ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION I

CA01-947

October 9, 2002

JAMES VIRGIL PARKS AN APPEAL FROM LITTLE RIVER

APPELLANT CHANCERY COURT [J01-53]

V. HON. CHARLES A. YEARGAN, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

This case arises from a juvenile proceeding in Little River County. Appellant, James Virgil Parks, appeals from his conviction of rape of his cousin, a seven-year old boy. Appellant argues that (1) there was insufficient evidence to support his conviction, (2) the trial court erred in denying his motion to dismiss for failure to state with particularity the facts and circumstances upon which the criminal information was based, and (3) the trial court erred in denying his motion for a new trial based upon the discovery of new evidence that was unavailable at the time of trial. We disagree and affirm on all points.

At or about the beginning of the year 2001, appellant spent time with his cousin D.R., a seven-year old boy, on the golf course at the Little River Country Club where D.R. lives. D.R. testified that appellant took him into a "wooden house" or shelter-type structure, where he grabbed D.R. by the neck, pulled down his pants, and "sticked his thing up [his] butt." D.R. stated that they "went into that wooden house probably four, around four times." D.R. was able to recall specific details such as the facts that appellant used lotion, referred to his penis as "dick," and that "[i]t was big." During the abuse, according to D.R., appellant asked him whether it "feel[s] good," upon which D.R. first lied and then stated that it did not feel good. D.R. could recall the color and shape of the lotion tube. However, D.R. could not precisely state when it happened. He stated:

This was probably, I don't know, one, two, three probably, around probably three or one or so weeks ago. [Appellant] was taking me to the wooden house when it was still warm. It's been since the ice storm, since this spring. Probably spring because it was a little warm. I don't know if it was during school. It was during the evening but it wasn't getting very dark.

Appellant went to his home to retrieve a pornographic book from his room, while he had D.R. with him. Apparently, appellant tried to force D.R. to look at the pornographic material. At that time, the grandmother of appellant and D.R. came into the room, and appellant tried to hide the book in the shelf. However, D.R. managed to pull the book out of the shelf so the grandmother could discover it. The events culminated in a prosecutor's petition against appellant on or about June 8, 2001, and in appellant's arrest.

During the bench trial, on June 19, 2001, a school bus driver, Terry Frady, testified that she had the opportunity to observe both D.R. and appellant. She stated that D.R. repeatedly grabbed boys and girls in their private areas, and that she talked to his parents and the principal about that problem, but that there is no documentation on it. Concerning appellant, Frady testified that she never had to correct him for grabbing people and thatappellant is a "good boy" in her opinion.

Counsel for appellant made an oral motion before the trial to dismiss the juvenile petition for failure to state with particularity when the alleged rape took place. The trial court denied that motion. At the close of the State's case, appellant made a non-specific motion for directed verdict, but did not renew the motion at the close of all the evidence. After the trial and appellant's conviction of rape, appellant obtained a written medical report of a physical examination of D.R. that took place at the Arkansas Children's Hospital. The report stated that there were no physical findings indicating any type of penetration. It is unclear from the facts in the record when the report was made, or when the alleged penetration took place. However, the medical report indicated a suspicion of sexual abuse, but it is unclear whether this entry referred to physical findings of any sort or to the history of the examinee. At the time of the adjudication hearing, neither the prosecutor nor the defense had possession of the written medical report, but both sides were aware of the information it contained. Both parties stipulated at the hearing that there were no physical findings.

On August 1, 2001, appellant moved for a new trial because he considered the written medical report to constitute new evidence, but the trial court denied the motion. Appellant previously had filed his notice of appeal on July 5, 2001. Appellant did not file another notice of appeal, nor amend the previous notice, after the denial of his motion for a new trial.

I. Sufficiency of the Evidence

Appellant argues as one of his points on appeal that the evidence was insufficient tosupport his conviction of rape. Because of considerations of prohibitions against double jeopardy, we review the sufficiency of the evidence prior to examining trial error. Chrobak v. State, 75 Ark. App. 281, 58 S.W.3d 387 (2001). Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Id. This review can include an evaluation of otherwise inadmissible evidence. Id. We look at the evidence in the light most favorable to the State, considering only the evidence that supports the judgment or verdict, and will affirm if there is substantial evidence to support the verdict. Id. Evidence is sufficient to support a verdict if it is forceful enough to compel a conclusion one way or another. Id. Our supreme court has held that the testimony of a rape victim satisfies the substantial evidence requirement in a rape case. Id. (citing Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991)). The uncorroborated testimony of a rape victim is sufficient to support a conviction if the testimony satisfies the statutory elements of rape. Id. Circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion. Id. In addition, a minor rape victim's testimony is admissible where the trial court is convinced of the victim's ability to understand the consequences of not telling the truth. Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982). The fact finder at trial deserves our deference in matters of witness credibility. Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997). Particularly in child rape cases, the trial judge is better suited to evaluate the competency of the child than the appeals court. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986).

Furthermore, the Arkansas Rules of Criminal Procedure apply to juvenile delinquencyproceedings. Ark. Code Ann. § 9-27-325(f) (Repl. 2002). Thus, in order to preserve a challenge to the sufficiency of the evidence on appeal, a juvenile-delinquency defendant must comply with Arkansas Rule of Criminal Procedure 33.1(b) (2002), which states that in a nonjury trial a motion to dismiss must be made at the close of the State's case and renewed at the close of all the evidence. See also Jones v. State, 347 Ark. 409, 64 S.W.3d 728 (2002). A conviction of rape must be based on sexual intercourse or deviate sexual activity with another person, either by forcible compulsion or by lack of consent, including lack of capacity to give consent as in the case of a victim under the age of fourteen. Ark. Code Ann. § 5-14-103 (Repl. 1997). Proof of penetration can be circumstantial and is required for both rape and deviate sexual activity. Whitmore v. State, 263 Ark. 419, 565 S.W.2d 133 (1978); D.D. v. State, 40 Ark. App. 75, 842 S.W.2d 62 (1992).

We hold that appellant failed to preserve his sufficiency challenge for appeal because he only moved for a directed verdict at the close of the State's case, but did not renew the motion at the close of all the evidence. But even if we could reach the merits of appellant's argument, we would still find that substantial evidence supports appellant's conviction. The victim, D.R., testified concerning all the elements of rape, including penetration. D.R. testified in some detail how the alleged rape took place. While it is true that D.R. could not precisely state the time when the rape allegedly occurred-a point distinct from appellant's next argument concerning certain deficiencies in the prosecutor's petition-a precise time frame is not a necessary element for a conviction of rape. Nance v. State, 323 Ark. 583, 918 S.W.2d 114, cert. denied, 519 U.S. 847 (1976). In a similar manner, even though appellantargues on appeal that the witness-victim's age is somehow a problem of credibility and competency, in light of established law we defer to the trial judge's discretion in evaluating such witnesses' credibility.

II. Motion to Dismiss for Failure to State with Particularity

Appellant further argues that it was error for the trial court to deny his motion to dismiss the juvenile delinquency petition for failure to state the precise time when the alleged rape took place. In this context, appellant would like for us to draw an analogy between the motion to dismiss, used in his case, and a bill of particulars. The charging instrument in a juvenile proceeding is a delinquency petition. Ark. Code Ann. § 9-27-310 (Repl. 2002). The requirements of such a petition as to the charge are found in Arkansas Code Annotated section 9-27-311 (Repl. 2002). There is no specific requirement that information regarding the specific time of the offense be included, unless time happens to be an element of the particular offense. See id. A bill of particulars, however, is available in adult prosecutions. § 16-85-403(a)(3) (1987). Notwithstanding this, section 9-27-311 does not provide a bill of particulars or a similar mechanism as to a delinquency petition. Arkansas case law is silent on that question.

While the Arkansas Rules of Criminal Procedure apply to juvenile delinquency proceedings, those rules are also silent on the issue of whether a bill of particulars can be had in a juvenile proceeding. See Ark. Code Ann. § 9-27-325(f) (Repl. 2002); Mason v. State, 323 Ark. 361, 914 S.W.2d 751 (1996) (holding that the Arkansas Rules of Criminal Procedure apply to delinquency proceedings). Appellant fails to point us to any authoritythat would support such analogy. Current law in our state does not support this argument. Consequently, we hold that the delinquency petition met the requirements of the Juvenile Code because it stated everything that section 9-27-311 requires. Specifically, its alleged lack of specificity regarding the time of the offense does not render the petition defective.

Even if we were to hold that the motion to dismiss was in the nature of a bill of particulars, a further analysis of applicable law shows that appellant's argument fails. An information or indictment, in an adult prosecution, is sufficient to charge an individual with a crime if it clearly states the offense, the party to be charged, and the county in which the offense was committed. Ark. Code Ann. § 16-85-403 (1987); David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). It is not necessary to provide the particular circumstances of the offense, unless they are necessary to constitute a complete offense. § 16-85-403. When a defendant feels that the information or indictment lacks sufficient facts to allege a crime such that he is not able to properly defend, he may request the State to furnish a bill of particulars. David, 295 Ark. at 135, 748 S.W.2d at 119. Our supreme court has held that "where the information is definite in specifying the offense being charged, . . . the charge itself constitutes a bill of particulars." Nance v. State, 323 Ark. 583, 918 S.W.2d 114, cert. denied, 519 U.S. 847 (1996). Notably, time is not an essential element of rape, and therefore, the absence of a specific date or time frame of an offense from the information or indictment does not render the charge defective. Id.

Furthermore, the record before us does not show that appellant ever requested a bill of particulars. We therefore hold that appellant is procedurally barred from raising this issue on appeal. See, e.g., Douthitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996). At the hearing,appellant only moved to dismiss the petition because it did not state when the alleged rape occurred. Appellant never requested a bill of particulars or otherwise submitted a request for the State to provide more information. Instead, we are only faced with one motion to dismiss and a delinquency petition that states sufficient information to constitute a non-defective charge of rape, including a vague reference to the time of the offense "[o]n or about the beginning [of] the year 2001." Therefore, we affirm the trial court's decision.

III. New Evidence

Appellant filed a motion for new trial based upon allegedly new evidence resulting from a written medical examination report, on August 1, 2001. Prior to that date, the lower court had entered an amended order on July 12, 2001, after its initial order of June 19, 2001. Appellant had filed a single notice of appeal on July 5, 2001, prior to his motion for new trial. It therefore appears that the motion for new trial was timely, based on the amended order, pursuant to Arkansas Rules of Criminal Procedure 33.3(b) (2002). However, the question remains whether appellant can raise the denial of his motion for new trial on appeal without having filed a notice of appeal pertaining to that motion, or otherwise having amended the existing notice of appeal. The timely filing of a notice of appeal is jurisdictional and we should thus address it first. Henry v. State, 49 Ark. App. 16, 894 S.W.2d 610 (1995). Arkansas Rules of Appellate Procedure-Criminal 2(b)(2) (2002) states that

[a] notice of appeal filed before disposition of any post-trial motions shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Such a notice is effective to appeal the underlying judgment or order. A party who also seeks to appeal from the grant or denial of the motion shallwithin thirty (30) days amend the previously filed notice, complying with subsection (a) of this rule.

(Emphasis added); see also Smith v. State, 329 Ark. 238, 947 S.W.2d 373 (1997). In the case at bar, appellant failed to file a subsequent amendment to the original notice of appeal. Therefore, we find ourselves unable to reach the merits of this particular point on appeal.1 Affirmed.

Hart and Jennings, JJ., agree.

1 Even if we were to reach the merits, we would be unable to find abuse of discretion in the trial court's decision, necessary to reverse. See Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985) (stating the appropriate standard of review). What appellant calls new evidence was already known to both prosecutor and defense counsel at trial. Both parties stipulated that there were no physical findings. Appellant does not establish that the evidence was new, merely because it existed in written form after the trial. Appellant fails to demonstrate how the evidence would have affected the outcome of the trial because both parties stipulated to the information contained in the report that later constitutes supposedly new evidence in writing. Appellant also could not demonstrate how he was prejudiced by the absence of the evidence when he was aware of its information and his lawyer stipulated to it. We reverse only where there is abuse of discretion or manifest prejudice to the defendant, and where the evidence would have affected the outcome of the case. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 519 U.S. 898 (1996); Vasquez, 287 Ark. at 473, 701 S.W.2d at 360.