ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION IV

ONIS MICHAEL KELLEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-01036

JUNE 6, 2001

APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT

[NO. CR1999-169-1]

HONORABLE DON EDWARD GLOVER, CIRCUIT JUDGE

AFFIRMED

Appellant brings this appeal from a jury verdict finding him guilty of rape of an adult female and sentencing him to ten years in prison. He alleges two points of error: (1) the trial court erred in denying appellant's motion for directed verdict of not guilty on the count of rape, and (2) the trial court erred in denying appellant an evidentiary hearing on his motion for new trial on the basis of juror misconduct. We find no error and affirm.

In addressing appellant's first point, this court treats directed verdict motions as challenges to the sufficiency of the evidence. Bishop v. State, 310 Ark. 479, 484, 839 S.W.2d 6, 9 (1992). We affirm if there is substantial evidence to support the verdict, and in making this determination, we review the evidence in the light most favorable to the appellee. Id. In rape cases, Arkansas courts have consistently held that the requirement ofsubstantial evidence maybe satisfied by the rape victim's testimony. Id. The jury is the sole judge of the credibility of the witnesses. Spencer v. State, 255 Ark. 258, 261, 499 S.W.2d 856, 858 (1973); Harrison v. State, 222 Ark. 773, 775, 262 S.W.2d 907, 909 (1953).

In the present case, the victim testified that the rape occurred on an isolated country road during the late night and early morning hours of August 21-22, 1999, in Ashley County, Arkansas. Appellant admitted being with the victim at the time and place where she testified the offense occurred, but denied that there was any sexual contact.

The victim testified that on the night of the incident, she had just turned eighteen, met some people at Monticello, and went with them to a nightclub in Louisiana. One of the people was appellant, who was the father of one of the young men in the group. She testified that she had three beers during the course of the evening. The group traveled in two cars. On the return trip, the group stopped and people switched vehicles leaving appellant and the victim in one car together. She said that she thought it would be okay to ride with the appellant since they were going to follow the car. However, on the highway she saw the other car go straight and the appellant turned saying they were going to take a shortcut but then stopped the car. The victim testified in detail concerning the rape, including the fact that appellant had cut her panties off and thrown them in the ditch. Although she stated that to her knowledge he did not ejaculate, she observed him wiping himself off and throwing the napkin or paper towel into the ditch near her underwear.

A sergeant of the Morehouse Parish Sheriff's Office testified that he had located the

proximity of the location where the incident occurred based upon information provided by the appellant. He also testified that at the site, he found the victim's panties and a wad or clump of paper towels. He further stated that appellant had requested a DNA test saying, "I don't know why she is doing this to me. I guess I didn't do nothing for her," referring to the victim and indicating that his private parts didn't work. The chief deputy sheriff of the Ashley County Sheriff's Office identified various items of evidence which included a roll of paper towels recovered from the middle section of the rear seat of appellant's vehicle, in addition to the victim's panties and the recovered paper towel. A forensic biologist testified that she had found semen on the inside groin area of appellant's blue jean pants; however, no semen was found on the other items of evidence.

Appellant argues on appeal that the lack of forensic evidence to support the victim's account in this age of "miracles of modern forensic science" combined with the testimony of appellant's long-time personal physician regarding defendant's medical conditions raises the implausibility of the victim's version of the rape.

We note that forensic evidence is not a requirement before finding substantial evidence to support a conviction. The victim's testimony satisfies the requirement. Bishop, 310 Ark. at 484, 839 S.W.2d at 9. No corroboration of the victim's testimony is required. Spencer, 255 Ark. at 261, 499 S.W.2d at 858; Harrison, 222 Ark. at 775, 262 S.W.2d at 909. In this case, we have not only the victim's testimony, but physical evidence collected at the scene of the rape and from appellant's vehicle as well. We hold that sufficient evidence supports the jury's verdict and affirm.

We also find no merit to appellant's second point for reversal. Appellant's judgment and commitment order was filed in the circuit court on February 14, 2000. On February 18, 2000, he filed a timely motion in which he requested a hearing and alleged that he was entitled to a new trial because one juror entered the courtroom during deliberations without permission where she first went past the appellant and his family discussing the case and then was standing near the prosecutor and the victim and her family while they were in conversation. In addition, he alleges that two unknown jurors were seen smoking in front of the courthouse during a recess and were close enough to the family of appellant to overhear conversations regarding the trial.

An attached affidavit of the court bailiff stated that he had observed the juror leave the jury room to apparently retrieve her purse from the jury box, that he had approached her and escorted her back to the jury room, and that she would have had to have passed the appellant and his family in returning to the jury box. Four additional affidavits from appellant's family supported the other allegations in the motion. In response to appellant's motion, the court set the matter for hearing on March 3, 2000. At the hearing, appellant's counsel did not present any evidence on the motion, but requested that the court declare appellant indigent and set a date for a second hearing so that he could have more time to subpoena the jurors. The court granted the indigency request, but denied the new-trial motion based on the contents of the motion and affidavits, without scheduling or conducting a second hearing.

Appellant relies on Crouch v. State, 62 Ark. App. 33, 968 S.W.2d 643 (1998), inwhich the circuit court denied a motion for a new trial without conducting a hearing. This court remanded Crouch with the instruction that the circuit court conduct a hearing on the motion, holding that the failure to conduct a hearing prevented the defendant from "adequately develop[ing] facts and circumstances surrounding the claim" to enable the court to conduct a meaningful review of the circuit court's denial of the motion." Id. at 37, 968 S.W.2d at 645. In this case, the trial court held a hearing and found that based upon the evidence before it and the proffer of counsel that there was insufficient reason to believe that jury misconduct occurred.

We hold that the trial court held a hearing as scheduled pursuant to Ark. R. Crim. P. 33.3 and did not err in refusing to grant a new trial. Rule 33.3 plainly allows for the granting of a continuance if "the circumstances justify that the hearing or determination be delayed." While appellant's argument read broadly could imply that his statements saying that he needed to investigate further equated to a request for a continuance, appellant does not argue that he asked the trial court for a continuance nor that the trial court erred in refusing to grant a continuance.

Accordingly, we affirm.

Jennings and Robbins, JJ., agree.