Morales v. State , 2013 Ark. App. 555 ( 2013 )

Cite as 2013 Ark. App. 555ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-13-295
Opinion Delivered October 2, 2013
HECTOR MORALES APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
APPELLANT WESTERN DISTRICT
[NO. CR-2012-814]
V.
HONORABLE BRENT DAVIS,
STATE OF ARKANSAS JUDGE
APPELLEE AFFIRMED
RHONDA K. WOOD, Judge
At a bench trial, the Circuit Court of Craighead County found the appellant
Hector Morales guilty of sexual indecency with a child. On appeal, Morales challenges
only the sufficiency of the evidence supporting the conviction. Specifically, he claims that
because he met his burden of proof as to an affirmative defense established by statute, the
case should be reversed. We disagree and affirm the conviction.
A motion to dismiss in a bench trial, identical to a motion for a directed verdict in
a jury trial, is a challenge to the sufficiency of the evidence. Stewart v. State, 362 Ark. 400,
208 S.W.3d 768 (2005). On appeal, this court reviews the evidence in the light most
favorable to the State, considering only the evidence that supports the conviction. Spight
v. State, 101 Ark. App. 400, 278 S.W.3d 599 (2008). Because a criminal defendant’s
intent can seldom be proven by direct evidence, it must usually be inferred from the
Cite as 2013 Ark. App. 555circumstances surrounding the crime. Id. The fact-finder is allowed to draw upon his or
her common knowledge and experience, and it is presumed that a person intends the
natural and probable consequences of his or her acts. Id.On appeal, Morales argues that his conviction was not supported by the evidence
because he believed the victim, who was fourteen at the time of the incident, was twenty-
four. Arkansas Code Annotated section 5-14-110(a)(1) (Supp. 2011) provides that a
person commits sexual indecency with a child if, being eighteen years of age or older, the
person solicits another person who is less than fifteen years of age or who is represented to
be less than fifteen years of age to engage in sexual intercourse, deviate sexual activity, or
sexual contact. Arkansas Code Annotated section 5-14-102(d)(1) provides that, when the
criminality of conduct depends on the victim’s “being below a critical age older than
fourteen years, it is an affirmative defense that the actor reasonably believed the child to be
of the critical age or above.” It is appellant’s burden to prove the affirmative defense by a
preponderance of the evidence. Wright v. State, 98 Ark. App. 271, 254 S.W.3d 755(2007). The question of which way the evidence preponderates is for the fact-finder to
decide. Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992).
At trial, the victim D.R. testified that on the evening of the incident, he went to a
movie at the Malco theatre in Jonesboro. He left during the movie to buy a soft drink
from a convenience store nearby, and when he returned to the theatre, he walked to the
dumpsters behind it to throw away his drink container and smoke a cigarette. D.R.
testified that while he was near the dumpsters, Morales approached him, asking D.R. if he
“wanted to go around here and do it” and if he “went both ways,” and telling D.R. that
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Cite as 2013 Ark. App. 555he was “really cute.” Morales testified that he thought D.R. was twenty-four years old
because he was smoking a cigarette. Officer Smith, who responded to the theatre the
night of the incident, described D.R. as being, at that time, a young boy who was thin
and short. The trial judge, with his distinct advantage of seeing D.R. in court, stated that
it was not reasonable for appellant to believe that D.R. was over the age of fifteen.
Based on this evidence, it is reasonable that a fact-finder could conclude that
Morales did not prove his affirmative defense by a preponderance of the evidence. As
such, the trial court did not err in its denial of Morales’s motion to dismiss, and the
conviction is affirmed.
Affirmed.
GRUBER and HIXSON, JJ., agree.
Terry Goodwin Jones, for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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