ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR03-797

February 25, 2004

DAVID CORDELL and AN APPEAL FROM SALINE

RANDALL CORDELL COUNTY CIRCUIT COURT

APPELLANTS [CR00-512-2; CR01-59-2]

V. HON. GARY ARNOLD, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

In this joint appeal, appellants are brothers: David and Randall Cordell. David was convicted of four counts of rape and Randy was convicted of three counts of third-degree carnal abuse. All charges stemmed from conduct related to the same victim, E.H. who was David's sister-in-law. Appellants argue that the State failed to prove that David raped the victim, because the State produced no evidence of force or intimidation; that the State failed to prove that Randall committed carnal abuse because the victim provided no time frame for those alleged incidents; and that the trial court erred when it excluded testimony regarding the victim's sexual conduct that took place after the alleged incidents that gave rise to this case. We affirm without reaching the merits of the first two arguments because they were not preserved for appeal. We affirm as to the third point.

Because we do not reach the sufficiency of the evidence supporting the convictions in this case, it is not necessary to recount all of the testimony offered to support those convictions. It is sufficient to note that at the time of the incidents alleged in this case, David was married to E.H.'s sister, Sharon. E. H. was born on October 17, 1984. She stayed with Sharon and David every other weekend and served as their babysitter. E.H. begin living with David and Sharon in 1999, after she completed the eighth grade, so that she could continue attending the school of her choice. E.H. was fourteen at that time. She lived with them until the summer of 2000, when Sharon separated from David. The incidents with David began before E.H. moved in with them, when E.H. was eleven years old and David was twenty-four years old. The incidents with Randy began when E.H. was fifteen years old and Randy was thirty-nine or forty years old.

After a joint trial, a jury convicted each appellant. David was convicted of four counts of rape and was sentenced to serve four seventeen-year sentences in the Arkansas Department of Correction, to run concurrently. Randall was convicted of three counts of third-degree carnal abuse and was sentenced to serve three four-year terms in the Arkansas Department of Correction, to run consecutively. This appeal followed.

I. Sufficiency of the Evidence Regarding the Rape Charges

David argues that the trial court erred in denying his motion for a directed verdict. He asserts that because the victim was fourteen years of age after the first alleged incident, the State was required to prove force or intimidation for the three remaining incidents and the State did not prove either.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). On appeal, we review the evidence in a light most favorable to the appellee, and affirm if substantial evidence supports the jury verdict; only evidence supporting the guilty verdict need be considered. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other with reasonable certainty beyond mere suspicion or conjecture. Id.

The offense of rape, as applicable to the instant case, is defined under Ark. Code Ann. § 5-14-103(a)(Supp. 2003), which provides:

A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person:

(A) By forcible compulsion; or

(B) Who is incapable of consent because he or she is physically helpless, mentally defective, or mentally incapacitated; or

(C)(I) Who is less than fourteen (14) years of age.

David concedes that because the first incident occurred when E.H. was less than fourteen years of age, the State was only required to show force or intimidation for those incidents that occurred when she was fourteen years of age or older. However, he asserts that the State failed to prove force or intimidation regarding the other three incidents.

We do not address the sufficiency of the evidence supporting the rape charges because at trial David did not challenge the element of forcible compulsion. At the close of the State's case, appellants made the following motion for a directed verdict:

I would like to make a motion for directed verdict based upon the fact that the State failed in its burden of proof, they haven't shown anything as far as gratification, which is one of the items that has to be proved under the Act and that would be on David Cordell and on Randall Cordell, I would also like to make a motion for directed verdict based upon insufficient evidence and that would be that the acts and descriptions stated by the alleged victim were insufficient in prov[ing] the elements of the crime as stated in the statute.

The trial court denied the motion. At the close of all of the evidence, appellants renewed their motion for a directed verdict as follows:

I would renew my motion for a directed verdict, both on Randall Cordell and David Cordell, based on lack of evidence given by the State. The only evidence given by the State was Sharon Cordell, who actually never saw anything and insinuated [that] acts occurred. And the only other thing was the vague testimony from the alleged victim in this case. That, coupled with the testimony by Randall Cordell that physically was impossible to occur. The State has failed to meet its burden of proof.

Thus, it is clear that David attempted to make a general motion for a directed verdict and then specifically noted only one element of the offense, that of sexual gratification. On appeal, David does not assert that the State failed to show sexual gratification; he argues solely that the State failed to show forcible compulsion. His motion "based upon insufficient evidence and that would be that acts and descriptions stated by the alleged victim were insufficient in prov[ing] the elements of the crime as stated in the statute" was a general motion that was not adequate to preserve for appeal a challenge to the sufficiency of the evidence. See Ark. R. Crim. P. 33(a) (providing that a motion for a directed verdict shall state the specific grounds therefore); Ark. R. Crim. P. 33(c) (providing that the failure to challenge the sufficiency of the evidence under Rule 33 constitutes a waiver of the issue on appeal); Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997)(holding the defendant's challenge to a motion for a directed verdict was not preserved where the defendant moved for a directed verdict "on all counts on the grounds of insufficient evidence"). Moreover, David has abandoned his argument that the State failed to prove sexual gratification because he offers no argument in this regard. Accordingly, we affirm as to the sufficiency of the evidence supporting David's charges of rape.

II. Sufficiency of the Evidence Regarding the Carnal Abuse Charges

Similarly, we also decline to address Randy's challenge to the sufficiency of the evidence supporting the third-degree carnal abuse charges because his argument was not properly preserved. He asserts that the trial court erred in denying his motion for a directed verdict because the State failed to prove a time frame regarding the incidents of carnal abuse. We hold that Randy's argument is not preserved for appeal because he did not specifically challenge the time frame of the offenses in his motion for a directed verdict.

In his directed verdict motion, Randy argued that "the acts and descriptions . . . were insufficient in prov[ing] the elements of the crime." He based his renewal on "lack of evidence given by the State." He further asserted in his renewal that testimony by the victim was vague and that it would have been physically impossible for him to have to committed the acts because he was impotent.

As with David's motion, Randy's original motion for a directed verdict was insufficient to preserve a challenge to the sufficiency of the evidence. See Ark. R. Crim. P. 33.1(a); Dixon, supra. Moreover, Randy's specific arguments that he raises on appeal, that he was physically incapable of committing the act and that the victim's testimony was vague, were not raised until his motion for renewal. Arkansas Rule of Criminal Procedure 33.1(a) provides that in a jury trial, if a motion for directed verdict is to be made, it shall be first be made at the close of the State's evidence. Further, Rule 33.1 provides that the first motion must state the specific reasons therefor. Rule 33.1 (c) provides that a defendant waives any question pertaining to the sufficiency of the evidence supporting the verdict if he fails to challenge the sufficiency of the evidence at the times and in the manner as required in 33.1(a). This is so because a defendant waives the first motion made when he presents a case. Rudd v. State, 308 Ark 401, 825 S.W.2d 565 (1992).

Thus, we do not address Randy's arguments because he did not state the specific grounds for challenging the sufficiency of the evidence in his original motion. Further, the only specific argument he made in his renewal was with regard to his physical incapacity, and he does not raise that issue on appeal. Finally, although he stated in his renewal that the victim's testimony was vague, he did not specify with respect to which elements of the charges that her testimony was vague. This is simply another way of generally arguing that the evidence is insufficient, which does not preserve his argument for appeal. Therefore, we summarily affirm Randy's third-degree carnal abuse convictions.

III. Application of the Rape-Shield Law

The only issue that we reach on the merits is whether the trial court erred in finding that the rape-shield law precluded testimony that appellants sought to have admitted. The testimony related to an incident that took place on October 17, 1999, on E.H.'s fifteenth birthday. For her birthday, she was allowed to have a friend spend the night. She chose Danny Hughes, who had been her long-time best friend. Hughes was seventeen at the time. Without recounting all of the details, it is sufficient to state that David fondled E.H. in front of Hughes and goaded Hughes to have sex with E.H., while David watched. Both E.H. and Hughes testified that they never thereafter discussed the incident. Both also stated that they saw each other after this incident, in 1999, at a wedding. In addition, Hughes stated that he visited David's home once or twice after the incident.

At trial, appellants sought to admit testimony from a witness that he saw E.H. and Hughes in bed together after the foregoing incident. At issue was whether the testimony was precluded by Arkansas' Rape Shield statute at Arkansas Code Annotated § 16-42-101 (Repl. 1997). Generally, this statute prohibits evidence of a victim's prior sexual conduct, unless upon written motion and hearing, the relevance of the proffered evidence is established and its probative value outweighs its prejudicial effect.

Appellants argued below that the rape-shield statute did not prohibit the testimony because the statute only precludes testimony concerning sexual acts that occur prior to the conduct leading to a criminal charge, whereas the conduct to which the witness would have testified occurred after some of the incidents that led to the charges in this case. They also asserted that the testimony was relevant to attack the credibility of E.H. and Hughes. The State responded that appellants had not complied with the notice requirement of the rape-shield statue and that evidence of a subsequent sexual act would have no bearing on the testimony regarding the above incident. The trial court denied the motion on the grounds that appellants had not complied with the notice requirements of the rape-shield statute; that the prejudicial effect of the proposed testimony would outweigh its probative value; that the testimony would not be relevant; and that the testimony would not impeach the witnesses' credibility.

The determination of whether evidence is admissible under the rape-shield statute lies within the discretion of the trial court. Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993). We will not reverse a trial court's finding on this issue unless it is clearly erroneous. Id. We hold that the trial court's decision was not clearly erroneous because appellants failed to comply with the requirements of the rape-shield law. Despite appellants' argument, for purposes of the rape-shield statute, prior sexual conduct encompasses all sexual conduct that occurs prior to the trial, including conduct that occurs after the rape. Slater v. State, 310 Ark. 73, 832 S.W.2d 846 (1992). Therefore, in order for appellants to request that the testimony be admitted, they were required under the statute to file a written motion so that an in-camera hearing could be held. Ark. Code Ann. § 16-42-101. Their failure to do so waives their rights to challenge application of the rape-shield statute on appeal. Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994). Because we hold that appellants did not comply with the rape-shield statute, we need not reach the issue of whether the testimony was admissible to impeach the witnesses' credibility.

Affirmed.

Robbins and Neal, JJ., agree.