ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION II

MANUEL SUAREZ, JR.,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-882

OCTOBER 3, 2001

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT,

NO. CR99-235, CR99-236,

HON. RALPH WILSON, JR., JUDGE

AFFIRMED

Manuel Suarez waived his right to a jury trial on the charges of rape and sexual abuse in the first degree. At a bench trial, he moved for a directed verdict at the close of the State's case and at the close of all the evidence. His motions were denied and he was convicted of the charges. He was sentenced to 415 months in the Arkansas Department of Correction for the rape and to fifty-six months for the sexual abuse with the sentences to run consecutively. On appeal, he challenges the sufficiency of the evidence to support both convictions. We hold that the evidence is sufficient; thus, we affirm the convictions.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999). When the sufficiency of the evidence is challenged in a criminal conviction, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the State and will affirm if the finding of guilt is supported by substantial evidence. Ward v. State, 64 Ark. App. 120, 981S.W.2d 96 (1998). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other without resort to suspicion or conjecture. Smith v. State, supra. In reviewing the sufficiency of the evidence, we do not weigh the evidence on one side against the other, nor do we pass on the credibility of witnesses. That duty is left to the trier of fact. Johnson v. State, 70 Ark. App. 343, 19 S.W.3d 66 (2000).

At trial, witnesses for the State, a nine-year-old boy, C.R., and his father, Kenneth Ware, testified that they had never seen Suarez until one evening in July 1998. C.R. testified that Suarez, who was drunk, drove up and asked C.R. to find a neighbor girl; that the girl was not allowed to leave her house; that Suarez offered to take C.R. to get some fireworks; that C. R. and his parents went with Suarez in his car, with C.R.'s father driving and C.R. sitting in Suarez's lap; and that C.R. stayed in the car with Suarez while his parents bought fireworks. C.R. stated:

He said he would give me five if I would let him suck it. He meant five dollars. He wanted to suck my penis. . . . While I was thinking of what I was going to tell him, he pulled my pants down and he already started sucking it. . . . He put his mouth on my penis. He done it for about three minutes then Dad came to the car. When he opened the car door, the dome light came on; Dad was mad.

C.R. further testified that the four of them then drove to his grandmother's house, where his father slammed the car keys on the table and went to get the sheriff.

Kenneth Ware's story essentially confirmed that told by the son. He also testified that he did not have a car at the time; that he at first turned down Suarez's offer to get fireworks, that after about two hours Ware decided it would be all right to get bottle rockets; and that

Suarez wanted to take C.R. and bring him back, but that Ware would not allow it. Ware testified that he and his wife were out of the car for no more than five minutes buying the bottle rockets, that he opened the car and the dome light came on when he returned to the car, and that he then saw Suarez "sucking on [C.R.]'s peter." Ware stated that while he was trying to get the right number to call the sheriff, his mother gave Suarez the car keys to get rid of him and that he left.

Ware testified that Suarez had been cruising in and out of the driveway since five or six o'clock, and that they had been at the fireworks stand around eight thirty or nine o'clock. He said that he gave the sheriff's department a description of the car and later identified Suarez from a photo line up.

R.E., a fourth-grade boy, testified regarding a separate incident in which he and another boy left R.E.'s house with Suarez in his car, thinking that they were going to Suarez's house to play with his children one night after dinner. R.E. testified that Suarez drove past a bridge and stopped in the middle of a gravel road where there were no houses, and that the boys were frightened and thought that they would be murdered. He said that while he was leaning on the car, Suarez came over and opened R.E.'s pants; that Suarez put his hands inside of R.E.'s pants and touched his privates, and that the boys ran. R.E. testified that they ran past the bridge and into a cotton field until they could not run any more, and that Suarez took them back home in his car and offered them twenty dollars to not tell anyone what had happened. R.E. said that he told his mother and that they called the police.

J. A., who was eleven years old at the time of trial, testified to the same story told byR.E. J.A. testified that he cried and told Suarez that he was scared, and that Suarez said, "[w]hat I am going to do to you is going to make you feel better." J. A. said that Suarez had locked the doors of the car at that point. J. A. testified that after they got out past the bridge, he walked around the car and saw Suarez with his hands in R. E.'s pants. J. A. said that the time was late at night.

David Eiler, R.E.'s father, identified Suarez as the man who had taken his son and a friend to spend the night with his children, but had brought R. E. home about an hour later. Eiler testified that Suarez had come over about 10:30 p.m.

Sherry Suarez, wife of the appellant, testified that on the date of the events concerning R.E., her husband left the house sometime after 8:00 p.m. but had returned by around 9:30. She said that her husband went to pick up the two boys to spend the night, but that he returned home without them, telling her that he had stopped to show them a fishing hole. Appellant testified that he had picked up R.E. and J. A. to take to his house to play with his children, that they stopped to look at a fishing hole, and that the boys decided not to go to his house because it was late. He denied touching R.E. except to pat him on the back.

Appellant argues on appeal, as he did below, that there were inconsistencies in the testimony of the witnesses regarding the dates and times of the alleged offenses. Regarding the charges of rape and deviant sexual activity with C.R., the trial court addressed these arguments as follows:

Based upon the evidence presented here today and the reasonable inferences of that testimony and upon the interest of the respective witnesses having in the outcome of this case and the consistency or inconsistency and reasonableness orunreasonableness of their testimony, the Court does find beyond a reasonable doubt the State of Arkansas has met it Burden of Proof . . . .

The trial court also found that the State had met its burden of proof for a conviction of sexual abuse in the first degree against the victim, R.E. The weight of the evidence and the credibility of witnesses are matters for the trial court rather than for the appellate court. Viewing the evidence in the light most favorable to the State, we hold that the trial court's finding of guilt was supported by substantial evidence; therefore, we affirm both convictions. Affirmed.

Griffen, J., and Hays, Special Judge, agree.