ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
  

DIVISION IV

JOHNATHAN HOLLISTER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA 03-447

October 22, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. JJD 02-2150]

HONORABLE RITA GRUBER,

JUDGE

AFFIRMED

Terry Crabtree, Judge

The appellant, Jonathan Hollister, was charged in a delinquency petition with the rape of three-year-old twins TP1 and TP2. In the petition, it was alleged that the offenses occurred "over a period of time, from on or about January 1, 2001, through on or about January 1, 2002." After trial, he was adjudged a delinquent juvenile based on a finding that he had committed the offense of first-degree sexual abuse only as to TP1.1 For reversal, appellant contends that there is insufficient evidence to support the finding of guilt. We disagree and affirm.

In resolving the question of the sufficiency of the evidence in a juvenile delinquency case, the standard of review is the same as in a criminal case. Pack v. State, 73 Ark. App. 123, 41

S.W.3d 409 (2001). We will affirm the finding of guilt if there is substantial evidence to support it, when viewed in the light most favorable to the State. Id. Substantial evidence is that which is of sufficient force and character to compel a conclusion one way or the other without resorting to speculation or conjecture. Simmons v. State, 80 Ark. App. 426, 97 S.W.3d 421 (2003). In determining whether there is substantial evidence, we consider only that evidence tending to support the verdict. Pack v. State, supra. We do not weigh the evidence presented at trial, as that is a matter for the fact-finder. Id. It is the duty of the trier of fact, the trial judge in this instance, to resolve any contradictions, conflicts, and inconsistencies in a witness's testimony and to determine the credibility of witnesses. B.J. v. State, 56 Ark. App. 35, 937 S.W.2d 675 (1997).

We limit our discussion of the evidence to that which mostly applies to TP1, since the finding of guilt involved only her. At trial, the twins' paternal grandmother, Laverne Price, testified that she took the twins to Children's Hospital for examination after she noticed bleeding in their vaginal areas while giving them a bath. Dr. Tammy Hooker examined the children and said that she was given a history by TP1 that a boy had stuck his "thingy" in her private area. Although the child claimed that her bottom hurt, the doctor detected no physical findings of abuse, but she testified that she, nevertheless, determined that the exam was consistent with the history she had been given. Dr. Hooker explained that it was not uncommon for there to be no physical findings, even under circumstances where a thirteen-year-old boy had placed his penis inside the labia majora and "rubbed up and down, but without full penetration." She said that minor tears could heal quickly. Dr. Hooker added that, had such an activity taken place a year before, she would expect for any tears to have healed.

Ray Hollister, appellant's fourteen-year-old brother, testified on behalf of the State. When the allegations were being investigated, Ray had been interviewed by Detective Michael Gibbons and had given a statement after he was placed under oath by a deputy prosecutor. In his statement, Ray said that he had witnessed appellant lying on top of TP1 making a thrusting motion. He stated that the child's legs were spread apart and that both of their underwear had been pulled down. In his testimony at trial, Ray said that his previous statement was not true. He testified that the detective had scared him by saying that he could face ten to twenty years in prison, or life. The court permitted Ray's statement to be introduced into evidence based on the decisions in Jones v. State, 283 Ark. 308, 675 S.W.2d 825 (1984), and Slavens v. State, 1 Ark. App. 245, 614 S.W.2d 529 (1981), which hold that such statements, given under oath, are admissible under Ark. R. Evid. 801(d)(1) as substantive evidence.

Detective Gibbons was called as a witness by the State. He testified that he had not threatened Ray in any way and that Ray was not a suspect at the time he was being interviewed. Martha Hollister, Ray and appellant's grandmother, had taken Ray to the police station. She was present during the initial stages of the interview, but she had to leave for work and was not there when Ray gave his formal statement. She said that Detective Gibbons told Ray that, if he did not tell the truth, he could get ten, to fifteen, or twenty years down in Varner.

After hearing the evidence, the trial court took the case under advisement. Ruling from the bench a few days later, the court dismissed the rape charge involving TP2, but found appellant to be a delinquent juvenile based on "the lesser included charge of Sexual Abuse First Degree, C felony, which is 5-14-108."2 By a disposition order3 dated February 6, 2003, appellant was committed to the Department of Youth Services.

In his directed-verdict motions, appellant argued that reasonable doubt had been created because Ray had changed his testimony and that his statement was not worthy of belief. Appellant makes that same argument on appeal, citing Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980), and Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). In Kitchen v. State, the court stated:

The matters emphasized by appellant bear upon the credibility of the witnesses. This was a matter for the jury's consideration. This court is bound by the jury's conclusion on the credibility of the witnesses. It does not matter that a witness is uncorroborated and that testimony to impeach his has been introduced. We have no right to disregard the testimony of a witness after the jury has given it full credence, at least where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon.

Kitchen v. State, 271 Ark. at 19, 607 S.W.2d at 356 (citations omitted). Appellant contends that Ray's testimony was "so clearly unbelievable that reasonable minds could not differ thereon." We disagree that Ray's testimony falls into that class. Without a doubt, Ray's testimony at trial and his overall credibility was impugned by his former statement. In this instance, the previous statement was admitted as substantive evidence, and thus could be considered by the trial court for the truth of the matters asserted therein. It was then for the trial court to decide whether Ray had told the truth in his statement, or whether he was being truthful in court. Resolving conflicts and inconsistencies in a witness's testimony is a rather ordinary task for a trier of fact to undertake, and this situation is much like those found in Kitchen and Barnes, where the court refused to disregard the credibility determinations made by the triers-of-fact. We also will not disturb the trial court's assessment here and hold that there is substantial evidence to support the delinquency finding.

Affirmed.

Vaught and Baker, JJ., agree.

1 We note that the statute setting out this offense, Ark. Code Ann. § 5-14-108 (Repl. 1997), was repealed by Act 1738 of 2001, effective August 13, 2001. No argument has been made in this appeal that the statute had been repealed at the time the offense occurred. See Cousins v. State, ___ Ark. App. ___, ___ S.W.2d ___ (2003). We further note that, even had appellant raised this argument, the record contains no definitive evidence that the offense occurred after August 13, 2001.

2 Appellant does not challenge the trial court's ruling that first-degree sexual abuse was a lesser included offense of rape; therefore, we express no opinion in the matter.

3 Although the trial court referred to Arkansas Code Annotated section 5-14-108 in its ruling from the bench, the disposition order references Arkansas Code Annotated section 5-14-124 as the statute on first-degree sexual abuse. No argument has been presented on appeal as to this discrepancy. It would appear that the order contains a clerical error, and if so, it may be corrected by the trial court to make the record "speak the truth." State v. Dawson, 343 Ark. 683, 38 S.W.3d319 (2001).