ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

ROBERT EARL JACKSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1121

May 30, 2001

APPEAL FROM THE BRADLEY COUNTY CIRCUIT COURT

[NO. CR99-42-2]

HON. SAMUEL B. POPE,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case was charged with three counts of rape and one count of kidnapping arising out of incidents that occurred on June 12, 1999. A trial was held on November 3, 1999, after which the jury acquitted him of two counts of rape but was unable to reach a decision regarding the remaining rape and kidnapping charges. A mistrial was declared, and appellant was retried in March 2000. The second jury convicted appellant of one count of rape and one count of kidnapping and he was sentenced to fifteen years' imprisonment for rape and five years for kidnapping. The trial court found that the victim was particularly vulnerable and ordered that the sentences be served consecutively. From that decision, comes this appeal.

For reversal, appellant contends that there is insufficient evidence to support his convictions for rape and kidnapping; that the trial court erred in imposing consecutive

sentences; and that appellant's punishment was disproportionate to that imposed on a different defendant in an unrelated case. We affirm.

Appellant was charged with raping the victim by engaging in vaginal intercourse and/or deviate sexual activity by forcible compulsion, a violation of Ark. Code Ann. § 5-14-103(a)(1) (Repl. 1997). Appellant admits that he engaged in sexual intercourse with the victim, and the element of "forcible compulsion" was the main issue at trial. Forcible compulsion is defined as "physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person." Ark. Code Ann. § 5-14-101(2) (Repl. 1997). "Physical force" means "any bodily impact, restraint or confinement, or the threat thereof." Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). The test for determining whether there was force is whether the act was against the will of the party upon whom the act was committed. Mosley v. State, 323 Ark. 244, 914 S.W.2d 731 (1996). A rape victim is not required to do more than her age, strength, surrounding facts, and all attending circumstances make it reasonable for her to do in order to manifest opposition. Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986). The jury is the sole judge of the credibility of the witnesses, and it is within their province to determine whether the victim was acting under duress and fear. Id. In an appeal challenging the sufficiency of the evidence to support a criminal conviction, we review the evidence in the light most favorable to the appellee, and we affirm if there is substantial evidence to support the verdict. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). In rape cases, Arkansas courts have consistently held that the requirement of substantial evidence is satisfied by the rape victim's testimony. See id.

The victim in the present case testified that appellant threatened to harm her if she did not undress and submit to the rape, that appellant had vaginal intercourse with her against her will, that appellant struck her when she initially refused to perform fellatio on him and that, after she submitted to that demand, threatened to burn her with a cigarette if she did not repeat the act. Furthermore, she testified that she had suffered from cerebral palsy since infancy and that she therefore could not flee or resist. This testimony is substantial evidence to support appellant's rape conviction. See Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998).

Appellant also contends that the evidence is insufficient to support his rape conviction because "the jury acquitted him on the common element of `forcible compulsion' in the first trial...and therefore he could not be convicted at the second trial for any alleged rape act that was part of the same incident and required the jury to again find he used forcible compulsion." This argument was not raised at trial, is unsupported by citation to authority or convincing argument, and therefore, we do not reach it on appeal. See Armstrong v. State, 45 Ark. App. 72, 871 S.W.2d 420 (1994).

Appellant was charged with committing the offense of kidnapping by restraining the victim without consent so as to interfere substantially with her liberty with the purpose of facilitating the commission of any felony or inflicting physical injury upon or engaging in sexual intercourse, deviate sexual activity, or sexual contact with her. See Ark. Code Ann. § 5-11-102(a)(3) and (4) (Repl. 1997). A rapist is subject to prosecution for kidnapping only when the restraint exceeds that degree of restraint that is normally incidental to rape. Leev. State, 326 Ark. 529, 932 S.W.2d 756 (1996). The degree of restraint that is normally incidental to rape is that which is necessary to consummate the act, and any additional restraint will support a conviction for kidnapping. Id.

The victim testified that appellant knocked on her door at 2:30 a.m. and that she opened the door thinking it was a friend. When appellant entered, she told him to leave and reached for the telephone. Appellant said he would leave but instead took the telephone and put it on the floor. Appellant began to remove the victim's underwear and she told him she did not want this. Appellant told her to shut up and grabbed her around her arms. She began to scream and appellant put his hands over her mouth and said "shut up or I will hurt you." She felt her body go numb and appellant raped her repeatedly. The incidents of rape were separated by trips to the bathroom, cigarette breaks by appellant, and further threats of violence and attempts at conversation by appellant. After three hours, appellant left the victim's apartment after warning the victim not to tell anyone he had been there.

Our kidnapping statute speaks in terms of restraint rather than removal. Consequently, it reaches a greater variety of conduct, since restraint can be accomplished without any removal whatever. Commentary to § 5-11-102; see Wofford v. State, 44 Ark. App. 94, 867 S.W.2d 181 (1993). Moreover, it is the quality and nature of the restraint, rather than the duration, that determines whether a kidnapping charge can be sustained. Where the action of the accused substantially confines his victim in such a way that escape is made difficult or impossible, the fact that the restraint is of relatively brief duration does not necessarily remove it from the scope of our statute. Wofford v. State, supra. Among thefactors bearing on the question of whether a separate kidnapping conviction is supportable include whether the restraint prevented the victim from summoning assistance or lessened the defendant's risk of detection. Lee v. State, supra. In the present case there was evidence that appellant prevented the victim from screaming or telephoning for help, and that he spent three hours in the victim's apartment. We think the jury could properly find that appellant's threats of physical harm prevented the victim from fleeing during the intervals between the incidents of rape, and we hold that his kidnapping conviction is supported by substantial evidence. See Wofford v. State, supra.

Appellant asserts that the trial court abused its discretion in making his sentences run consecutively, and that the punishment imposed on him was disproportionate to the punishment imposed in an unrelated case. There was no objection to the sentence imposed at trial and we will not address these issues for the first time on appeal. Johnson v. State, 328 Ark. 526, 944 S.W.2d 115 (1997) (where the record reflects a total absence of any objections after the jury's findings and sentencing are read by the court, we will not consider issues of such nature raised for the first time on appeal); see also State v. Montague, 341 Ark. 144, 14 S.W.3d 867 (2000). In any event, the record shows that the trial court properly employed his discretion by basing the imposition of consecutive sentences on the vulnerability of the victim, who suffered from cerebral palsy, and Arkansas courts have repeatedly stated that we will not reduce or compare sentences which are imposed within the statutory limits. Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990).

Affirmed.

Bird and Neal, JJ., agree