NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

ALMER WILLIS WRIGHT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-472

December 19, 2001

APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT

[NO. CR-2000-53-2]

HON. PHILLIP H. SHIRRON,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case was charged with raping a two-year-old girl and a three-year-old girl, and with first-degree sexual abuse of a seven-year-old boy. After a jury trial, he was convicted of those offenses and sentenced to thirty years' imprisonment. From that decision, comes this appeal.

For reversal, appellant contends that the evidence is insufficient to support his convictions for rape and first-degree sexual abuse, and that the trial court erred in permitting hearsay testimony regarding the statements of the two female victims; in ruling that the male victim was qualified to testify and failing to strike his testimony because of asserted inconsistencies; and in denying appellant's motion for a continuance. We find no error, and we affirm.

Considerations of double jeopardy require that, in appeals from criminal convictions, we review the sufficiency of the evidence before considering trial errors. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Appellant made a directed-verdict motion at trial, arguing that there was insufficient evidence of rape because there was no evidence of penetration, and that there was insufficient evidence of first-degree sexual abuse because the victim's testimony was not credible.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Samples v. State, 50 Ark. App. 163, 902 S.W.2d 257 (1995). In determining the sufficiency of the evidence to support 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. Hagen v. State, 47 Ark. App. 137, 886 S.W.2d 889 (1994). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other, inducing the mind to pass beyond mere suspicion or conjecture. Wofford v. State, 44 Ark. App. 94, 867 S.W.2d 181 (1993). In determining whether there is substantial evidence to support the jury's verdict, it is permissible to consider only the testimony that tends to support the finding of guilt. Id.

A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years old. Ark. Code Ann. § 5-14-103(a)(1)(C)(i) (Supp. 2001). "Sexual intercourse" means penetration, however slight, of the labia majora by a penis. Ark. Code Ann. § 5-14-101(9) (Supp. 2001). "Deviate sexual

activity" means any act of sexual gratification involving the penetration, however slight, ofthe anus or mouth of one person by the penis of another person, or the penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person. Ark. Code Ann. § 5-14-101(1) (Supp. 2001).

A person commits sexual abuse in the first degree if, being eighteen years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen years old. Ark. Code Ann. § 5-14-108(a)(4) (Repl. 1997). "Sexual contact" means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of a person or the breast of a female. Ark. Code Ann. § 5-14-101(8) (Supp. 2001).

The record shows that appellant is fifty-two years old and that the crimes were committed shortly after he had married the victims' grandmother. The children called him PawPaw or Grandpa Bill. He was charged with raping J.I., a two-year-old girl. J.I. was found incompetent to testify. Her out-of-court statement was introduced through her mother, Brandy. Brandy testified that her mother was married to appellant, and that J.I. frequently visited her mother's house and spent the night. J.I. spent the night in appellant's home on Christmas 1999. A few days after Christmas, Brandy saw J.I. stick her fingers in her panties and touch herself. Brandy told her not to do that; J.I. replied, "PawPaw does." She also stated that, while J.I. was in the bathtub with her infant brother, J.I. asked Brandy if she could suck on her brother's weenie, and said that she sucked on PawPaw's. Brandy stated that J.I. had never been exposed to anything like that. Brandy stated that she did not knowwhether to believe J.I. until she learned about the allegations that appellant had abused the other two children.

Appellant was also charged with raping N.W., a four-year-old girl. N.W. was found incompetent to testify, and her out-of-court statement was introduced through her mother, Danielle. Danielle testified that appellant was married to her mother-in-law. She stated that she was unaware of the incident involving J.I. in February 2000, when N.W. came into the kitchen and told her that Grandpa Bill put his finger in her too-too, which is N.W.'s word for her vagina. N.W. also told her that appellant put his private in her mouth, that something tasting like nasty apple juice came out of it, and that appellant wiped it up with a towel and threw the towel on the floor. Danielle stated that N.W. also told her that appellant stuck his tongue in her mouth, and that he told her not to tell about these things. Danielle further testified that she then took N.W. to Children's Hospital, that she did not question her children, but that an investigator from family services came to her house the next day and did so.

Doug Sheffield, a child abuse investigator for the Arkansas State Police, testified that he had interviewed over one thousand children and that he could tell when a child had been coached. He said that N.W. had not been coached. He also said that N.W. repeated to him the statements she related to her mother, and that she additionally told him that Grandpa Bill put his weenie in her too-tee, that it hurt her, and that he put it in very far.

P.W., a seven-year-old boy, testified that Grandpa Bill touched him on his privates at Grandma's house, sometimes on the bed and sometimes on the couch. He also stated thatappellant grabbed P.W.'s hand and made P.W. rub appellant's privates, telling him that it would make it grow. Finally, he testified that appellant told him not to tell about these things.

There was evidence that appellant had both of the little girls suck on his penis. This is sufficient evidence of penetration per os to support his convictions of rape. Likewise, P.W.'s testimony constitutes sufficient evidence of sexual contact to support appellant's conviction for sexual abuse in the first degree. Although appellant asserts that P.W.'s testimony is not credible, the determination of credibility is within the exclusive province of the jury, and the jury's determination is binding on appeal. Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987). We hold that appellant's convictions are supported by substantial evidence.

Appellant next contends that the trial court erred in permitting hearsay testimony regarding the statements of the two female victims. The trial court ruled, inter alia, that these statements were admissible under Ark. R. Evid. 804(b)(7), which provides that a statement made by a child under the age of ten concerning a sexual offense against that child is admissible if the trial court determines that the statement "possesses sufficient guarantees of trustworthiness that the truthfulness of the child's statement is so clear from the surrounding circumstances that the test of cross-examination would be of marginal usefulness." In deciding whether the statement is sufficiently trustworthy, the trial court may consider any factor it deems appropriate, including but not limited to the spontaneity of the statement, the lack of time to fabricate, the consistency and repetition of the statement andwhether the child has recanted the statement, the mental state of the child, the competency of the child to testify, the child's use of terminology unexpected of a child of similar age, the lack of motive by the child to fabricate the statement, the lack of bias of the child, whether it is an embarrassing event the child would not normally relate, the credibility of the person testifying to the statement, suggestiveness created by leading questions, and whether an adult with custody or control of the child may bear a grudge against the accused offender and may attempt to coach the child into making false charges. Although not all of these factors were present in this case or favorable to admissibility, several of them were, and it would appear in particular that the natural and unaffected way in which the youngest children mentioned appellant's acts bore the stamp of truthful spontaneity. The trial judge carefully considered, weighed, and detailed the factors under Rule 804(b)(7)(A) before ruling that the hearsay statements should be admitted into evidence, and we cannot say he abused his discretion in doing so. Jameson v. State, 333 Ark. 128, 970 S.W.2d 785 (1998).

Next, appellant argues that the trial court erred in ruling that P.W. was qualified to testify and in failing to strike his testimony because of asserted inconsistencies. This argument is so lacking in merit that it borders on the frivolous. Appellant makes much of the fact that P.W. stated at the pretrial hearing that his father had once told him to lie when his father was getting a divorce, but denied at trial that his father ever told him to lie. However, a cursory examination of the record shows that this was a simple misunderstanding on the boy's part, who thought defense counsel had, before trial, asked him whether his father had ever told him a lie. That appellant's counsel was aware of thismisunderstanding is plain from his use of the latter testimony during his closing argument, when he stated that P.W.'s father had essentially taught him to lie by lying to him. This minor inconsistency had no bearing on P.W.'s competency to testify, and the determination of P.W.'s credibility was properly submitted to the jury. See Chappell v. State, 18 Ark. App. 26, 710 S.W.2d 214 (1986).

Finally, appellant argues that the trial court erred in denying his motion for a continuance to obtain additional evidence. We do not agree. A lack of diligence alone is sufficient cause to deny a continuance when the motion is based on a lack of time to prepare. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (2001). From our review of the record, it appears that appellant would not have required additional time had he been diligent in reviewing the prosecution's open files and investigating his case prior to trial.

Affirmed.

Stroud, C.J., and Griffen, J., agree.