Cite as
2015 Ark. App. 40
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-396
SEBASTIAN TODD BROWN Opinion Delivered January 28, 2015
APPELLANT
APPEAL FROM THE POLK
COUNTY CIRCUIT COURT
V. [NO. CR-13-103]
HONORABLE J.W. LOONEY, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
PHILLIP T. WHITEAKER, Judge
Appellant Sebastian Brown was charged with one count of rape and one count of
second-degree sexual assault. A Polk County jury convicted him of both counts and
sentenced him to twenty-five years’ imprisonment on the rape count and twenty years on
the sexual-assault count, to be served concurrently. Brown’s sole point on appeal is that there
was insufficient evidence to support his convictions. Because his arguments are not preserved
for appellate review, we affirm without reaching the merits.
The charges against Brown stemmed from accusations that, at the age of twenty-three,
he engaged in sexual intercourse and sexual contact with a person under the age of fourteen.
The evidence against Brown came from several sources: the victim, law enforcement, the
Arkansas State Crime Lab, a health professional, and Brown himself. The victim testified that
Brown came into her bedroom one night and began touching her and removed her clothes.
Cite as 2015 Ark. App. 40
She explained that Brown’s penis went inside her vagina. The victim was thirteen years old
at the time.
Law enforcement collected the underwear that the victim had been wearing the night
of the incident and submitted it to the Crime Lab. A forensic serologist from the Crime Lab
found a stain in the inner crotch area of the underwear consistent with genetic material
coming out of a female’s body; the stain tested positive for spermatozoa. Subsequent DNA
analysis of the material recovered from the underwear showed that the DNA was consistent
with Brown’s DNA and that 99.92% of unrelated Caucasian individuals would be excluded
from having that DNA profile. Mary Jo Selig, a registered nurse who specializes in sexual
assault, examined the victim within a few days of the incident. The exam revealed a deep
notch in the victim’s hymen. Those findings were consistent with the victim’s revelation that
she had engaged in sexual intercourse.
Finally, Brown was interviewed by police shortly after the incident. He admitted that
he touched the victim’s buttocks and that he penetrated her vagina with his penis, although
he said it was “just a little bit.” Brown reiterated this admission during trial. On cross-
examination, he conceded that “there was contact made” with the victim’s vagina and that
his penis went into her vagina.
On appeal, Brown challenges the evidence as being inconclusive. He makes specific
arguments that the DNA evidence did not directly point to him, that Selig’s testimony did
not specifically indicate that there was penetration, and that “all aggressive steps were taken
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by the victim.” These specific arguments, however, were not raised below. At trial, Brown
moved generically for a directed verdict as follows:
Your Honor, I want to make a motion for a directed verdict. The State hasn’t
established all of the elements of the offense that the Defendant engaged in sexual
intercourse or deviate sexual activity with another person less than fourteen years of
age in Count 1, and Count 2, the State hasn’t established all of the elements of assault
in the second degree being eighteen years of age or older engage in sexual contact
with another person who was less than fourteen years of age and not his spouse.
At the conclusion of the trial, Brown renewed his motion:
Your Honor, I renew my motion on asking for a directed—first of all, I’m
going to change that. I’d like to make a motion for a directed verdict based upon
insufficiency of the evidence in that the Defendant engaged in sexual intercourse or
deviate sexual activity with another person less than fourteen years of age.
And, I renew the motion on sexual assault. The State hasn’t met all of the
burden on proving being over eighteen and engaged in sexual contact with another
person less than fourteen years of age and not his spouse.
The procedure for making a motion for directed verdict is set forth in Arkansas Rule
of Criminal Procedure 33.1. This rule provides, in pertinent part, as follows:
(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made
at the close of the evidence offered by the prosecution and at the close of all of the
evidence. A motion for directed verdict shall state the specific grounds therefor.
....
(c) The failure of a defendant to challenge the sufficiency of the evidence at
the times and in the manner required . . . above will constitute a waiver of any
question pertaining to the sufficiency of the evidence to support the verdict or
judgment. A motion for directed verdict or for dismissal based on insufficiency of the
evidence must specify the respect in which the evidence is deficient. A motion merely
stating that the evidence is insufficient does not preserve for appeal issues relating to
a specific deficiency such as insufficient proof on the elements of the offense.
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Our supreme court has held that Rule 33.1 is to be strictly construed. Carey v. State,
365 Ark. 379,
230 S.W.3d 553 (2006). In order to preserve a challenge to the sufficiency of
the evidence, an appellant must make a specific motion for a directed verdict, both at the
close of the State’s case and at the end of all the evidence. The motion must advise the trial
court of the exact element of the crime that the State has failed to prove.
Id. The reason
underlying the requirement that specific grounds be stated and that the absent proof be
pinpointed is that it allows the circuit court the option of either granting the motion or, if
justice requires, allowing the State to reopen its case and supply the missing proof.
Id. A
general motion that merely asserts that the State has failed to prove its case is inadequate to
preserve the issue for appeal.
Id. The motion must specifically advise the trial court as to how
the evidence was deficient. Gillard v. State,
372 Ark. 98,
270 S.W.3d 836 (2008). “A general
motion that merely asserts that the State has failed to prove its case is inadequate to preserve
the issue for appeal.”
Id. at 102,
270 S.W.3d at 839.
We conclude that, at trial, Brown generally and non-specifically argued that the State
was unable to prove the elements of rape and second-degree sexual assault. On appeal, he
specifically argues that the evidence and testimony presented at trial was inconclusive: he
challenges the method by which the victim’s clothing and DNA samples were obtained; he
takes issue with the victim’s testimony describing the events in question; and he questions
the statistical significance of the DNA evidence. None of these arguments, however, were
presented during his directed-verdict motion. His arguments on appeal are thus not preserved
for this court’s review, and we will therefore not address Brown’s sufficiency argument on
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appeal. Accordingly, we affirm the circuit court’s denial of Brown’s motion for directed
verdict.
Affirmed.
VAUGHT and HOOFMAN , JJ., agree.
Randy Rainwater, for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., and Trae Norton, Law
Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the
Bar of the Supreme Court under the supervision of Darnisa Evans Johnson, for appellee.
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