Salus Populi Suprema Lex Esto

About MoreLaw
Contact MoreLaw

Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 12-05-2018

Case Style:


Case Number: 2018 Ark. App. 572



Plaintiff's Attorney: Kent G. Holt, Ass’t Att’y Gen.

Defendant's Attorney: Charles D. Hancock


Charles Dwight King, Jr., was convicted by a Boone County Circuit Court jury of
raping AF (born July 16, 2009). On appeal, Charles challenges the sufficiency of the evidence
supporting the rape conviction and argues that the circuit court abused its discretion in
excluding an order of appointment of emergency temporary guardian of AF. We affirm.
In September 2016, AF was seven years old and lived with her grandmother, Elaine
Files, in Omaha, Arkansas.1 Elaine and AF lived in a one-bathroom trailer that was

1Elaine testified that her son, Robert Files, is AF’s father and that he has seven children with different women. According to Elaine, Robert is not involved with AF’s care. Sarah Gregory is AF’s mother. In 2013, the Arkansas Department of Human Services removed AF from the custody of her mother, and in 2014, Elaine was awarded permanent legal custody of AF.


connected by a porch to an adjacent trailer.2 Charles lived in the adjacent trailer. Elaine
testified that she was sixty-three years old and had known Charles, who was fifty-four years
old at the time of trial, since she was in her thirties when they “went together.”
Elaine testified that AF was often in and out of Charles’s trailer. Elaine stated that
there was a period of a few months when she was remodeling the bathroom in her trailer,
and she and AF used the bathroom in Charles’s trailer. Elaine further testified that AF was
never alone with Charles at night except for on one occasion near the end of September
2016 when Elaine left AF in Charles’s care because Elaine stayed the night at the hospital
with Brittany, who was pregnant, after Brittany had been in a car accident.
On October 11, 2016, Elaine was contacted by someone at AF’s school and informed
that AF had been acting inappropriately. When Elaine asked AF about her behavior and if
anyone had touched her inappropriately, AF said yes and identified Charles. Elaine called
Charles and told him what AF had said. Elaine said that Charles denied the allegations, but
she told him she believed AF and not to come home. Elaine then called local law
enforcement, and an investigation followed.
Melanie Sonnette Panell testified that she lives in Springfield, Missouri, with her
husband Jarrod Panell. Sonnette has three children with Robert, who have been adopted by
Jarrod. Elaine and AF lived with Sonnette and her family in Springfield from 2006 to 2009,
and AF lived with Sonnette for a few months in 2015. After AF returned to Elaine in 2015,
Sonnette filed for guardianship of AF based on allegations that Elaine and AF were living in
a run-down trailer that did not have water or electricity and that Charles is an alcoholic.

2Elaine testified that Robert and Brittany Allen were also living with her at this time.


Sonnette testified that a decree denying her request for guardianship was entered in August
2016. After the 2016 decree was entered, Sonnette testified that there was no communication
between Elaine and Sonnette or between Sonnette and AF.
Sonnette also testified that Brittany and Robert told her about the allegations that
Charles had sexually abused AF, and Sonnette immediately filed for emergency temporary
guardianship of AF, which was granted on October 24, 2016. Sonnette has had custody of
AF since that time.3
The parties stipulated to the body-camera recording of Scott Hornaday, a Boone
County sheriff’s deputy, in lieu of his testimony. Scott was the officer who responded to
Elaine’s call. Elaine reported to Scott that AF told her Charles had been touching her, that
he had her touch him, and that it had happened several times. Scott directed Elaine and AF
to the sheriff’s department.
Ryan Watson, corporal investigator for the Boone County Sheriff’s Office, testified
that he met with Elaine and AF at the sheriff’s office where Elaine reported that Charles had
licked AF’s “privates.” Ryan arranged for Elaine and AF to be seen at Grandma’s House
Children’s Advocacy Center (Grandma’s House) where Ryan observed AF’s interview.
Thereafter, Ryan sought to interview Charles but could not locate him. Ryan testified that his
department actively searched for Charles but was unable to locate him until October 25,
2016. When Charles was brought in for questioning, Charles denied the charges against him
and claimed that Elaine had coached AF to make the sexual-abuse allegations. Nevertheless,
Ryan believed that he had probable cause to arrest Charles and did arrest him.

3Sonnette received permanent guardianship of AF in January 2017.


AF was eight years old when she testified at trial. She stated that things would happen
with Charles in his trailer when Elaine was not there or when she was taking a nap, using the
computer, or watching TV. AF testified that the night Elaine stayed at the hospital with
Brittany, she (AF) stayed the night in Charles’s bed but that nothing happened. However,
she said on other occasions, Charles touched her where she went to the bathroom with his
mouth and hand. She said that he rubbed her there, it hurt, and she could not go to the
bathroom later. She said that it happened at bath time and that it happened more than once.
AF further testified that Charles got into the bathtub with her and made her wash and suck
his penis. AF said that on other occasions, Charles kissed her on the mouth, licked her
nipples, and put his penis in her butt.
Bryttany Jones, a forensic interviewer at Grandma’s House, testified that AF
disclosed multiple incidents and multiple forms of maltreatment of a sexual nature. Bryttany
also stated that there were things that AF said Charles did to her, but she later retracted
those statements.
Jacquelyn Cheek, a registered nurse, performed a head-to-toe physical examination of
AF at Grandma’s House on October 11, 2016. Jacquelyn testified that AF’s exam was
normal. However, she explained that physical findings of sexual assault are discovered in less
than ten percent of all cases because injuries that may have occurred usually heal before a
child reports a rape. Jacquelyn also stated that just because she marked the box on her report
that sexual-assault findings were absent, that did not mean that sexual abuse did not happen
to AF.


The jury convicted Charles of rape and sentenced him to forty years’ imprisonment.
This appeal followed.
Charles’s first point on appeal is a challenge to the sufficiency of the evidence
supporting the rape conviction. Our standard of review for a sufficiency challenge is well
settled. We treat a motion for directed verdict as a challenge to the sufficiency of the
evidence. Price v. State, 2010 Ark. App. 111, at 8, 377 S.W.3d 324, 330 (citations omitted). In
reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light
most favorable to the State and consider only the evidence that supports the verdict. Id., 377
S.W.3d at 330–31. We affirm a conviction if substantial evidence exists to support it. Id., 377
S.W.3d at 331. Substantial evidence is that which is of sufficient force and character that it
will, with reasonable certainty, compel a conclusion one way or the other without resorting
to speculation or conjecture. Id., 377 S.W.3d at 331.
On appeal, Charles argues that the circuit court erred in denying his motions for
directed verdict because
[t]here was a dearth of any physical connection supporting the alleged victim’s claims. There were no forensic findings, such as DNA, supporting the alleged victim’s claims. The only uncontested evidence at . . . trial was that the alleged victim was under the age of fourteen. There was a motive for the custodial family member to have contacted the authorities as the family member was in a heated custodial battle with [AF’s] grandmother, Elaine Files, and this family member successfully challenged Elaine Files for the custody of [AF] after the rape allegations against [Charles] were lodged . . . . The alleged victim’s testimony in this case is insufficient to prove beyond a reasonable doubt that [Charles] had sexual intercourse or deviate sexual activity with [AF].

Charles’s motions for directed verdict at trial, however, were much more limited in scope.
He argued below that the State “failed to present evidence that would establish a prima facie
case that there has been penetration of the minor child” and that the only evidence of


deviant sexual activity was AF’s inconsistent testimony as to whether Charles put his penis in
her butt. A party cannot enlarge or change the grounds for an objection or motion on appeal
but is bound by the scope and nature of the arguments made at trial. Daniels v. State, 2018
Ark. App. 334, at 5–6, 551 S.W.3d 428, 432. Therefore, we will address only those
sufficiency arguments that Charles raised at trial in his motions for directed verdict;
specifically, that there was no evidence of penetration and that AF’s inconsistent testimony is
insufficient to support deviate sexual activity.
“A person commits rape if he or she engages in sexual intercourse or deviate sexual
activity with another person: who is less than fourteen (14) years of age.” Ark. Code Ann.
§ 5-14-103(a)(3)(A) (Supp. 2017). The definition of “deviate sexual activity” is any act of
sexual gratification involving (1) the penetration, however slight, of the anus or mouth of a
person by the penis of another person, or (2) the penetration, however slight, of the labia
majora or anus of a person by any body member or foreign instrument manipulated by
another person. Ark. Code Ann. § 5-14-101(1)(A), (B).
Based on this law, we hold that there is substantial evidence to support Charles’s rape
conviction. AF testified that when she was seven years old, Charles put his penis in her butt
and that he forced her to suck on his penis while they were in the bathtub. This testimony
meets the definition of “deviate sexual activity” and the crime of rape. Ark. Code Ann. §§ 5
14-101(1)(A), (B) and -103(a)(3)(A). Our supreme court has made it clear that evidence from
a witness who testifies to what he or she saw, heard, or experienced is direct evidence. Hanlin
v. State, 356 Ark. 516, 525, 157 S.W.3d 181, 187 (2004). With regard to a rape conviction, the
testimony of a rape victim, standing by itself, constitutes sufficient evidence to support a


conviction. Id., 157 S.W.3d at 187 (citing Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848
(1994)); see also Price v. State, 2010 Ark. App. 111, at 8, 377 S.W.3d 324, 331 (holding that the
uncorroborated testimony of a rape victim alone is sufficient to sustain a conviction) (citing
Ward v. State, 370 Ark. 398, 260 S.W.3d 292 (2007); Butler v. State, 349 Ark. 252, 82 S.W.3d
152 (2002); Hayes v. State, 2009 Ark. App. 133; Chrobak v. State, 75 Ark. App. 281, 58 S.W.3d
387 (2001)). Contrary to Charles’s argument, AF’s testimony alone is substantial evidence to
support his rape conviction.
Charles argues that AF lacks credibility because she had a motive to lie about the
sexual abuse so she could escape “a life of squalor” in a “dilapidated trailer park” with Elaine
and instead live with Sonnette. The jury was presented with substantial evidence regarding
the custody battle for AF between Elaine and Sonnette. It was up to the jury to determine
the credibility of the witnesses, and resolutions of any inconsistent evidence are left to be
made by the jury. Daniels, 2018 Ark. App. 334, at 6–7, 551 S.W.3d at 432. The jury is free to
believe all or part of any witness’s testimony. Id. at 7, 551 S.W.3d at 432; see also Weber v.
State, 326 Ark. 564, 567, 933 S.W.2d 370, 372 (1996) (holding that an appellant’s sufficiency
argument that focused on the inconsistencies in the testimony of a child rape victim and her
mother could have affected the jury’s assessment of the credibility of the witnesses, but it did
not provide a reason for the appellate court to hold that the circuit court erred in refusing to
grant a directed verdict in favor of the appellant). In the case at bar, the jury chose to believe
AF’s testimony.
Charles’s second point on appeal is that the circuit court abused its discretion in
excluding an order of appointment of emergency temporary guardian of AF (order of


appointment). When Charles’s counsel sought to introduce the order or appointment, the
State objected based on relevance. The circuit court sustained the objection. In response,
Charles’s counsel stated:
Judge, I’m going to proffer this as Defendant’s 4 and the relevance is that the officer’s testimony was that nothing else was done after October the 11th. The decision to arrest him was done October the 25th which was one day after this was done. It is our proposition that this order is what sparked this officer to make an arrest. Nothing else happened in this file, other than this, after October the 11th. This is what forced his hand to make an arrest.

On appeal, Charles maintains his argument that the order of appointment is relevant because
it prompted law enforcement to arrest him, when before that time there had been no active
investigation into the rape allegations and no arrest warrant had been issued.
The decision to admit or exclude evidence is within the sound discretion of the
circuit court, and this court will not reverse a circuit court’s decision regarding the admission
of evidence absent a manifest abuse of discretion. Gillean v. State, 2015 Ark. App. 698, at 14,
478 S.W.3d 255, 264. An abuse of discretion is a high threshold that does not simply require
error in the circuit court’s decision but requires that the circuit court acted improvidently,
thoughtlessly, or without due consideration. Id., 478 S.W.3d at 264. Moreover, an appellate
court will not reverse a circuit court’s evidentiary ruling absent a showing of prejudice. Id.,
478 S.W.3d at 264.
Rule 401 of the Arkansas Rules of Evidence defines relevant evidence as “evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Id. at 14–15, 478 S.W.3d at 265 (citing Ark. R. Evid. 401). Arkansas Rule of
Evidence 402 further provides that “[e]vidence which is not relevant is not admissible.” For


evidence to be relevant, it is not required that the evidence prove the entire case; rather, all
that is required is that it have any tendency to make any fact that is of consequence to the
determination of the action more or less probable. Id. at 15, 478 S.W.3d at 265.
Here, the entry of the order of appointment does not have the tendency to make the
existence of any fact that is of consequence to the determination of the action more or less
probable. Charles argues that the entry of the order motivated law enforcement to arrest
him, but what prompted Charles’s arrest has nothing to do with the issue at hand—whether
he raped AF.

Outcome: Therefore, we hold that the circuit court did not abuse its discretion in
excluding the order of appointment.


Plaintiff's Experts:

Defendant's Experts:


Home | Add Attorney | Add Expert | Add Court Reporter | Sign In
Find-A-Lawyer By City | Find-A-Lawyer By State and City | Articles | Recent Lawyer Listings
Verdict Corrections | Link Errors | Advertising | Editor | Privacy Statement
© 1996-2019 MoreLaw, Inc. - All rights reserved.