ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CACR01-1342

September 10, 2003

BENNY HULSEY AN APPEAL FROM BENTON

APPELLANT COUNTY CIRCUIT COURT

[CR00-1178-1]

V. HON. TOMMY J. KEITH, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

This appeal arises from a Benton County criminal conviction of sexual abuse in the first degree and indecent exposure. Previously, we remanded this case for rebriefing, Hulsey v. State, CACR 01-1342 (February 5, 2003). Upon rebriefing, appellant argues (1) that there was insufficient evidence to convict him of sexual abuse in the first degree; (2) that the trial court erred in allowing the jury to see a "blacked-out" video-tape transcript instead of a "cut-and-pasted" transcript; and (3) that the trial court erred in allowing the State to redact from the tape and transcript of the custodial statement appellant's agreement to take a lie detector test to demonstrate his innocence. We affirm.

According to the testimony of six-year old N.R., she was playing in her uncle's backyard on August 7, 2000, when appellant approached her and asked her if she wanted any candy. She stated in court that appellant led her to his apartment, where they both went inside. In the hallway, appellant unzipped his pants and moved close enough that it was clear to N.R. that "he was trying to put his private in [her] mouth." She further testified that appellant put his hand on the back of her head and that his penis touched the area of her face just to the left of her mouth. Appellant denied this account of events in a taped police interview.

Prior to the trial in May 2001, counsel for appellant filed a motion in limine to exclude certain sections of appellant's videotaped statement to the police. The State agreed to edit out those sections that violated the Arkansas Rules of Evidence. In the course of this redaction, the State also edited out a statement made by appellant during the custodial interview, indicating his willingness to take a lie detector test. In addition, the State blocked out the corresponding segments in the video transcript with a marker. During trial, a member of the jury complained about the poor audio quality of the videotape. The trial court allowed the State to distribute marked up copies of the video transcript, after appellant's objection, and issued a limiting instruction to the jury that they were not to take the transcript as evidence, and to resolve any conflict between the transcript and what they heard on the videotape in favor of the videotape. Specifically, the trial court instructed the jury that the blacked-out portions of the transcript referred to matters not relevant to the proceeding and that the jury was not to speculate about what might lie behind the marks.

After hearing the State's evidence, appellant moved for directed verdict on the specific grounds that the State failed to prove one of the elements of sexual abuse in the first degree, namely that of sexual contact. The trial court denied the motion. Subsequently, counsel for appellant did not call any witnesses and renewed the motion. The trial court denied it again.1 The jury convicted appellant of sexual abuse in the first degree and indecent exposure and sentenced him to concurrent prison terms. This appeal followed.

Sufficiency of the Evidence

Appellant first argues, based on his motion for a directed verdict below, that there was insufficient evidence to convict him of sexual abuse in the first degree because the victim's version of the events did not meet the definition of sexual contact. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Laster v. State, 76 Ark. App. 324, 64 S.W.3d 800 (2002). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Evidence is substantial if it is of sufficient force that it would compel a conclusion without speculation or conjecture. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). We review the evidence in the light most favorable to the State, andonly consider the testimony that tends to support the conviction. Conner v. State, 75 Ark. App. 418, 58 S.W.3d 865 (2001). Notably for the present case, the testimony of a sexual-abuse victim need not be corroborated. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991). This is so particularly where the victim was able to clearly describe and indicate where she was touched. Id.

A person commits sexual abuse in the first degree, inter alia, if "being 18 years old or older, he engages in sexual contact with a person not his spouse who is less than 14 years old." Ark. Code Ann. § 5-14-108(a)(4) (Repl. 1997).2 Our Code defines "sexual contact" as "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) (Repl. 1997) (emphasis provided). The State does not have to offer direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act. Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995).

Appellant essentially argues that his conduct did not fall within the scope of the language in Ark. Code Ann. § 5-14-101(8) because he did not touch the sex organs, buttocks, or the breasts of the victim. We disagree and hold that the plain reading of the statutory definition of sexual contact indeed does include appellant's conduct. When construing a statute, we first look at the plain language of the statute and give the words their plain and ordinary meaning. Bush v. State, 338 Ark. 772, 2 S.W.3d 761 (1999). Construction occurs in accordance with their reasonable and commonly accepted meaning, and in the context of the specific acts described in section 5-14-101(8). McGalliard v. State, supra. Section 5-14-101(8) defines sexual contact as any sexually gratifying act involving the touching of sex organs, buttocks, or anus of a person. The statute does not define such contact as the touching of the victim's sex organs only. If we were to follow appellant's proposed reading of the statute, we would arrive at the absurd legal proposition that our Code proscribed the touching of a victim's genitals, but not the situation where an abuser forces a victim to touch his or her genitals. Case law has long established that we do not interpret criminal statutes so strictly as to reach absurd conclusions contrary to legislative intent. Moses v. State, 72 Ark. App. 357, 39 S.W.3d 459 (2001) (citing Jackson v. State, 336 Ark. 530, 986 S.W.2d 405 (1999)).

Here, appellant forced the child victim's head close to his penis so that his penis touched the victim's face-in other words, he forced the victim to touch his penis with her face, close to her mouth. The victim was able to clearly identify the action involved and the areas of her body as well as the areas of appellant's body thus touched. In that context, it bears well to remember that the Arkansas Supreme Court has held that a defendant's making the victim touch his penis is sufficient to meet the definition of an act of sexual gratification. See Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997). Therefore, we hold that there was sufficient evidence to establish that appellant had engaged in sexual contact with the victim, that there was touching of sex organs, and thus, that the conduct in question falls under the scope of sexual abuse in the first degree.

Redactions by Way of Black Marks

Appellant next argues that the trial court erred by allowing a transcript of his videotaped statement to be published to the jury where certain portions had been "blacked-out" rather than cut and pasted. As it appears from the abstract before us, appellant argues for the first time on appeal that the trial court ought to have held an in-chamber conference before allowing the parties to agree on the appearance of the transcript, and that allowing the jurors to see the blacked-out version of the transcript somehow might have aroused the jurors' curiosity. However, appellant did not request an in-chamber conference, even though he did object to the marked up transcript in a bench conference.

We do not consider arguments that are raised for the first time on appeal. Slater v. State, 76 Ark. App. 365, 65 S.W.3d 481 (2002). Therefore, we find no error of the trial court in so far as the court did not hold an in-chamber conference, because appellant did not request one at trial. Furthermore, in order to demonstrate reversible error, appellant would have to demonstrate prejudice. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). However, appellant does not point us to any place in the record to support the claim that unsightly black-outs and potential juror curiosity about the lines thus obscured actually caused him prejudice. This is so particularly in light of the fact that the trial court issued a limiting instruction to the jury concerning the blacked-out portions of the transcript and appellant nowhere appears to argue that this curing instruction failed its intended effect. Mistrials are not warranted where a limited instruction to the jury cures any prejudice. Lawson v. State, 74 Ark. App. 257, 47 S.W.3d 294 (2001). Therefore, we affirm on this point as well.

Redaction of Statement Indicating Willingness to Take Lie Detector Test

Appellant finally argues that the trial court erred in allowing the State to redact from the tape and transcript of the custodial statement appellant's "agreement" to take a lie detector test to demonstrate his innocence, respectively to demonstrate his willingness to cooperate. We do not reverse a trial court's ruling on the admission of evidence in the absence of an abuse of discretion. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). In his argument, appellant refers to Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990). Our supreme court held in that case that-while neither the results of a lie detector examination nor testimony that indirectly or inferentially apprises a jury of the results of such a test are admissible-the mere fact that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised. However, the same court also declined to adopt the view expressed in certain other jurisdictions that an offer to take a polygraph examination can be admissible to show consciousness of innocence. Wingfield v. State, supra. Specifically, the supreme court declared that evidence of willingness or reluctance to become the subject of a lie detector test is prejudicial and inadmissible to prove consciousness of innocence or guilt. Id. Subsequently, the supreme court also held that its opinion in Wingfield v. State only prevents a defendant from bolstering his own credibility but does not infringe on his right to present a defense. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). In the present case, we hold that the trial court did not abuse its discretion in denying admission of appellant's statement indicating a willingness to undergo a lie detector test. Such evidence is inadmissible in Arkansas courts.

Affirmed.

Gladwin and Bird, JJ., agree.

1 Appellant also moved for directed verdict on the basis of a double jeopardy claim, and renewed the motion consequently, but apparently chose not to argue that point on appeal.

2 Ark. Code Ann. § 5-14-108 was repealed by the 2001 General Assembly. 2001 Ark. Acts 1738, § 10. However, we must apply that section because the purported crime occurred on August 7, 2000, prior to Act 1738's effective date on August 13, 2001.