ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CACR01-904

July 3, 2002

ANTONIO LADELL BAKER AN APPEAL FROM CRITTENDEN

APPELLANT COUNTY CIRCUIT COURT

[CR00-478]

V. HON. DAVID N. LASER, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Antonio Ladell Baker was convicted by a jury of rape of a person less than fourteen years of age. He was sentenced to serve ten years in the Arkansas Department of Correction. Pursuant to Anders v. California, 368 U.S. 738 (1967) and Rule 4-3(j) of the Rules of the Supreme Court and the Court of Appeals, appellant's counsel has filed a motion to withdraw as counsel, stating to this court that he has diligently examined the record in compliance with Anders, supra, and that there is no merit to this appeal. Counsel's motion was accompanied by a brief discussing objections that were decided adversely to appellant. Appellant was provided a copy of counsel's brief and has filed pro se points for reversal, raising two additional issues. The State has filed a brief in response to appellant's arguments. The Stateagrees that the appeal is without merit and that counsel should be allowed to withdraw. We affirm appellant's conviction and grant counsel's motion to withdraw.

Factual and Procedural History

The facts in this case are straightforward. Appellant met the victim, A.D., while appellant was dating A.D.'s older sister. Some months later, appellant and A.D. began having sexual intercourse. At the time of their initial sexual contact, A.D. was twelve years of age. She later became pregnant by appellant and gave birth. Afterwards, appellant was arrested and charged with the crime of rape. Appellant was interviewed by the police and informed of his Miranda rights. He waived his rights and consented to give a statement. In the statement, appellant admitted that he had engaged in a sexual relationship with A.D. when A.D. was twelve years of age and he was twenty-two. He further admitted that he was the father of A.D.'s child.

DNA samples were ordered by the court and the results revealed a 99.80% probability that appellant fathered A.D.'s child. At trial, the State introduced into evidence the DNA results and a copy of A.D.'s birth certificate. It also presented testimony from A.D.'s mother, who testified that at the time of the trial A.D. was fourteen years of age, and A.D., who testified she and appellant began having sexual relations when she was twelve years of age.

At the conclusion of the State's case, counsel for appellant moved for a directed verdict, arguing that the State failed to offer sufficient proof to sustain the charge. The court denied the motion.

Appellant testified on his behalf that he knew A.D. was twelve years of age at the time he began to have sexual relations with her. He testified that he thought that as long as he did not force himself upon A.D., he could not be convicted of rape. Appellant testified that he never denied that he was the father of A.D.'s child.

At the close of appellant's case, counsel for appellant renewed his motion for directed verdict. The trial court denied the motion. Following deliberations, the jury found appellant guilty of rape. No new evidence was presented for sentencing, and the jury returned with a sentence of ten years' imprisonment. After finding that there were no significant legal issues for appellate purposes, the trial court denied appellant's request for bail. An appeal was lodged and counsel for appellant filed a motion to withdraw.

Standard of Review

The test for determining whether this appeal falls properly under Anders, supra, is not whether the trial court committed no reversible error, but whether the points to be raised on appeal would be "wholly frivolous." See Tucker v. State, 47 Ark. App. 96, 885 S.W.2d 904 (1994). The Anders brief must contain an abstract of the record in order for our court to made a reasoned decision as to whether we should relieve counsel based on counsel's argument that the appeal lacks merit. See Mitchell v. State, 327 Ark. 285, 954 S.W.2d 814 (1997).

Sufficiency of the Evidence

We treat motions for a directed verdict as challenges to the sufficiency of the State's evidence. See Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999). On appeal, the issue iswhether there is substantial evidence to sustain a verdict. See id. Substantial evidence is evidence that will support a conviction, without a trier of fact being required to resort to mere speculation. See id. Evidence is viewed in the light most favorable to the State, and only evidence that supports a verdict is considered. See id.

A person commits the offense of rape when he engages in sexual intercourse or deviate sexual activity with another person less than fourteen years of age. See Ark. Code Ann. § 5-14-103(a)(1)(C) (Supp. 2001). Arkansas Code Annotated section 5-14-102(b) (Repl. 1998) provides that when the criminality of conduct depends on a child being below the age of fourteen years of age, it is no defense that the actor did not know the age of the child, or that the actor reasonably believed the child to be fourteen years of age or older.

In the present case, the State presented a birth certificate showing A.D.'s age, as well as testimony by A.D.'s mother and A.D., which corroborated A.D.'s age. The State also presented the results of a paternity test which showed a 99.80% probability that appellant was the father of A.D.'s child. A.D. testified that she and appellant had sexual intercourse when she was twelve years of age. The State also presented a statement by appellant in which appellant admitted having sex with A.D. when she was twelve years of age and admitted that he was the father of A.D.'s child. This evidence provided overwhelming proof to sustain appellant's conviction.

Failure to Instruct Jury on Lesser-Included Offense

For his first point of reversal, appellant contends that the trial court erroneously failed to instruct the jury on a lesser included offense. He suggests that the trial court erred becausethere was evidence presented that he did not use force when he had sexual relations with A.D.

The record indicates that the prosecution and counsel for appellant submitted agreed-upon instructions to the court. No objections were raised regarding jury instructions. Nor was a proffer of a particular instruction made at trial. Consequently, appellant's argument is not preserved for appellate review. See Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000) (holding that pro se points for reversal on appeal would not be addressed because points were made for the first time on appeal).

Even if appellant's argument were preserved, the argument seems to suggest that the State was required to demonstrate that he used force against A.D. Appellant's argument is misplaced.

At trial, the State contended that appellant committed rape by engaging in sexual intercourse with a person less than fourteen years of age pursuant to Arkansas Code Annotated section 5-14-103(a)(4) (Repl. 1997). The State was not required to demonstrate the use of force. Instead, it was required to show that appellant engaged in sexual relations with a person less than fourteen years of age. As previously mentioned, the State presented overwhelming proof to meet its burden.

Sentence Constituted Cruel and Unusual Punishment

For his second point of reversal, appellant contends that his ten year sentence for Class Y felony rape constitutes cruel and unusual punishment. Again, appellant argues that the sexual contact was consensual. He also contends that he had no prior offenses.

We will not address arguments, including constitutional ones, that are raised for the first time on appeal. See B.C. v. State, 344 Ark. 385, 40 S.W.3d 315 (2001). Similar to his first point for reversal, appellant's argument is not preserved for appellate review. The record fails to demonstrate that appellant raised an objection regarding his sentence.

Arkansas Code Annotated section 5-4-401 (Repl.1997) provides that defendants who are convicted of Class Y felonies shall be sentenced to a term of imprisonment of not less than ten years and not more than forty years.

In the present case, appellant was convicted of a Class Y felony rape and sentenced to ten years. Given the fact that appellant received the minimum sentence allowable within the sentence range, his contention that his sentence constitutes cruel and unusual punishment is anything but persuasive. This is especially true when we consider appellant's admission that he knowingly and deliberately initiated and continued a sexual relationship with a twelve-year-old child.

Other Adverse Rulings

As previously mentioned, counsel's motion to withdraw was accompanied by a brief in which counsel discussed all objections that were decided adversely to appellant. We have fully examined the proceedings, and agree that the appeal is without merit. Counsel has complied with Anders, supra. Thus, we affirm appellant's conviction and grant counsel's motion to be relieved as counsel.

Affirmed.

Jennings and Neal, JJ., agree.