                                          2015 Ark. 30



                SUPREME COURT OF ARKANSAS
                                         No.   CR-14-489


 SAMUEL HARTMAN                                    Opinion Delivered   January 29, 2015
                              APPELLANT
                                                   APPEAL FROM THE FRANKLIN
 V.                                                COUNTY CIRCUIT COURT
                                                   [NO. CR-13-81]
 STATE OF ARKANSAS
                                APPELLEE HONORABLE WILLIAM PEARSON,
                                         JUDGE

                                                   AFFIRMED IN PART; REVERSED
                                                   AND DISMISSED IN PART.


                       RHONDA K. WOOD, Associate Justice

       Samuel Hartman appeals his convictions for rape and tampering with physical

evidence.1 He argues that substantial evidence does not support the convictions. He also

contends that the circuit court erred when it failed to remove a juror with ties to the rape

victim’s family and failed to give a lesser-included-offense jury instruction for the rape

charge. We affirm on all points except for the tampering-with-physical-evidence

conviction, which we reverse and dismiss.

                                    I.          Background Facts

       Samuel Hartman’s stepdaughter, E.R., told her mother that Hartman had touched

her genitals. E.R. was nine-years old at the time. Her mother decided to take E.R. to a

forensic psychologist for an interview. Hartman found out about the interview and



       1
        Hartman was also convicted of interfering with an emergency communication,
but he has not appealed that conviction.
                                        2015 Ark. 30


became upset. A fight ensued. E.R. ran to a neighbor’s house for help, and the neighbor

called the police.

       After the police arrived, Hartman agreed to go to the police station for an

interview. At the station, Officer Jonathan Little began questioning Hartman and recorded

the interview with a small digital-recording device. Hartman eventually admitted that he

had touched E.R.’s genitals. Officer Little ended the interview, stopped recording, and

stepped out of the room, taking the device with him to allow Hartman to make a phone

call in private.

       While Hartman was on the phone, Officer Little reentered the room, placed the

recording device down, and exited. Officer Little could see Hartman through partially

open mini-blinds and observed Hartman standing up near the device’s location. After

Hartman finished his call, Officer Little came back into his office, turned the recording

device off, and took Hartman to jail.

       Officer Little later noticed there were too many files on the recording device.

Before he interviewed Hartman, there were five files on the device. The interview should

have been file six, and Hartman’s phone call should have been file seven. Instead, nine files

were on the device. After further investigation, Officer Little discovered that his original

interview with Hartman was not one of the nine extant files.

       The case proceeded to a jury trial. There, E.R. testified that Hartman had

penetrated her. Further, Officer Little recounted both Hartman’s confession and the

events following, including his discovery of the missing and added files to the recording

device. At the end of the trial, the jury convicted Hartman of rape and tampering with

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physical evidence. Hartman was sentenced to life in prison for the rape conviction and six

years in prison for the tampering-with-physical-evidence conviction. The court ruled that

the sentences would run concurrently.

                                   II.    The Rape Conviction

       Hartman argues that his rape conviction is not supported by substantial evidence

and that the circuit court erred when it denied his directed-verdict motions. Specifically,

he argues that the victim, E.R., gave inconsistent statements to her mother and a forensic

psychologist, that E.R. had a motive to lie, and that no physical findings backed up E.R.’s

testimony that penetration had occurred. However, Hartman’s directed-verdict motions

did not raise these specific arguments, and these issues are not preserved for review.

       Arkansas Rule of Criminal Procedure 33.1 provides the requirements for making a

directed-verdict motion:

       (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 in subsections (a) and (b) 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.

Ark. R. Crim. P. 33.1(a), (c) (2014). In order to preserve for appeal a court’s decision on a

directed-verdict motion, the issue must be stated clearly and specifically to the circuit

court. Pinell v. State, 364 Ark. 353, 219 S.W.3d 168 (2005). One reason for the specificity
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requirement is to allow the State, if justice requires, to reopen its case to present the

missing proof; another reason is to ensure that this court does not decide an issue for the

first time on appeal. Id.

       Here, Hartman’s defense counsel made the following directed-verdict motion at

the close of the State’s case-in-chief:

       DEFENSE COUNSEL:              First off, concerning the charge of rape, although I
                                     think maybe the State has—may have made a prima
                                     facie case for a lesser[-included offense], I do not
                                     believe they have met the burden on the rape charge—
                                     concerning the charge of rape and the elements
                                     thereof.

Defense counsel also renewed the directed-verdict motion following the close of all the

evidence:

       DEFENSE COUNSEL:              Now coming to the issue of rape. Although the rape
                                     statute is a little more broad under—for sexual
                                     intercourse and deviate sexual activity, the State has
                                     argued throughout the case under deviate sexual
                                     activity. For that reason I believe that the State, at best,
                                     may have made again a sexual contact thing but—and I
                                     know that the Court has got the issue concerning our
                                     Supreme Court has addressed the issues of the over-
                                     broadness and vagueness perhaps of the deviate—
                                     definition of deviate activity here; but I believe that the
                                     State has not met its burden in showing that the actions
                                     of our client meet the deviate sexual activity.

Neither of these motions made the specific arguments that Hartman now pursues on

appeal. Because these arguments were never raised to the circuit court, Hartman’s

argument is not preserved for our review. See Williamson v. State, 2009 Ark. 568, 350

S.W.3d 787. We therefore affirm the rape conviction.




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                    III.    The Tampering-with-Physical-Evidence Conviction

       Hartman argues that his conviction for tampering with physical evidence is not

supported by substantial evidence and that the court should have granted his directed-

verdict motion. He specifically argues that the State failed to provide evidence that he,

Hartman, ever touched the recording device. We treat a motion for a directed verdict as a

challenge to the sufficiency of the evidence. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459

(2006). When reviewing a challenge to the sufficiency of the evidence, this court assesses

the evidence in the light most favorable to the State and considers only the evidence that

supports the verdict. Gillard v. State, 366 Ark. 217, 234 S.W.3d 310 (2006). We will

affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial

evidence is evidence 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. Green v. State, 2013 Ark. 497, 430 S.W.3d 729.

       Circumstantial evidence may constitute substantial evidence to support a

conviction. Thornton v. State, 2014 Ark. 157, 433 S.W.3d 216. To be substantial, the

circumstantial evidence must exclude every other reasonable hypothesis than that of the

guilt of the accused. Id. Whether circumstantial evidence excludes every other reasonable

hypothesis is usually a question for the jury. Murry v. State, 276 Ark. 372, 635 S.W.2d 237

(1982).

       A person commits the offense of tampering with physical evidence if he alters,

destroys, suppresses, removes, or conceals any record, document, or thing with the

purpose of impairing its verity, legibility, or availability in any official proceeding or

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investigation. Ark. Code Ann. § 5-53-111(a) (Repl. 2005). The offense is a felony if the

person impairs or obstructs the prosecution or defense of a felony. Ark. Code Ann. § 5-

53-111(b)(1).

       Viewing the evidence in the light most favorable to the State, we conclude that the

jury had to speculate to convict Hartman of tampering with physical evidence. There was

no direct evidence that Hartman ever touched the digital recorder. The only evidence to

suggest that Hartman had touched the recording device was Officer Little’s testimony that

the device should have had seven, rather than nine, recordings on it; his testimony that his

interview with Hartman’s confession was missing; and the two audio recordings that were

played to the jury, which suggested that there were two recordings after the confession

instead of only one. All of these things could have resulted from the recorder

malfunctioning. Moreover, Officer Little never testified that he listened to the recording

of the confession before he noticed it was missing. As a result, the evidence failed to

exclude every other reasonable hypothesis, and the jury had to speculate that the

confession was actually properly recorded and later removed, that the device did not

malfunction, and that Hartman deleted and added recordings. Accordingly, substantial

evidence does not support Hartman’s conviction for tampering with physical evidence,

and we reverse and dismiss his felony conviction for that charge.2

                                     IV.    Juror Removal

       Hartman also contends that the circuit court should have removed a juror with ties

to E.R.’s family. At the beginning of the trial’s second day, the defense called a witness
       2
        Hartman separately challenged the felony nature of the charge, a point we decline
to address because we have reversed the underlying conviction.
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who testified that before jury selection started she had seen one of the jurors talking to

E.R.’s great-great-aunt. The great-great-aunt was sworn and testified that she knew the

juror’s family but that the two never discussed the trial during their approximately seven-

minute conversation. Hartman argues that the court erred when it failed to excuse this

juror. We do not reach this argument because Hartman failed to ask the court to remove

the juror.

       After the court heard testimony from the two witnesses regarding the juror’s

relationship with the victim’s family, the court and defense counsel engaged in the

following colloquy:

       DEFENSE COUNSEL:             Well the disparaging thing from the Defense standpoint
                                    is obviously we have put a juror on the panel that
                                    knows that family, the family of the victim; and
                                    obviously if we knew that, we wouldn’t have put him
                                    on the jury.

       THE COURT:                   Well I don’t recall anybody asking in voir dire.

       DEFENSE COUNSEL:             We had one peremptory challenge left, and had we
                                    known his relationship with that family, I would have
                                    utilized that peremptory challenge.
       ....

       THE COURT:                   Well we are not going to go back and conduct another
                                    voir dire on a question you all had an opportunity to
                                    inquire into. Furthermore, I don’t see any prejudice has
                                    been shown here. I just don’t see any.

Once this exchange ended, the court moved on to other matters. At no point did the

defense ask the judge to remove the juror in question. This court has made it clear that it

is up to the appellant to obtain a clear ruling on an issue in order to preserve that point for

appeal. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004). In order to preserve an

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argument for appeal, there must be an objection in the trial court that is sufficient to

apprise that court of the particular error alleged. Love v. State, 324 Ark. 526, 922 S.W.2d

701 (1996); Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995). Hartman failed to ask

for the juror to be removed; therefore, he has waived his right to pursue this argument on

appeal because he never raised a specific error to the court.

                                 V.     Lesser-included Instruction

       Finally, Hartman contends that the circuit court erred when it refused to give his

proffered jury instruction for second-degree sexual assault, which he argues is a lesser-

included offense of rape. A person commits rape if he engages in sexual intercourse or

deviate sexual activity with another person who is less than fourteen (14) years old. Ark.

Code Ann. § 5-14-103(a)(3) (Repl. 2013). A person commits second-degree sexual assault

if he is eighteen (18) years of age or older and engages in sexual contact with another

person who is less than fourteen (14) years of age and not his spouse. Ark. Code Ann. § 5-

14-125(a)(3). Hartman acknowledges that we have rejected the argument that second-

degree sexual assault is a lesser-included offense to rape in two previous cases. Webb v.

State, 2012 Ark. 64; Joyner v. State, 2009 Ark. 168, 303 S.W.3d 54. We reasoned that

second-degree sexual assault is not a lesser-included offense of rape because it requires

proof of two elements that rape does not: the defendant’s age (18 or over) and the

defendant’s marital status (not married to the victim). A conviction for rape does not

require proof of these elements, which means “sexual assault is not ‘established by proof of

the same or less than all of the elements required’ to establish rape.” Joyner, 2009 Ark. 168,

at 12, 303 S.W.3d at 61 (citing Ark. Code Ann. § 5-1-110(b)). Adhering to stare decisis,

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we decline to overrule our settled precedent on this issue. See Brown v. State, 321 Ark.

413, 903 S.W.2d 160 (1995). We hold that the court did not abuse its discretion when it

declined Hartman’s request to include a lesser-included-offense jury instruction.

                                    VI.   Rule 4-3(i) Compliance

       Under Arkansas Supreme Court Rule 4-3(i) (2014), the record has been reviewed

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

prejudicial error has been found.

       Affirmed in part; reversed and dismissed in part.

       James Law Firm, by: William O. “Bill” James, Jr., for appellant.

       Dustin McDaniel, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellee.




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