ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

JAMES FINNEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-1272

September 17, 2003

APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT

[NO. CR2001-247-1]

HON. JOHN W. COLE,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

A Hot Spring County jury found James Finney guilty of raping a ten-year-old girl, and he was sentenced to forty years' imprisonment. Appellant raises two points on appeal: (1) that the trial court erred in not suppressing his third custodial statement, and (2) that the trial court erred in denying his directed-verdict motion because there was insufficient evidence of penetration. We affirm.

At the suppression hearing, Officer Chad Almond testified that he and Officer Linda Scrimshire interviewed appellant following his arrest on October 1, 2001. Officer Almond stated that appellant was fully advised of his rights and that appellant signed a waiver of rights form. Appellant then gave a recorded statement wherein he denied any wrongdoing. Officer Almond testified that just minutes after the interview had ended, appellant asked to speak to him in private, at which point appellant admitted that he had engaged in oral sex with the minor. According to Officer Almond, appellant explained that he had not wanted to admit what he had done in front of the female officer who had been present during the interview. Officer Almond instructed appellant to rest for a few days and stated that they would speak again later. Officer Almond stated that he did not interview appellant again right away because he was working on his case file.

According to his testimony at the hearing, Officer Almond conducted another interview on October 4, 2001, that was recorded. Officer Almond testified that he asked appellant whether he remembered his rights and enumerated them again and that appellant stated that he remembered and understood his rights but still wanted to talk. Officer Almond did not have him sign another waiver of rights form. Appellant then repeated his admission that he had engaged in oral sex with the victim and specifically described his having stuck his tongue in the victim a depth of three-quarters of an inch. Officer Almond testified that he was not aware of whether appellant was brought before a judicial officer between the time he was arrested and the time of the statement he gave on October 4. He stated that appellant had been transported to either Grant or Garland County but that he was obviously returned to Hot Spring County by October 4. Almond stated that, to his knowledge, appellant was not present at the probable cause hearing.

Following the suppression hearing, defense counsel made the following motion:

Your Honor, at this time we'd move that his statement be suppressed because the
interview was cut off. That second statement that was after the interview with Mr.
Almond was made, not transcribed, not taped. So all we have to depend on is
Detective Almond. And the second statement he was not fully advised of his
rights. He signed no rights form on that second one. He was held in detention the
whole time. He was not brought before a judicial officer during the probable cause
hearing. He was not allowed to contact a lawyer due to him being in jail under
detention.

The trial court denied appellant's motion to suppress and found that all of the statements were admissible. The court reasoned that appellant was fully advised of his rights at the initial interview where he gave a statement denying any wrongdoing; that appellant requested to make the second statement wherein he admitted guilt; and that appellant was substantially advised of his rights at the time he gave the third statement.

At trial, Paula Finney, appellant's ex-wife and the victim's grandmother, testified that she is the legal guardian of the victim, H.J., and H.J.'s younger sister, B.B. She stated that she was divorced from appellant but that he had come back to live with her during the time the incident occurred. Ms. Finney testified that she had been working nights and that appellant had stayed with the girls. She said that some time in late September 2001, H.J. had come out of the bathroom complaining that her bottom was bleeding. Ms. Finney, a nurse for twenty-two years, stated that she examined the victim and discovered what looked like a friction burn just inside her labia. She questioned the victim as to whether anyone had done anything to her. Ms. Finney stated that the victim reluctantly told her that appellant was responsible for her injury.

H.J. testified that she knew the difference between a good touch and a bad touch and that appellant, whom she used to refer to as "Pawpaw," had done bad things to her that he should not have done. H.J. stated that on one night while her grandmother was at work, appellant moved from the couch where he had been sitting to the floor where she was sitting doing her homework. She testified that appellant undressed her and got on top of her and that appellant was naked. H.J. stated that she was not sure what appellant did to her but that he put his hand on her private part. When questioned specifically about whether appellant's hands were on the inside or the outside of her private part, H.J. said, "I think inside." The victim testified that she thought appellant tried to do something with his private part and that she told him to stop because it hurt. H.J. testified that appellant told her, "It's going to be all right." She stated that appellant rubbed "it" against her for what seemed like a long time and that it hurt.

Dr. Jerry Jones, an expert in the field of the study of sexual abuse of children, testified that his findings were indeterminate. He explained that, even though the victim had a long, narrow hymen that could be indicative of sexual abuse, it was also commonly associated with obesity. Dr. Jones said that the victim's obesity left him unable to assess her results. In addition, Dr. Jones testified that, although he did not find a friction burnas Ms. Finney had described, such an injury would have had time to heal by the time he examined H.J.

The victim's younger sister also testified. B.B. testified that she was awakened by a noise one night and that she saw appellant on top of H.J. in the living room. She stated that appellant was rubbing up and down and that H.J. was asking appellant to get off of her. B.B. also overheard appellant telling H.J. not to tell their grandmother.

At the close of the State's case, appellant's counsel made the following motion:

Your Honor, we make a motion for a directed verdict based on the fact that there
was insufficient evidence provided by the victim or the corroborating witness that
anything happened or any of the lesser included offenses. I believe the victim
testified that something happened but she couldn't tell you when, how many times,
or what.

In renewing his motion, appellant's counsel stated:

Your Honor, I renew my motion for a directed verdict for insufficient evidence
provided by the victim and the corroborating witness. They didn't know when
it happened or couldn't give a good explanation of what happened for the rape
or any other lesser included offenses.

The trial court denied appellant's motions.

Preservation of appellant's right against double jeopardy requires that we consider his challenge to the sufficiency of the evidence before we consider his suppression argument. See Grillot v. State, ___ Ark. ___, 107 S.W.3d 136 (2003).

A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. See Johnson v. State, 80 Ark. App. 79, 94 S.W.3d 344 (2002). The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Pickens v. State, 347 Ark. 904, 69 S.W.3d 10 (2002). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or the other and pass beyond suspicion or conjecture. Id. On appeal, the evidence is viewed in the light most favorable to the State, and only evidence that supports the verdict is considered. Id.

Appellant argues that the trial court erred in denying his motion for a directed verdict because there was no evidence from him, H.J., or B.B., as to what was penetrated and because Dr. Jones's findings were indeterminate.

Arkansas Code Annotated section 5-14-103(a)(1)(C)(i) (Supp. 2001) provides that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. "Sexual intercourse" has been defined as "penetration, however slight, of the labia majora by a penis." Ark. Code Ann. § 5-14-101(9) (Supp. 2001). "Deviate sexual activity" includes "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)(B) (Supp. 2001). Penetration can be shown by circumstantial evidence, and if that evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that is sufficient. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002).

To the extent that appellant's argument on penetration is preserved, we note that Ms. Finney, who is an experienced nurse, testified that H.J. had a friction burn just inside her labia majora. The jury was entitled to believe that Ms. Finney's testimony, in addition to the other evidence introduced at trial, established the element of penetration. We affirm on this point.

Next, appellant relies on Ark. R. Crim. P. 8.1 (2001) and Ark. Code Ann. § 16-85-201(a) (1987) in arguing that his statement should have been suppressed because, although a judicial officer was available, he was held in jail for the purpose of obtaining another incriminating statement. In addition, appellant seemingly asserts that his third statement, given three days after the initial statement, should have been suppressed because he was not fully advised of his rights.

In his pretrial motion to suppress, appellant maintained that he was not promptly taken before a judicial officer for a probable cause determination. Likewise, at the suppression hearing, appellant argued that he was not brought before a judicial officer during the probable cause hearing. On appeal to this court, appellant cites Ark. Code Ann. § 16-85-201(a), which provides in relevant part that where an arrest is made without a warrant, the defendant shall be forthwith taken before the most convenient magistrate and the grounds on which the arrest was made shall be stated to the magistrate. Appellant also relies on Ark. R. Crim. P. 8.1, which provides that an arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.

Appellant is raising this argument for the first time on appeal. We note that it is not apparent from the abstract or record when appellant's first appearance occurred, but we point out that the supreme court has never adopted a specific time limit for measuring Rule 8.1 violations. See Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000). Prior to this appeal, appellant was essentially making an argument under Ark. R. Crim. P. 4.1(e), which provides in relevant part:

A person arrested without a warrant shall not be held in custody unless a judicial

officer determines, from affidavit, recorded testimony, or other information, that there

There was no violation of Ark. R. Crim. P. 4.1(e). Although it was not abstracted, the record contains an affidavit wherein Officer Almond set forth facts and evidence alleging probable cause. At the bottom of the affidavit, the trial judge found that probable cause existed and set bond with certain conditions. The judge signed the affidavit on October 2, 2001.

Although we do not have to address appellant's Rule 8.1 argument, we note that, even assuming there was a violation, appellant did not meet his burden of proving each prong of the test set forth in Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), that: (1) the delay was unnecessary, (2) the resulting evidence was prejudicial, and (3) the resulting evidence was reasonably related to the delay.

Turning to the second part of appellant's suppression argument, appellant simply states that he "was not fully advised of his rights before giving the next statement three days later." His argument is more of a statement with no citation to authority. Accordingly, we need not address this issue other than to point out that appellant does not contend that the third statement was not knowingly and voluntarily made. See Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002); see also Barnes v. State, 281 Ark. 489, 665 S.W.2d 263 (1984).

Affirmed.

Pittman and Baker, JJ., agree.