, thereby answering "jury questions like how else could the boy have known anything about sexual matters [regarding the incident with the two young neighbor boys that led to appellant's arrest] had [appellant] not taught him [and] that was the thrust of the [State's] whole approachof the trial." We cannot say that appellant was successful in demonstrating that Ms. Lesley's testimony would have impacted the outcome of the case. It is therefore unnecessary to ascertain whether appellant established that he exercised due diligence in trying to discover the evidence. In short, we find no abuse of the trial court's discretion in denying appellant's motion for a new trial based on this testimony.

For his final point of appeal, appellant contends that "the trial court erred in simply instructing the bailiff to tell the jury to keep on deliberating after the court had received word that the jury was deadlocked and without calling the court back into session so that appellant could be appraised of the situation and given a chance to object or to ask for the well-balanced Allen instruction." This contention served as an additional ground in support of appellant's motion for a new trial. At the hearing on the motion, the jury foreman and the bailiff from the original trial testified. The jury foreman testified that after approximately one hour of deliberation, he notified the bailiff that the jury was deadlocked. The bailiff testified that upon notifying the court of what the foreman had told him, the court "instructed me to go back and tell them that they needed to continue to work on the case."

The only authority cited by appellant as support for his position on appeal is Bush v. State, 261 Ark. 577, 550 S.W.2d 175 (1977), which he argues "reversed a conviction because of the judge's communications with the jury." We find Bush to be distinguishable. In Bush, our supreme court explained:

The jury, after several hours of deliberation, reported that they were hopelessly divided. The lawyers in the case, thinking a mistrial to be imminent, discussed the possibility of a negotiated plea of guilty. The prosecutor insisted upon a 21-yearsentence, but the defense was unwilling to recommend more than 12 years. The attorneys, in a novel but misguided effort to obtain helpful information, agreed that the judge might confer with the jury to determine two things only: their numerical division and the degree of homicide upon which they were divided.

[The judge] rashly agreed to counsel's joint request and conferred privately with the jury in the courtroom, after the accused, the attorneys, and everyone else had been excused. After a substantial length of time [the judge] sent the jury back to the jury room, reported to counsel the information that had been sought, and explained that, upon an inquiry by a juror, he had discussed with the jury the governor's possible pardoning power with respect to a life sentence without parole. He said he had told the jury that the legislature could not take away the governor's constitutional pardoning power. The judge also mentioned that one or two jurors had been confused, but he thought they were straightened out. Within five minutes the jury, after having been hopelessly deadlocked, returned a verdict of guilty and fixed the sentence at life imprisonment without parole.

. . . .

That the discussion took place at all must be regarded as prejudicial error, for, despite some inconsistencies in our earlier opinions, we made it unmistakably plain in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), that jurors are not concerned with the parole system and consequently should not be given even completely accurate information upon that subject. Here it is a reasonable inference that the jurors would not have returned their actual verdict had they not been given [the judge's] explanation of the governor's pardoning power.

261 Ark. at 579, 550 S.W.2d at 176-77.

We do not find Bush to be controlling in any fashion with respect to what occurred here. Moreover, concerning the "Allen instruction" for deadlocked juries, AMCI 2d 8102, the note on its use provides: "This instruction should not be given until the jury, after prolonged deliberation, has not reached a verdict. The trial judge may wish to give this type of instruction in his own words." (Emphasis added.) Here, the jury had only been deliberating for one hour, and the judge did not have a personal discussion with the jurors about the pardoning power or any other matter; rather, the judge sent the bailiff to tell the jurythat "they needed to continue to work on the case." Appellant has not persuaded us that the trial court abused its discretion in refusing to grant a new trial on this basis.

Affirmed.

Jennings and Neal, JJ., agree.