                                 Cite as 2016 Ark. App. 243

                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                       No. CR-15-741


ALI MARTIN MATAR, JR.                              Opinion Delivered May 4, 2016
                     APPELLANT
                                                   APPEAL FROM THE BENTON
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. 04CR-2014-777-2]

STATE OF ARKANSAS                                  HONORABLE BRADLEY LEWIS
                                  APPELLEE         KARREN, JUDGE

                                                   AFFIRMED

                                RITA W. GRUBER, Judge

       Appellant Ali Martin Matar, Jr., was convicted by a jury of rape and sentenced to

thirty-five years’ imprisonment. The victim was a kindergarten student at the after-school

program where appellant worked. He raises the following three points on appeal: (1) the trial

court erred in denying his motions for directed verdict; (2) the trial court erred in denying his

motion to suppress his confession; and (3) the trial court abused its discretion in denying his

motion for a continuance. We hold that appellant did not preserve his first point for appellate

review; that appellant was not in custody for purposes of Miranda and, thus, the trial court’s

denial of his motion to suppress was not clearly against the preponderance of the evidence;

and that the trial court did not abuse its discretion in denying his motion for continuance.

Accordingly, we affirm.

       The Bentonville Police Department began an investigation regarding the sexual abuse

of a child at the after-school program for R.E. Baker Elementary School after a call was made
                                 Cite as 2016 Ark. App. 243

to the Arkansas Child Abuse Hotline. The five-year-old victim was interviewed at the

Children’s Advocacy Center (CAC) and made allegations against appellant.

       This interview prompted the lead investigator, Detective Dahrron Moss, to attempt

to contact appellant. Detective Moss eventually left a voice message for appellant, who

returned his call. Detective Moss explained that an allegation had been made against appellant

and, though he was under no obligation, Detective Moss would like to speak with him at the

police department. Appellant went to the police department where Detective Moss took him

to a small interview room. After making small talk, Detective Moss began asking appellant

about his job, the challenges of childcare, and, eventually, about his interactions with the

victim. Appellant admitted that his fingers had been inside of her panties while they were in

the computer lab but claimed that he was merely attempting to make her stop touching

herself inappropriately. Appellant said that his fingertips “grazed” inside of her vagina when

he was trying to get her fingers out of her panties.

       At this point, Detective Moss took a break, consulted with other officers, and returned

to the interview room. He read appellant his Miranda rights and asked him if he was willing

to keep talking, to which appellant replied, “yes.” Eventually, appellant admitted that he had

put his hand in the victim’s panties and “grazed” her vagina and that he had also put his finger

in her vagina “out of curiosity.”

       Appellant was charged with rape under Arkansas Code Annotated section 5-14-103,

which provides in pertinent part, that a person commits rape if he or she engages in sexual

intercourse or deviate sexual activity with another person less than fourteen years of age. Ark.


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Code Ann. § 5-14-103(a)(3)(A) (Repl. 2013). Deviate sexual activity includes any “act of

sexual gratification” involving the penetration, however slight, of the labia majora of a person

by any body member or foreign instrument manipulated by another person. Ark. Code Ann.

§ 5-14-101(1) (Repl. 2013).1 After a trial held on January 27, 2015, the jury found him guilty

and sentenced him to thirty-five years’ imprisonment.

                                  I. Sufficiency of the Evidence

       On appeal, appellant contends that the trial court erred in denying his motions for

directed verdict because the evidence was insufficient to show that he engaged in deviate

sexual activity or sexual intercourse with the minor victim.2 Specifically, he states that,

although the victim testified that he “tickled [her] on the inside of [her] private part” with

his hand under her panties while they were in computer lab, testimony at trial established that

he was never alone with the victim, that the victim had said that she liked him as a teacher,

and appellant admitted the allegations to police in his confession only because he was “saying

whatever they wanted” until he could prove everything at trial.

       Because appellant did not raise these arguments to the trial court, we decline to reach

the merits of this issue. Arkansas Rule of Criminal Procedure 33.1 requires a motion for

directed verdict to specify how the evidence is deficient. Ark. R. Crim. P. 33.1(c) (2015).



       1
       Appellant was also charged with two counts of second-degree sexual assault against
two other victims but was found not guilty on both counts.
       2
       Although appellant’s brief enumerates this as his third point on appeal, we must
consider it first due to the prohibitions against double jeopardy. Briggs v. State, 2015 Ark.
App. 364, at 4, 465 S.W.3d 24, 27.

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The motion must be specific enough to apprise the trial court of the particular basis on which

the motion is made. Scott v. State, 2015 Ark. App. 504, at 4, 471 S.W.3d 236, 239. The

reason underlying this rule is that, when specific grounds are stated and the proof is

pinpointed, the trial court can either grant the motion or allow the State to reopen its case

and supply the missing proof. Id. A further reason that the motion must be specific is that the

appellate court may not decide an issue for the first time on appeal and cannot afford relief

that is not first sought in the trial court. Phillips v. State, 361 Ark. 1, 203 S.W.3d 630 (2005).

A party moving for directed verdict may not change his arguments on appeal and is limited

to the scope and nature of his arguments made below. Id.

       Here, appellant made motions for a directed verdict at the appropriate times during

the trial, but in each instance, counsel’s sole argument was that the State had put on no

evidence that appellant received sexual gratification. Appellant is not making the same

argument on appeal but argues instead that the case is a “simple misunderstanding of a

person-to-person contact” and that appellant did not engage in deviate sexual activity with

the victim. This argument is significantly different from, and broader than, the relatively

narrow argument appellant made in the trial court. Therefore, appellant failed to preserve his

sufficiency challenge for appellate review.

       Were we to consider the merits of appellant’s argument, we would affirm. A motion

for a directed verdict is a challenge to the sufficiency of the evidence. Cobb v. State, 340 Ark.

240, 243, 12 S.W.3d 195, 197 (2000). The test for determining sufficiency of the evidence

is whether there is substantial evidence, direct or circumstantial, to support the verdict.


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Johnson v. State, 337 Ark. 196, 201, 987 S.W.2d 694, 697 (1999). Evidence is substantial if

it is forceful enough to compel reasonable minds to reach a conclusion and pass beyond

suspicion and conjecture. Harmon v. State, 340 Ark. 18, 22, 8 S.W.3d 472, 474 (2000). On

appeal, we consider only the evidence that supports the verdict, viewing the evidence in the

light most favorable to the State. LeFever v. State, 91 Ark. App. 86, 89, 208 S.W.3d 812, 815

(2005). Witness credibility is an issue for the fact-finder, who is free to believe all or a portion

of any witness’s testimony and whose duty it is to resolve questions of conflicting testimony

and inconsistent evidence. Id.

       In this case, the victim testified that appellant put his hand in her panties and tickled

inside her private part. This testimony alone was sufficient to prove the crime of rape. See

Weber v. State, 326 Ark. 564, 568, 933 S.W.2d 370, 372 (1996) (stating that the court had

repeatedly held that the uncorroborated testimony of a child rape victim is sufficient evidence

to sustain a conviction).

                                      II. Motion to Suppress

       For his second point on appeal, appellant challenges the trial court’s denial of his

motion to suppress the statement he made to police. This court reviews a trial court’s

decision denying a defendant’s motion to suppress a confession by making an independent

determination based on the totality of the circumstances, and we will reverse the ruling only

if it is clearly against the preponderance of the evidence. Williamson v. State, 2013 Ark. 347,

429 S.W.3d 250. Conflicts in testimony at a suppression hearing about the circumstances

surrounding a defendant’s in-custody statement are for the trial judge to resolve. Fritts v.


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State, 2013 Ark. 505, at 7, 431 S.W.3d 227, 231.

       The facts relevant to this issue are not in dispute and were presented at the suppression

hearing. Detective Moss left a message for appellant to call him, which appellant did.

Detective Moss explained that there was an investigation involving appellant and that

Detective Moss would like for appellant to come to the police department to speak with

him. Appellant voluntarily drove to the police station, where Detective Moss took him to

an interview room. On the way to the room, Detective Moss explained to appellant how to

get out of the station when he was leaving. Detective Moss did not arrest appellant, did not

take his keys or cell phone, and did not handcuff or restrain appellant in any way. The door

to the interview room automatically locks when the door closes. It is not clear whether

appellant knew this at the time of the interview.

       The two men began with small talk about sports. The conversation then turned to

appellant’s work and the specifics of the allegations. After appellant admitted that he had

“accidentally” touched the victim inappropriately, Detective Moss took a break, spoke with

fellow officers about additional techniques to elicit pertinent information from appellant, and

returned to the interview room. He then read appellant his Miranda rights, and appellant

signed the waiver-of-rights form. The audio revealed that, while Detective Moss was

consulting his colleagues, he said that he “f***** up.” Appellant argues that Detective Moss

was referring to his failure to read appellant his rights earlier; Detective Moss claims that he

was referring to his failure to obtain the necessary evidence against appellant. In any case,

appellant continued talking with Detective Moss and another detective after he signed his


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waiver form, at which point he admitted that he had committed the act due to his curiosity.

       The trial court found that appellant was not “in custody” before the Miranda warning

was given and thus denied appellant’s motion to suppress. The court reasoned that appellant

returned Detective Moss’s phone call, voluntarily drove to the police station for the

interview, and was allowed to keep his keys and cell phone during the interview. Also, the

court noted that Detective Moss testified that appellant would have been allowed to leave

at any time.

       Miranda warnings are required only in the context of a custodial interrogation. Breeden

v. State, 2014 Ark. 159, at 7, 432 S.W.3d 618, 624. A person is in custody for purposes of

Miranda warnings when he or she is “deprived of his freedom of action by formal arrest or

restraint on freedom of movement of the degree associated with a formal arrest.” Solomon v.

State, 323 Ark. 178, 186, 913 S.W.2d 288, 292 (1996). Miranda warnings are not required

simply because the questioning takes place in the police station or because the questioned

person is one whom the police suspect. See State v. Spencer, 319 Ark. 454, 457, 892 S.W.2d

484, 485 (1995). In resolving the question of whether a suspect was in custody at a particular

time, the only relevant inquiry is how a reasonable person in the suspect’s shoes would have

understood the situation. Breeden, 2014 Ark. 159, at 8, 432 S.W.3d at 625.

       In Oregon v. Mathiason, 429 U.S. 492 (1977) (per curiam), the Supreme Court held

that the defendant was not “in custody” where he agreed to meet the officer at the police

station about the crime; he was not arrested; he went into a closed room with the officer; and

he was advised, before he confessed to the crime, that the police believed he was involved


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and that his fingerprints were found at the scene [which was false]. The Court reasoned as

follows:

               Such a noncustodial situation is not converted to one in which Miranda applies
       simply because a reviewing court concludes that, even in the absence of any formal
       arrest or restraint on freedom of movement, the questioning took place in a “coercive
       environment.” Any interview of one suspected of a crime by a police officer will have
       coercive aspects to it, simply by virtue of the fact that the police officer is part of a law
       enforcement system which may ultimately cause the suspect to be charged with a
       crime. But police officers are not required to administer Miranda warnings to everyone
       whom they question. Nor is the requirement of warnings to be imposed simply
       because the questioning takes place in the station house, or because the questioned
       person is one whom the police suspect. Miranda warnings are required only where
       there has been such a restriction on a person’s freedom as to render him “in custody.”
       It was that sort of coercive environment to which Miranda by its terms was made
       applicable, and to which it is limited.

Id. at 495; see also Breeden, supra (holding defendant not in custody where he was asked to go

to the sheriff’s office by his ex-wife, he arrived at the office of his own volition, and he was

told that he could leave any time); Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006)

(holding defendant not in custody where she was asked, not ordered, to go to the police

station; she was not handcuffed; and she was described as very cooperative). We hold that

appellant was not “in custody,” and we affirm the court’s ruling denying appellant’s motion

to suppress.

                                   III. Motion for Continuance

       Finally, appellant argues that the trial court abused its discretion in denying his motion

to continue, resulting in prejudice that amounted to a denial of justice. Appellant filed a

motion for continuance on January 20, 2015, arguing that he did not have adequate time to

prepare because the State had provided two additional items of discovery “days before” the


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jury trial: a follow-up CAC interview of another alleged victim; and transcripts of appellant’s

recorded jail phone calls. A trial court’s grant or denial of a motion for continuance is

reviewed under an abuse-of-discretion standard. Creed v. State, 372 Ark. 221, 223, 273

S.W.3d 494, 496 (2008). We will not reverse the trial court’s denial of a motion for

continuance unless the appellant demonstrates that the trial court abused its discretion and

proves prejudice that amounts to a denial of justice. Hill v. State, 2015 Ark. App. 700, at 6–7,

478 S.W.3d 225, 230. When a motion for continuance is based on a lack of time to prepare,

the appellate court considers the totality of the circumstances. Mahomes v. State, 2013 Ark.

App. 215, at 7, 427 S.W.3d 123, 128.

       We turn first to the CAC interview. This was a second interview of one of the other

alleged victims for which appellant was charged with sexual assault.3 The same victim’s earlier

interview had already been provided to appellant. Although the second interview took place

on May 20, 2014, it was not provided to the State until January 15, 2015. The State gave

appellant’s counsel a tape of the interview immediately, on January 15, 2015. At the hearing

on the motion for continuance, the parties agreed that both of these interviews were

referenced in the probable-cause affidavit, which both parties had possessed for some time,

and that the substance of those interviews, including direct quotes, was referenced in that

affidavit. The court found that appellant had knowledge of the interview and of the

substance of the interview from the probable-cause affidavit and from the police reports, had

not exercised due diligence in obtaining the DVD of the interview that was readily available


       3
           The jury found him not guilty of this charge.

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months before, and was not prejudiced by having been provided the DVD almost two weeks

before trial. In light of the fact that appellant already had knowledge of the DVD and

knowledge of the substance of the interview in his possession, that the State turned over the

DVD as soon as it received it, and that appellant received the DVD, not on the eve of trial

but almost two weeks before trial, we hold that the trial court did not abuse its discretion in

denying appellant’s motion.

       Appellant’s counsel also argued that he did not have sufficient time to listen to the disc

of all of the jail call logs. The State periodically provided counsel with CDs of calls made by

appellant from the Benton County jail. The motion for continuance concerned a CD of calls

made between November 12, 2014, and January 13, 2015, which was provided on January

13, 2015. The trial court found that the State had provided these call logs in a timely manner,

that the calls were made by appellant, and that he knew that the calls had been recorded.

Thus, the court found, appellant was not prejudiced. We hold that the trial court did not

abuse its discretion, and we fail to see that appellant demonstrated prejudice that amounted

to a denial of justice.

       Affirmed.

       GLOVER and BROWN, JJ., agree.

       Justin B. Hurst, for appellant.

       Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.




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