Ortega v. State

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                 SUPREME COURT OF ARKANSAS
                                        No.   CR-16-106

                                                  Opinion Delivered: November   3, 2016
THOMAS CONAN ORTEGA
                                                  APPEAL FROM THE GARLAND
V.                                                COUNTY CIRCUIT COURT
                                                  [26CR-14-533]

STATE OF ARKANSAS                                 HONORABLE MARCIA R.
                                                  HEARNSBERGER, JUDGE

                                                  AFFIRMED.


                              ROBIN F. WYNNE, Associate Justice


        Thomas Conan Ortega appeals his conviction for rape, for which he was sentenced

 as a habitual offender to life imprisonment. On appeal, he challenges the sufficiency of the

 evidence supporting his conviction and argues that the trial court erred when it refused to

 submit the jury verdict form by interrogatories. Because appellant was sentenced to life

 imprisonment, this court’s jurisdiction is pursuant to Arkansas Supreme Court Rule 1-

 2(a)(2) (2015). We affirm.

        Appellant was charged as a habitual offender in the Garland County Circuit Court

 with rape under two alternative theories: that he engaged in sexual intercourse or deviate

 sexual activity with another person by forcible compulsion or that the victim was incapable

 of consent because she was physically helpless. At appellant’s jury trial, the victim testified

 that on the morning of July 4, 2014, her husband left their home in Mountain Pine to join

 a motorcycle club, which had been a subject of contention between the couple. That night

 at around 10:30, she left her cell phone with her children and her stepson in case of an
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emergency and drove to downtown Hot Springs to meet her husband. They had drinks at

several clubs, she became intoxicated, and the couple began to argue. As they were leaving

on her husband’s motorcycle, she got off. She expected him to go back to get her, but he

drove to his mother’s house; the victim was very upset and was crying hysterically on a curb

when appellant approached her. She told appellant that she needed to get to her car, and

he offered to help her; he put his arm around her, helping her walk, and they walked

together for several blocks to a house on Grand Avenue. They went onto the porch, and

appellant, who claimed to live there,1 knocked on the door. While they were sitting on the

porch, appellant tried to kiss her, and she told him, “I can’t kiss you.” At that point, she

got up and told appellant that she needed to get home. They walked around to the side of

the house, at which point appellant knocked on the door of a smaller house, and the victim

saw a Rent-A-Center sign and recognized Central Avenue, where her car was parked. As

she attempted to part ways with appellant, he put her in a choke hold and she passed out.

She awoke inside a dumpster, opened the lid, and saw the Rent-A-Center sign. She realized

that she had blood on her hands and face and that she was sore in her genital area,2 and she

ran toward Central Avenue seeking help.             She collapsed in the street, and two 911

dispatchers in separate vehicles saw her and stopped to help. They testified that they were

driving home at around 6:00 a.m. after working a shift, and they found the victim crying,



       1
           The house was later identified as belonging to appellant’s brother.
       2
        The victim further testified on cross-examination that the soreness she experienced
in her genital area had never happened to her before during “normal, voluntary” sexual
intercourse.


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very emotional and upset, and covered in blood. She stated that she had been raped. She

was taken by ambulance to the hospital, and medical staff there collected a rape kit. The

nurse testified that the victim had a lot of dirt and debris (such as leaves) in her mouth, her

genital area, and her undergarments and clothing. The emergency-room physician who

treated the victim testified that she had tenderness and bruising on her neck that were

consistent with choking and were not consistent with her wearing a c-collar in the

ambulance and upon admission to the hospital. Expert testimony was presented that

appellant’s DNA was present on the vaginal swab from the rape kit. In addition, the jury

saw photographs of the victim’s injuries.       Detective Patrick Langley testified that he

interviewed appellant on July 5, and appellant denied knowing, or having any involvement

with, the victim. At that time, Det. Langley photographed injuries to appellant’s leg, arm,

torso, and hands; the injuries appeared to be recent, and included scratches and redness.

About one month later, Detective Langley interviewed appellant a second time, and he

again stated that he did not know the victim and did not have any kind of sexual

involvement with her.

       For his first point on appeal, appellant argues that the trial court erred in denying his

motion for directed verdict; he contends that the State failed to present sufficient evidence

to support a conviction for rape under either theory—by forcible compulsion or because

the victim was physically helpless. In reviewing a challenge to the sufficiency of the

evidence, this court determines whether the verdict is supported by substantial evidence,

direct or circumstantial. Jeffries v. State, 

, 

.

Substantial evidence is evidence forceful enough to compel a conclusion one way or the


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other beyond suspicion or conjecture. 

 This court views the evidence in the light most

favorable to the verdict, and only evidence supporting the verdict will be considered. 

       A person commits rape if he or she engages in sexual intercourse or deviate sexual

activity with another person by forcible compulsion. 

(a)(1)

(Repl. 2013). A person also commits rape if he or she engages in sexual intercourse or

deviate sexual activity with another person who is incapable of consent because he or she is

physically helpless. 

(a)(2)(A). Those terms are defined in our

criminal code as follows. “Sexual intercourse” means penetration, however slight, of the

labia majora by a penis. 

(11). “Forcible compulsion” means

physical force or a threat, express or implied, of death or physical injury to or kidnapping

of any person. 

 § 5-14-101(2). “Physically helpless” means that a person is unconscious;

physically unable to communicate a lack of consent; or rendered unaware a sexual act is

occurring. Id. § 5-14-101(7). Here, defense counsel made a specific motion for directed

verdict at the close of the State’s case, and renewed the motion at the close of all evidence.

The circuit court denied the motions.

       In his brief, appellant recounts the evidence favorable to his position and asks this

court to make credibility determinations. He contends that “substantial evidence supports

an act of consensual sexual intercourse.” Appellant points to evidence that the victim was

angry with her husband; that she had been drinking on July 4 and into the early morning

hours of July 5, 2014; that her anger continued when her husband left her “stranded”; that

a witness saw her willingly walking down the street with appellant; that she had no

recollection of what had happened between allegedly being choked and waking up in a


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dumpster. Appellant argues that the redness and pain on her neck was due to the c-collar

she wore, not appellant choking her, and that any minor injuries she had were likely from

her fall on Central Avenue. Regarding the “physically helpless” charge of rape, appellant

appears to argue that the evidence was insufficient to show that the victim was actually too

intoxicated to consent to sexual intercourse.

       In short, appellant asks this court to disbelieve the victim’s testimony and the other,

circumstantial evidence of rape and to believe the defense’s theory of the case. But this

court does not make credibility determinations. See Simpson v. State, 

, 

 (2003) (“[I]t is the sole province of the jury to determine a witness’s

credibility, as well as the weight and value of his testimony.”) Furthermore, circumstantial

evidence constitutes substantial evidence when every other reasonable hypothesis consistent

with innocence is excluded. Nance v. State, 

, 591–92, 

(1996). Here, there was evidence that the victim was unconscious (and thus physically

helpless) when appellant forcibly engaged in sexual intercourse with her against her will.

Properly viewing the evidence in the light most favorable to the State, we hold that there

was substantial evidence of rape under both alternate theories of the case. Therefore, we

affirm on this point.

       For his second point on appeal, appellant argues that the trial court should be reversed

and his case remanded for a new trial because the court erred when it refused to submit the

jury verdict form by interrogatories. At trial, the State initially agreed to such a verdict

form; it later objected and requested a general verdict form, citing Terry v. State, 

, 

 (2007). In Terry, the defendant was charged with capital murder under


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the felony-murder and premeditated-and-deliberated provisions of the statute; the jury

rendered a general verdict of guilty, and this court affirmed the conviction. Appellant is

correct that the issue of the propriety of the general verdict form was not addressed in Terry;

however, appellant offered no authority or convincing argument to meet his burden of

showing that use of the model verdict form was improper. On appeal, appellant contends

that the general verdict form allowed the jury to convict him without a unanimous decision

on either alternate theory of rape, and that the court committed reversible error when it

refused his proffered nonmodel-verdict form requiring the jury to unanimously find him

guilty of rape by forcible compulsion, guilty of rape because the victim was physically

helpless, or not guilty. In assessing whether a circuit court should have submitted a proffered

nonmodel-verdict form to the jury, this court uses the same standard that it applies when

considering whether a proffered nonmodel jury instruction is warranted. Perry v. State, 

, 

. This court has held that nonmodel jury instructions are to be

given only when the circuit court finds that the model instructions do not accurately state

the law or do not contain a necessary instruction on the subject. 

 Further, just because a

proffered jury instruction may be a correct statement of the law does not mean that a circuit

court must give the proffered instruction to the jury. 

 This court will not reverse a circuit

court’s decision to give or reject an instruction unless the court abused its discretion. 

       We do not reach the merits of appellant’s argument because he cites no authority

whatsoever in support of his argument and it is not apparent without further research that

his argument is well taken. This court has repeatedly held that it will not consider an

argument that presents no citation to authority or convincing argument. E.g., Kelly v. State,


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, 

 (2002); Strong v. State, 

, 

 (2008) (“We will not consider an argument, even a constitutional one,

when the appellant presents no citation to authority or convincing argument in its support

and it is not apparent without further research that the argument is well taken.”)

       Pursuant to Arkansas Supreme Court Rule 4-3(i), the record has been reviewed for

all objections, motions, and requests that were decided adversely to appellant, and no

prejudicial error has been found.

       Affirmed.

       GOODSON, J., concurs.

       DANIELSON and HART, JJ., dissent.

       COURTNEY HUDSON GOODSON, Justice, concurring. I agree that substantial

evidence supports appellant’s conviction of rape. I also support the majority’s conclusion

that we must affirm the verdict-form issue that is raised on appeal because appellant wholly

failed to support his argument with any citation to authority.        I write separately to

underscore the wisdom of refusing to address the merits of this point.

       This court has been resolute in holding that we do not consider an argument, even

a constitutional one, when the appellant presents no citation to authority or convincing

argument in its support, and it is not apparent without further research that the argument is

well taken. Maiden v. State, 

, 

; Britton v. State, 

,

; Green v. State, 

, 

; Menne v. State, 

, 

; Hollis v. State, 

, 

 (2001); Roberts v. State,

, 

 (1996). When an appellant fails to support his argument with


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authority, he is effectively asking this court to research the law on the subject. See Bonds v.

State, 

, 

 (1988); see also Dixon v. State, 

, 

 (1977) (stating that “[i]n effect the court is asked to research the law and

to hold in favor of the appellant if the result of our labor so demands. We must decline that

invitation”). However, this court does not research or develop arguments for appellants.

Turner v. State, 

, 

; Hester v. State, 

, 

 (2005).

       We are asked to decide in this case the following issue of first impression: whether

a circuit court falls into error by giving the jury a general verdict form when the State, in a

single count, charges the commission of an offense by different means. In Griffin v. United

States, 

 (1991), the United States Supreme Court recognized that this charging

practice has its origin in English common law. It also appears that the Supreme Court has

upheld the use of a general verdict form when a defendant is so charged. Schad v. Arizona,

 (1991). Thus, it is not apparent without further research that the issue raised

has merit. As this state’s highest court, to definitively answer the question posed in this case

would require us to research the treatment of this issue by our sister states and the federal

courts. This would place us in the untenable position of developing the issue entirely on

our own without any input from the parties. It is a far better practice to decide issues that

are developed and presented to us in adversarial fashion. Thus, this court wisely declines to

address arguments that are not supported by authority. We rightfully do so here.

       PAUL E. DANIELSON, Justice, dissenting. I would reverse and remand for a new

trial due to the circuit court’s error in refusing to submit the verdict form by interrogatories.


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As the majority notes, the State relied below on Terry v. State, 

, 

 (2007), for the proposition that a general verdict form, rather than interrogatories,

should be given when a charge is tried on alternate theories. On appeal, the State continues

to cite Terry and also points us to Griffin v. United States, 

 (1991), and Norris v.

State, 

, 

. However, Terry, Griffin, and Norris do not stand for

the proposition for which the State says they do. In both Terry and Norris, the defendants

were charged with capital murder under two alternate theories: felony murder under

Arkansas Code Annotated section 5-10-101(a)(1) and premeditated-and-deliberated murder

under section 5-10-101(a)(4). Norris, 

, 

; Terry, 

,

. Both appeals involved challenges to the sufficiency of the evidence. This

court held in both cases that because there was sufficient evidence to support the conviction

for capital-felony murder under subsection (a)(1), there was no need to consider the

sufficiency of the evidence supporting the alternative charge of premeditated-and-

deliberated murder under subsection (a)(4). Norris, 

, 

; Terry,

, 

. “Given the general guilty verdict, we must conclude that

there is sufficient evidence under one of the instructed elements for either subsection[] (a)(1)

or (a)(4).” Terry, 

, 

. Both cases cited to Griffin, 

, for the proposition that a general verdict of guilty is valid so long as it is legally

supportable by one ground.

       These cases simply did not address the issue that Ortega raises here, which concerns

the propriety of submitting a general verdict form as opposed to interrogatories when a

charge is tried on alternate theories. Neither Terry nor Norris contains any mention that the


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defendant requested separate interrogatories, much less a discussion regarding whether it

would have been proper to give them.1 Those cases addressed only the effect, on appeal,

of the submission of a general verdict form, which is that a defendant challenging the

sufficiency of the evidence must demonstrate that the evidence was insufficient under both

alternate theories. Thus, Terry, Norris, and Griffin actually illustrate Ortega’s point: without

interrogatories, he was foreclosed from knowing on what basis the jury had convicted him,

and he was consequently handicapped on appeal. In my view, the use of a general verdict

form in this case precluded Ortega from making a record, which is of particular concern in

light of the fact that he specifically requested and proffered a verdict form containing

interrogatories.

       I am mindful that the majority rejects Ortega’s argument on the basis that he fails to

support it with citation to authority. However, Ortega does argue that “[t]he State’s reliance

upon Terry is misplaced,” and even the majority concedes that he is correct on that point;

Terry does not address or support the State’s position, and no other citation to authority is

necessary to demonstrate that. I find it troubling that the majority agrees with Ortega’s

point—that the circuit court relied on Terry to support a proposition for which it does not

stand—yet refuses to acknowledge that the circuit court abused its discretion. See, e.g.,

Samontry v. State, 

, 

 (“An abuse of discretion may

be manifested by an erroneous interpretation of the law.”). Accordingly, I dissent.


       1
        In Griffin, which involved a multiple-object conspiracy charge, the Court noted that
the defendant had “proposed special interrogatories asking the jury to identify the object or
objects of the conspiracy of which she had knowledge.” 

. But this request
was denied, and the Court did not discuss whether that denial was error.


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       HART, J., joins in this dissent.

       JOSEPHINE LINKER HART, Justice, dissenting. I disagree with the majority’s

decision to bar Mr. Ortega’s argument concerning his entitlement to submit an interrogatory

to the jury. Not only was the bar inappropriate in this case, I believe his argument is well

taken. In my view, this case should have been reversed and remanded for a new trial. I

therefore respectfully dissent.

       The majority relies on the bar stated in Kelly v. State, 

, 

(2002), “This court has held that it will not consider an argument that presents no citation

to authority or convincing argument.” Accordingly, because “or” is disjunctive, to justify

summarily disposing of an appellant’s argument, an appellant must neither cite authority nor

make a convincing argument. I submit that Mr. Ortega has done both.

       Our rape statute states in pertinent part:

       (a) A person commits rape if he or she engages in sexual intercourse or deviate sexual
       activity with another person:
       (1) By forcible compulsion;

       (2) Who is incapable of consent because he or she is:

       (A) Physically helpless;

. In the case before us, the State put forth two inconsistent

theories of how Mr. Ortega raped Ms. Jackson: by forcible compulsion and by taking

advantage of a victim who was physically helpless.

       At trial, relying on black-letter law, Mr. Ortega requested interrogatories to make

sure that if he was convicted, the jury unanimously found beyond a reasonable doubt that




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he committed each and every element of the crime. However, the State convinced the

circuit court that Terry v. State, 

, 

 (2007) stands for the

proposition that his requested interrogatories should not be given.

       Citing Terry, Mr. Ortega demonstrates on appeal that Terry is completely silent on

the issue of submitting interrogatories to the jury. Accordingly, it is disingenuous to assert

that Mr. Ortega has cited no authority. On that basis alone, the bar is inappropriate.

       Secondly, Mr. Ortega’s argument on appeal, which I find convincing, is that, as in

every criminal case, each element of the crime must be proved beyond a reasonable doubt,

and without interrogatories, no one could be sure that all twelve jurors agreed on what the

State had proved regarding Mr. Ortega’s conduct. I needed no citation of authority for that

proposition that in a criminal trial, the State must prove each element of a charged offense

beyond a reasonable doubt. Nonetheless, I direct the majority to Pearls v. State, 

, 

 (1979) (reversing for a new trial because the jury instructions did not

state that the State was required to prove “each material element of each crime charged”

beyond a reasonable doubt).

       I would reverse and remand this case to the circuit court.

       DANIELSON, J., joins.

       Digby Law Firm, by: Bobby R. Digby II, for appellant.

       Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee




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