David Kelley-Lucas v. State of Arkansas , 2023 Ark. App. 93 ( 2023 )

Cite as 2023 Ark. App. 93ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-22-126
DAVID KELLEY-LUCAS Opinion Delivered February 22, 2023
APPELLANT
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
V. [NO. 04CR-20-422]
STATE OF ARKANSAS HONORABLE ROBIN F. GREEN,
APPELLEE JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
David Kelley-Lucas was convicted by a Benton County Circuit Court jury of one
count of rape and one count of second-degree sexual assault. The victim was his ten-year-old
daughter, minor child (MC). Kelley-Lucas was sentenced to twenty-five years’ imprisonment
for the rape conviction and twelve years’ imprisonment for the second-degree sexual-assault
conviction, with the sentences ordered to be served consecutively, for a total of thirty-seven
years in the Arkansas Department of Correction. On appeal, Kelley-Lucas challenges the
sufficiency of the evidence to support his convictions. We affirm.
At trial, MC testified that the sexual abuse took place at home during the
Thanksgiving holiday break in 2019. MC lived in her father’s home with him and her
stepmother, Michelle Kelley-Lucas. Michelle was not present during this time because she
was at an inpatient mental-health facility after a suicide attempt that, according to her, was
due, in part, to Kelley-Lucas’s infidelity.
One evening during the break, MC and Kelley-Lucas were home when Kelley-Lucas
asked MC to “scratch his legs,” which was a common request. At the time, Kelley-Lucas was
wearing a shirt and his boxer shorts. MC scratched his legs for twenty or thirty minutes until
he told her to take a shower, which she did. After showering, MC put on her pajama pants
and a shirt, but Kelley-Lucas made her change into a nightgown. He told her to scratch his
legs again, and after about ten minutes of doing so, told MC to sit between his legs because
it would be easier for her to scratch his legs. MC did so and was sitting up between Kelley-
Lucas’s legs, but Kelley-Lucas told her to lie down with her head on his stomach so he could
see the TV.
Kelley-Lucas then began to scratch MC while asking her where she wanted him to
scratch. He then started to touch her “private”—which she identified at trial as her vagina—
outside her underwear. Kelley-Lucas touched her vagina with his hand and moved his hand
around for some time, then began to touch her vagina inside her underwear. She could feel
Kelley-Lucas’s fingers touching the inside of her vagina. She did not remember exactly how
long this went on but recalled that “[i]t felt like a long time.” He eventually stopped touching
her vagina and told her to go to bed.
The next night, after dinner and her shower, Kelley-Lucas made MC change into a
nightgown and lie in his lap, and then he touched her vagina inside her underwear. On the
third night, Kelley-Lucas had MC scratch his legs after she took her shower, then he had her
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lie between his legs again. He touched MC’s vagina under her underwear for ten minutes.
Kelley-Lucas later warned MC not to tell anybody about what had been going on at the
house.
On February 19, 2020, MC told Michelle that Kelley-Lucas had been touching her,
and Michelle called 911. MC was interviewed at the Children’s Advocacy Center of Benton
County. She told the interviewer that Kelley-Lucas would grab and rub her “front private”
and that he tried to press the center of her private. She also said Kelley-Lucas tried to get her
to watch pornography and, at times, would stick his hand in his underwear and play with his
privates.
On appeal, Kelley-Lucas argues that sufficient evidence does not support his
convictions for rape and second-degree sexual assault. Specifically, he asserts the State failed
to prove penetration required for “deviant sexual behavior” under the rape statute or sexual
contact under the sexual-assault statute.
In reviewing a sufficiency challenge, we assess the evidence in the light most favorable
to the State and consider only the evidence that supports the verdict. Armstrong v. State, 2020
Ark. 309, 607 S.W.3d 491. We will affirm a judgment of conviction if substantial evidence
exists to support it. Id. Substantial evidence is evidence that 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.Circumstantial evidence may provide a basis to support a conviction, but it must be
consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion.
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Collins v. State, 2021 Ark. 35, 617 S.W.3d 701. Whether the evidence excludes every other
hypothesis is left to the jury to decide. Id. Further, the credibility of witnesses is an issue for
the jury, not the court; the trier of fact is free to believe all or part of any witness’s testimony
and may resolve questions of conflicting testimony and inconsistent evidence. Armstrong,
supra.
“A person commits rape if he or she engages in sexual intercourse or deviate sexual
activity with another person who is less than fourteen years of age.” Ark. Code Ann. § 5-14-
103(a)(3)(A) (Supp. 2021). Deviate sexual activity means “any act of sexual gratification
involving [t]he penetration, however, slight, of the anus or mouth of a person by the penis
of another person; or [t]he 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) (Supp. 2021).
“A person commits sexual assault in the second degree if the person, being eighteen
years of age or older, engages in sexual contact with another person who is less than fourteen
years of age and not the person’s spouse.” Ark. Code Ann. § 5-14-125(a)(3) (Supp. 2021).
“Sexual contact” is defined as “any act of sexual gratification involving the touching, directly
or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a
female.” Ark. Code Ann. § 5-14-101(12)(A).
A victim’s uncorroborated testimony may constitute substantial evidence to sustain a
conviction for rape or sexual assault, even when the victim is a child. E.g., Jeffries v. State,
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2014 Ark. 239, at 4, 434 S.W.3d 889, 893 (rape); see also, e.g., Brown v. State, 2010 Ark. 420,
at 10, 378 S.W.3d 66, 72 (sexual assault).
Here, Kelley-Lucas argues that the evidence of his having penetrated MC was
insufficient because MC’s statements on the stand were “the only time her story included
any penetrative aspects.” Citing Houston v. State, 293 Ark. 492, 493, 739 S.W.2d 154, 155
(1987), and Hamm v. State, 214 Ark. 171, 173, 214 S.W.2d 917, 918 (1948), Kelley-Lucas
maintains the State’s burden was not met because the victim’s testimony was not “positive
and unequivocal.” We find no merit in his argument.
MC testified that Kelley-Lucas made her scratch his legs, then he touched her vagina
underneath her underwear with his hand on three consecutive nights. She said Kelley-Lucas
touched her on the inside of her vagina with his hand on the first night, and she knew this
because she could feel it. MC’s testimony alone constitutes sufficient evidence that Kelley-
Lucas committed rape and second-degree sexual assault. Jeffries, supra.
Further, we do not weigh the evidence presented at trial or assess the credibility of
the witnesses because those are matters for the fact-finder. The trier of fact is free to believe
all or part of any witness’s testimony and may resolve questions of conflicting testimony and
inconsistent evidence. Hall v. State, 361 Ark. 379, 383, 206 S.W.3d 830, 833 (2005). We
cannot assess the credibility of witnesses, nor will we overturn supreme court precedent.
Substantial evidence was presented to the jury in the instant case to support Kelley-Lucas’s
convictions of rape and second-degree assault, and we affirm.
Affirmed.
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GRUBER and BARRETT, JJ., agree.
Lisa-Marie Norris, for appellant.
Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.
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