ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I

GREGORY RAYBURN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1045

MAY 23, 2001

APPEAL FROM THE MARION COUNTY CIRCUIT COURT

[NO. CR 99-92]

HONORABLE ROBERT McCORKINDALE, II, CIRCUIT JUDGE

AFFIRMED

A jury sitting in the Marion County Circuit Court convicted the appellant, Gregory Rayburn, of rape in violation of Ark. Code Ann. § 5-14-103(a)(4) (1987). On appeal, appellant presents three arguments: (1) that his conviction is not supported by sufficient evidence; (2) that he was prejudiced by the trial court allowing the State to amend the felony information; and (3) that the trial court erred in allowing the victim to give rebuttal testimony. We find no error and affirm.

For appellant's first point on appeal, he contends that his conviction for rape is not supported by sufficient evidence. Appellant made a motion for directed verdict at the close of the State's case and at the close of all of the evidence. He asserted that the State failed to produce proof to establish that the victim was less than fourteen years of age at the time the crime was committed.

A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). In reviewing a motion for directed verdict, the evidence is viewed in the light most favorable to the State, and a conviction will be affirmed if there is substantial evidence to support it. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation and conjecture. Id. Conflicts and inconsistencies in evidence are to be resolved by the trier of fact, not the trial court when ruling on a motion for directed verdict. Williams v. State, 325 Ark. 432, 930 S.W.2d 300 (1996).

Arkansas Code Annotated § 5-14-103(a)(4)(A) (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. Arkansas Code Annotated § 5-14-101(1)(A) defines "deviate sexual activity" as "any act of sexual gratification involving . . . the penetration of . . . [the] mouth of one person by the penis of another person[.]"

In August 1999, Arkansas State Police received information from the Department of Human Services that appellant had sexually molested Jamie Treat, now a grown woman, while he was her stepfather. Investigator Becky Gage contacted appellant who agreed to an interview. After being properly Mirandized and informed of the nature of the allegations, appellant stated to Investigator Gage that he and his ex-wife, the victim's mother, had "gotten into a confrontation" about this type of allegation. He further added that "he did not believe that the allegation had occurred, but it was possible that he had done what they saidhe did."

A second interview was conducted by Investigator Gage's supervisor, Sergeant Robert Rhoten. Appellant was again Mirandized and questioned regarding his previous statement. Appellant stated that while living with the victim and her mother, he "had allowed [the victim] to perform oral sex upon him." Appellant stated that he thought that the victim "was around thirteen or fourteen" at the time and in his signed statement indicated it had been "seven or eight" years ago.

Investigator Gage further testified that Treat told her the incident had occurred the first year that she had gone to Flippin Public Schools. School records introduced into evidence indicated that the victim was first enrolled there in the seventh grade and that she was twelve years of age at that time. This information corresponded with information received by the investigator from the Department of Human Services prior to her interview of the victim. The earliest statement by Treat regarding the offense indicated that she had been in the seventh grade when the incident with appellant occurred and that she was "about thirteen" years of age. Treat took the stand and testified that she moved to the Flippin area in August 1989 when her mother married and moved in with the appellant. She also indicated that her birth date was February 22, 1977, that she was twelve years old when she enrolled in the seventh grade at the Flippin Public Schools, and that she turned thirteen the following year.

Treat testified that after she started the seventh grade, she confided in her stepfather that she had started "liking boys" and asked him questions. In response, her stepfather toldher that she should sexually gratify men so they would like her or buy her things. Treat described how her stepfather induced her to perform oral sex upon him. Treat was consistent throughout her statements and testimony that the events that constituted the rape charge all occurred while she was in the seventh grade in Flippin Schools. We find this to be unequivocal testimony from the victim that, when she was twelve years of age, appellant engaged in sexual activity with her that met the elements of rape. The testimony of the victim is sufficient evidence to sustain a conviction for rape. Moreover, a rape victim's testimony need not be corroborated. Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990).

Appellant claims that other evidence in the case either elicited on cross-examination or presented in the defense's case demonstrated that Treat was mistaken about the date of the offense. The consistency or inconsistency of any testimony, even that coming from the same witness, is a matter to be resolved by the jury. Williams v. State, 331 Ark. 263, 962 S.W.2d 369 (1998). Testimony presented at trial indicated that before the age of the victim had become an issue, Treat told someone at the Department of Human Services that she was in the seventh grade when her stepfather raped her. We believe that the jury was entitled to determine if the victim's memory was accurate with regard to the date of the offense.

For appellant's second point on appeal, he maintains that he was prejudiced by the trial court allowing the State to amend the originally filed felony information that charged him with incest in violation of Ark. Code Ann. § 5-26-202(5)(c), with an additional charge for rape, without seeking leave to amend pursuant to Ark. Code Ann. § 16-85-407 (1987). Appellant also contends that the amendment is violative of that same statute because itchanged the nature and degree of the charged offense.

The information that charged appellant with incest was filed on August 30, 1999. The information indicated that the charged offense was a Class "A" felony and that the approximate time period for the commission of the offense was "seven or eight" years ago. The information also described the victim as being "about 12 at the time of the offense."

The number of years that had elapsed since the commission of the offense of incest would normally have barred the State from prosecuting appellant. However, by operation of Ark. Code Ann. § 5-1-109(h) (Repl. 1997), the period of limitations did not start to run until the victim was eighteen years of age. Treat reported the incident to authorities and the Class "A" felony charge was filed approximately four-and-a-half years after Treat turned eighteen years old.

Defense counsel filed a motion to reduce the charge against appellant. The motion noted that the language relied upon by the State that designated this as a Class "A " offense was not enacted until 1997. See Ark. Acts No. 1321, § 1(c). Having been enacted after the commission of the offense, it was inapplicable to his case and the offense could be charged only a Class "C" felony. The State, however, has only three years to charge a Class "C" felony from the time the victim becomes eighteen years old. Since the victim did not report the crime until she was twenty-two years old, a Class "C" felony would be time-barred by the three-year limitation of Ark. Code Ann. § 5-1-109.

In response to appellant's motion, the State amended the existing information by adding the rape charge. Pursuant to Ark. Code Ann. § 5-1-109(a)(1) & (h) (Repl. 1997), theState had six years from the time the victim turned eighteen in which to file the charge. There is no dispute that the Class "Y" felony came within the six-year limitation. The trial court conducted a hearing in order to determine what action had been taken by the State in response to appellant's argument as to the Class "C" felony being time-barred by the statute of limitations. The trial court allowed the amendment to supersede the original charge of incest, which it ultimately dismissed.

Pursuant to Ark. Code Ann. § 16-85-407, an amendment to an information calls into concern matters of notice and prejudice. See Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983). We note that appellant's defense to the charges lodged by the State was that he engaged in deviate sexual activity with his stepdaughter within a time period that was either beyond the statute of limitations for incest or the age requirement for rape. Therefore, we do not believe that appellant was either surprised or prejudiced by the rape-charge amendment to the information.

However, the State had not sought "leave to amend" the information from the court pursuant to Ark. Code Ann. § 16-85-407 (1987). Instead, the State had initially sought a new charge through a probable-cause determination. This was certainly evidence of the State's intent to supersede the original felony information with a new one. See Ark. Code Ann. § 16-85-410. However, the trial court properly adjudicated this dispute that the State's amendment was examined and ratified by the court without surprise or prejudice to appellant. Had the State acted on the probable-cause determination or a new felony information, appellant would be in no different position. Furthermore, the addition of therape charge did not change the nature of the offense alleged. In the case of either incest or rape, the State was required to prove essentially two things: the age of the victim at the time of the offense, and the actions of appellant that constituted deviate sexual activity. Finally, once the trial court had ruled that the originally charged offense could only exist as a Class "C" felony, defense counsel would have likely moved to dismiss the charge based upon the statute of limitations. The trial court circumvented this by dismissing the incest charge and allowing the State to go forward on the rape charge that was based on the same conduct. We do not believe that the trial court erred in allowing the State to amend its information. For appellant's final point on appeal, he claims that the trial court erred in allowing the victim to give rebuttal testimony. Appellant's sole contention at trial was that, while he did have sexual relations with his stepdaughter, it occurred after she had turned fourteen years of age and did not satisfy Ark. Code Ann § 5-14-103. Appellant called witnesses in his case to establish that the time of the crime was later than what the victim remembered. Treat was recalled by the State to respond to the testimony of defense witnesses.

Admissibility of rebuttal evidence is discretionary with the trial court, and we will not reverse absent a showing of abuse of that discretion. Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995). Whether rebuttal evidence could have been produced by the State in its case-in-chief does not preclude its introduction on rebuttal if the testimony serves to refute evidence raised by the defense. See Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986).

During cross-examination of the State's witnesses, defense counsel sought to elicitother events that Treat associated with appellant and when the offense had occurred. One such event concerned a "crush" that Treat had on a schoolmate named Terry Palmere. In response to the cross-examination, Treat stated that she knew Palmere from school, but that he was not in her class nor did he ride her bus. She added that, while Palmere was not in her same grade and was older than she was, he had failed in school.

Defense counsel continued its questioning as to Elaine Dobrich, a school friend of the victim. Treat testified that, at some point, she had told Dobrich that she never had her spend the night at her house because of comments appellant made about Dobrich and because of what he had done to Treat. Treat was also cross-examined regarding her statements that placed the crime around the time she was babysitting for a neighbor's two infant sons. Treat testified that one of the infants was still in diapers.

After the trial court denied the directed-verdict motion, defense counsel called witnesses whose sole purpose was to contradict this testimony. For instance, defense counsel called Lorna Lacompt, who testified that she and her husband, along with their two infant sons, moved into the Ranchettes community in September or October of 1990. Lacompt said that her youngest son, Kendall, was born in January of that year. Lacompt testified that during the time that Treat babysat her children, she "had to have been either side of twelve."

Kathy Long, a record custodian from the Flippin Schools, was called as a defense witness. She testified that Elaine Dobrich first enrolled in the Flippin Schools in the 1991-92 school year. She further testified that Terry Palmere was in the sixth grade in the 1989-90school year.

By calling the victim back to the stand, the State was able to respond to the matters raised by defense counsel. Treat testified that she and her mother lived with her stepfather until she was sixteen years old. They lived with him for nearly four years. Treat's testimony indicates that she certainly knew, for instance, that what her stepfather had done to her and his comments regarding one of her friends, prevented her from asking a friend to spend the night. Moreover, based upon the additional testimony, the State established that the time when Treat babysat the Lacompt children was still within the time frame of when Treat was under the age of fourteen. The rebuttal testimony was in direct response to defense counsel's attempts to prove that Treat was over thirteen years of age when the offense occurred. Therefore, we conclude that the trial court's ruling on this issue did not constitute an abuse of discretion. Furthermore, we believe that the testimony elicited during rebuttal bolsters the sufficiency of the evidence for appellant's rape conviction.

Affirmed.

Stroud, C.J., and Hart, J., agree.