ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE DIVISION I I

CHRISTOPHER DARNELL SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-01039

April 11, 2001

AN APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR99-3794]

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

AFFIRMED

Appellant, Christopher Darnell Smith, was convicted of one count of rape and one count of sexual abuse and sentenced to concurrent terms of ten years and three years, respectively, in the Arkansas Department of Correction. Appellant argues that the State failed to present sufficient evidence to support his rape conviction and that the trial court's decision to allow the State to re-open its case after a directed verdict motion by appellant is reversible error. We affirm the trial court in both respects.

Appellant, age twenty-three at the time of the incident, and his wife lived on the Little Rock Air Force Base and hired the victim, age thirteen at the time, to babysit their one child. The appellant would drive the victim home after her babysitting duties were completed. The victim also frequently encountered appellant at the air base swimming pool. They engaged in "horseplay" where they would attempt to dunk each other and where appellant would pick up the victim and her friends and throw them into the water. The victim reported that during one of the horseplay

sessions, appellant inserted his finger into her vagina. Additionally, the victim reported that appellant had asked her probing questions about her sexual experiences, discussed his own sexual experiences, made unwanted sexual advances towards her, and on one occasion touched her breasts.

At trial, the victim testified that appellant put his hands under her swimsuit bottoms into her "privates," and she responded affirmatively when the State asked if appellant had put his finger "inside" of her. At the close of the State's case, appellant moved for a directed verdict on the rape charge, alleging that the State failed to prove penetration. The State responded that euphemistic terms are allowed and the victim's testimony that he put his finger "inside" her "privates" was enough for the required element of the offense. The trial judge agreed that medical terms were not required, but stated that the victim did not describe or point to what body part she considered to be her "privates." Prior to the trial judge ruling on the directed verdict motion, the State requested that it be allowed to re-open its case and inquire more specifically about the victim's perception of what constituted her "privates." The trial judge agreed and upon re-examination, the victim testified that what she meant by "private parts" was her vagina, and when asked if appellant's finger went in her vagina "a little bit or a lot," she replied "a lot."

Appellant argues that this additional testimony was particularly prejudicial and constituted reversible error. Appellant also argues that even after the State was allowed to re-open its case, it failed to prove that appellant's finger penetrated the victim's labia majora1.

A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). We review the evidence in a light most favorable to the State and affirm if there is substantial evidence to support the verdict. Skiver v.State, 336 Ark. 86, 983 S.W.2d 931 (1999). 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. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). Our courts have consistently held that a victim's testimony may constitute substantial evidence to sustain a conviction of rape. See Franklin v. State, 308 Ark. 539, 825 S.W.2d 263 (1992); Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). This is true even when the rape victim is a child. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995) (citing Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987)). More particularly, the testimony of the victim which shows penetration is enough for conviction. Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994). In addition, the rape victim's testimony need not be corroborated, Winfrey, supra, nor is scientific evidence required. White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990).

Arkansas Code Annotated section 5-14-103(a)(4) (Repl. 1997) provides that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Section 5-14-101(1)(B) (Repl. 1997) defines "deviate sexual activity" as any act of sexual gratification involving "[t]he penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person."

When a defendant challenges the sufficiency of the evidence, he must apprise the trial court of the specific basis on which the motion is made. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994) (citing Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992)). A directed verdict motion must be a specific motion to apprise the trial court of the particular point raised. Id. (citing Patrick v. State, 314 Ark. 285, 862 S.W.2d 239 (1993)). The reasoning underlying these holdings is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grantthe motion, or, if justice requires, allow the State to re-open its case and supply the missing proof. Tester v. State, 342 Ark. 549, 553, 30 S.W.3d 99, 102 (2000).

Here, the trial court's ruling allowed the victim to clarify what she meant by her "privates." This ruling is consistent with the implicit purpose of Arkansas Rule of Criminal Procedure 33.1(a) (2000), which requires a motion for a directed verdict, stating a specific basis, be made at the conclusion of the State's case and again at the conclusion of the presentation of all the evidence.

Appellant also argues, that even with the victim's supplemental testimony that "a lot" of appellant's finger was in her vagina, the State did not meet the required burden of proof regarding penetration. Specifically, appellant argues that the victim in this case was fourteen at the time of trial, and that she should have known the names of her body parts. Appellant states that if he "had penetrated her, gone past the labia majora, then she should have known that, and she could have testified to that." We assume that appellant does not literally mean that a fourteen-year-old should have known and testified that her labia majora was penetrated, and only argues that specific testimony regarding the level of penetration was necessary.

After considering the evidence, and the precedent in juvenile rape cases, it is clear to us that the victim's testimony that "a lot" of appellant's finger went into her vagina constitutes substantial evidence to sustain the trial court's denial of a directed-verdict challenge. Also, even if the State had not been allowed to re-open its case, the initial proof that appellant had placed his hands under the victim's swimsuit bottoms and his finger "inside" of her "privates" was sufficient proof to withstand a directed verdict motion. A swimsuit bottom covers only two orifices that a person could place a finger "inside" of, as the State correctly, albeit crudely, points out. Penetration of either orifice constitutes rape.

Affirmed.

Robbins and Crabtree, JJ., agree.

1 The labia majora is defined as the two outer rounded folds of adipose tissue that lie on either side of the vaginal opening. Therefore, penetration of the vagina, by definition, constitutes penetration of the labia majora.