The opinion
Cite as 2020 Ark. 340
SUPREME COURT OF ARKANSAS
No. CR-20-294
Opinion Delivered: October 22, 2020
DONALD CAPLE
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
V. [NO. 60CR-18-1731]
STATE OF ARKANSAS HONORABLE BARRY A. SIMS, JUDGE
APPELLEE
AFFIRMED.
KAREN R. BAKER, Associate Justice
On December 11, 2019, a Pulaski County Circuit Court jury convicted appellant
Donald Caple of rape and second-degree sexual assault; he was sentenced to life
imprisonment and twenty years’ imprisonment, respectively, and ordered to pay a $15,000
fine. From his conviction and sentence, Caple presents three issues on appeal: (1) there was
insufficient evidence for Caple’s rape conviction; (2) the circuit court abused its discretion
by not instructing the jury on the offense of attempted rape; and (3) the circuit court abused
its discretion by allowing a witness to testify at sentencing about child-abuse statistics. We
have jurisdiction over this case pursuant to Arkansas Supreme Court Rule 1-2(a)(2). We
affirm.
On May 15, 2018, Caple was charged with one count of rape and one count of
second-degree sexual assault of his granddaughter, L.H., beginning when she was four years
old until she was eleven years old.
At trial, the State called the following witnesses. Rhonda McBain, Caple’s daughter,
testified that L.H. is her daughter.1 McBain testified that on February 28, 2018, she received
a call from L.H.’s school and was told that she needed to come to the school immediately to
discuss information L.H. had disclosed to the counselor that could not be shared over the
phone. McBain testified that she and her husband went to the school immediately, and the
counselor explained that L.H. had disclosed that Caple had been sexually assaulting her. At
trial, McBain testified that prior to marrying her husband, she was a single parent, having
been divorced since 2008, with two young children and a full-time job. McBain testified that
her parents moved back to Arkansas from Saudi Arabia in 2010 when L.H. was four, and
they began to babysit her children at that time. She testified that Caple often babysat her
children, L.H. and her brother J.H., throughout the year but especially during the summer
months because she worked full time and could not afford child-care. McBain testified that
Caple babysat in excess of one hundred days per year. McBain further testified that Caple,
not McBain’s mother, cared for her children as her mother was not “very friendly with kids
. . . and [Caple] was much more hands-on taking the kids out to do activities . . . so he was
much more the babysitter than she was.” McBain testified that as L.H. got older, she noticed
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L.H. was born on March 28, 2006.
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that L.H. was less interested in going over to Caple’s home but “she didn’t know why. I know
with her schoolwork when she started sixth grade, I noticed her grades started dropping and
I talked to the school counselor about that.” McBain further testified that she also noticed
that Caple was a lot closer to L.H. than to J.H. and favored L.H.
L.H. testified that Caple babysat L.H. and her brother often, beginning in 2010. L.H.
testified that Caple began sexually abusing her at that same time, when she was four years
old. She testified that also when she was four years old, she heard the word sex at school and
asked Caple what the word meant. L.H. testified that Caple explained to her the meaning of
the word and showed her pornography on her grandmother’s laptop computer. She testified
that he showed her pornography multiple times, and while they watched, the two were naked
and Caple would touch her in her private areas. L.H. testified that Caple used his hands,
mouth, and penis to touch her. L.H. testified that Caple touched her many times on her
inner and outer folds and her “hole area.” L.H testified that Caple would use his hand and
rub her vagina. She further testified that Caple used his mouth and put his tongue in her
“hole area.” L.H. testified that it hurt when Caple touched her and he touched her “many,
many times, about every time he babysat.” L.H. testified that when she was in sixth grade,
Caple lubricated his penis with Vaseline and put his penis in her vagina; she asked him to
stop, but he continued and put a little bit of his penis in her vagina and then stopped. L.H.
testified that white liquid came out of Caple’s penis, and he put the liquid in a small towel.
L.H. further testified that Caple told her she could not tell anyone or he would go to jail.
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L.H. testified that she saw a YouTube post about a celebrity sharing a personal story, and
that gave her the courage to tell her school counselor about the abuse.
Dr. Karen Farst, a pediatrician at Arkansas Children’s Hospital, testified that she
specializes in child-abuse cases and that she conducted an examination of L.H. Dr. Farst
testified that in her examination, she did not find any physical findings of sexual abuse. Dr.
Farst testified that it is common to not observe physical findings in sexual-abuse cases because
the skin in the genital area heals quickly and also sexual contact may not have caused a
physical injury. Dr. Farst used a diagram and testified to the anatomy of the female genital
area.
Detective Eric Barnes of the Little Rock Police Department testified that he was
assigned to L.H.’s case and observed L.H.’s statement as it was provided to Lisette Yang with
the Children’s Protection Center at Arkansas Children’s Hospital. Detective Barnes further
testified that on March 15, 2018, he interviewed Caple. In the interview, Caple admitted
that he began touching L.H. when she was four years old after she walked in on Caple
masturbating while he was watching pornography and began asking Caple what he was
doing. Caple admitted touching L.H. and her vagina with his hands and mouth but denied
inserting his penis into L.H.’s vagina. Caple stated that while naked, the two watched
pornography together and he would touch L.H. Caple testified to touching L.H. multiple
times over a number of years.
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Caple testified in his own defense. Caple stated that he agreed with L.H.’s testimony;
however, he testified that he did not penetrate her mouth or vagina with his penis. Caple
testified that otherwise, L.H.’s testimony was accurate.
Based on the facts above, Caple was convicted of rape and second-degree sexual
assault and sentenced as described above. This appeal followed.
I. Points on Appeal
A. Sufficiency of the Evidence
For his first point on appeal, Caple contends that the circuit court erred in denying
his motion for directed verdict for Caple’s rape conviction. We treat a motion for a directed
verdict as a challenge to the sufficiency of the evidence.2 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. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994). Further, circumstantial
evidence may provide a basis to support a conviction, but it must be consistent with the
defendant’s guilt and inconsistent with any other reasonable conclusion. Id. Whether the
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Caple was also convicted of sexual assault in the second degree but does not
challenge the sufficiency of the evidence of this conviction.
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evidence excludes every other reasonable hypothesis is left to the jury to decide. Id. Further,
the credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is
free to believe all or part of any witness’s testimony and may resolve questions of conflicting
testimony and inconsistent evidence. Id. Additionally, “in rape cases, we have held that there
is sufficient evidence to support a conviction if the victim gives ‘a full and detailed accounting
of the defendant’s actions.’ White v. State, 367 Ark. 595, 599, 242 S.W.3d 240, 249 (2006).
Uncorroborated testimony of a rape victim is sufficient evidence to support a conviction.
Inconsistencies in the rape victim’s testimony are matters of credibility that are left for the
jury to resolve. The jury may accept or reject testimony as it sees fit.” Ward v. State, 370 Ark.
398, 400, 260 S.W.3d 292, 294–95 (2007) (internal citations omitted). Finally, “this court
has observed that the State is not required to provide direct proof that an act is done for
sexual gratification if it can be assumed that the desire for sexual gratification is a plausible
reason for the act. Rounsaville v. State, 374 Ark. 356, 360, 288 S.W.3d 213, 216 (2008).” State
v. Coble, 2016 Ark. 114, 4–5, 487 S.W.3d 370, 372–73.
Caple was convicted of one count of rape under Ark. Code Ann. § 5-14-103, which
provides in pertinent part:
(a) A person commits rape if he or she engages in sexual intercourse or deviate sexual
activity with another person:
...
(3)(A) Who is less than fourteen (14) years of age.
Further, Ark. Code Ann. § 5-14-101 provides:
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(1) “Deviate sexual activity” means any act of sexual gratification involving:
(A) The penetration, however slight, of the anus or mouth of a person by
the penis of another person; or
(B) The penetration, however slight, of the labia majora or anus of a person
by any body member or foreign instrument manipulated by another
person[.]
With these standards in mind, we turn to Caple’s challenge to the sufficiency of the
evidence supporting his rape conviction and sentence. Caple contends that the State failed
to prove he committed rape because the State failed to prove that sexual intercourse
occurred; nor did the State prove that deviate sexual activity occurred. Specifically, Caple
contends that the evidence is insufficient to support a finding that Caple penetrated L.H’s
vagina; the evidence is insufficient to support a finding that he penetrated L.H.’s mouth with
his penis; and no deviate sexual activity occurred because there was no evidence of sexual
gratification. In sum, Caple contends that L.H.’s testimony supports that Caple never
penetrated her vagina and Caple’s testimony that he had never penetrated L.H.’s mouth or
vagina support his position that the State failed to prove that Caple ever engaged in sexual
intercourse or deviate sexual activity with L.H. The State responds that Caple failed to
preserve the issue for review and also that his argument lacks merit, asserting that L.H.’s
testimony alone provides substantial evidence to support the conviction.
Here, the evidence demonstrates that L.H. testified that Caple touched the inside and
outside of the folds of her vagina with his hands, his mouth, and his penis. She further
testified that Caple went past the inner folds and put his penis into the opening of her
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vagina. L.H. testified that Caple obtained Vaseline from Caple’s wife, L.H.’s grandmother,
and used it as a lubricant and went in “a little bit and then stopped.” L.H. also testified that
Caple put his penis inside her mouth, that he asked her to lick his penis, and that she “went
up and down.” Also, L.H. testified to Caple’s ejaculating and using a towel to put the white
liquid in when this occurred. Further, in his statement to law enforcement, Caple said that
he rubbed L.H.’s clitoris and that “[he] would touch her vaginally and stimulate her.” In this
case, based on L.H.’s testimony, the hand, mouth, and penis contact establishes the necessary
degree of penetration. L.H. testified that Caple would use his hand and rub her vagina, and
Caple testified that he rubbed L.H.’s clitoris and that “[he] would touch her vaginally and
stimulate her.” With regard to Caple’s penis, L.H. testified that he lubricated his penis with
Vaseline and put his penis into her vagina “a little bit.” L.H. also testified that Caple put his
penis inside her mouth, that he asked her to lick his penis and that she “went up and down.”
Accordingly, based on this record, in viewing the testimony in the light most favorable to
the jury’s verdict, we hold that substantial evidence supports the jury’s conclusion that Caple
committed rape, and we affirm the circuit court.
B. Attempted-Rape Jury Instruction
For his second point on appeal, Caple contends that the circuit court erred when it
refused to give a jury instruction on attempted rape. Caple asserts that he was entitled to an
attempted-rape instruction because L.H. testified that Caple attempted to penetrate her
vagina with his penis when he went in “a little bit” and then stopped. Caple contends that
L.H.’s testimony created a rational basis for the instruction. The State responds that Caple
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presented an all-or-nothing defense as he denied any penetration and therefore was not
entitled to the attempted-rape instruction.
The test for whether an instruction should be given is whether there is the slightest
evidence to support the instruction and whether there is no rational basis for giving the
instruction. Morris v. State, 351 Ark. 426, 432, 94 S.W.3d 913, 917 (2003). Accordingly, in
reviewing whether slight evidence or a rational basis exists for giving the instructions, the
court considered what evidence Caple could have relied on as a rational basis to support
giving the instruction. Caple must point to evidence in the record to support a finding that
he attempted to commit the offense of rape. See Flowers v. State, 362 Ark. 193, 213, 208
S.W.3d 113, 129 (2005). On review, “a party is entitled to a jury instruction when it is a
correct statement of the law and when there is some basis in the evidence to support giving
the instruction. Barnes v. Everett, 351 Ark. 479, 492, 95 S.W.3d 740, 748 (2003). The circuit
court’s decision to give or reject an instruction will not be reversed unless the court abused
its discretion. Dodson v. Allstate Ins. Co., 345 Ark. 430, 459, 47 S.W.3d 866, 885 (2001).”
Hundley v. State, 2020 Ark. 89, 3, 594 S.W.3d 60, 61–62.
At trial, Caple proffered an instruction regarding the offense of attempted rape,
which stated in pertinent part:
To sustain the charge of attempted rape the State must prove the following
things beyond a reasonable doubt:
First: That Donald Caple intended to commit the offense of rape;
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Second: That Donald Caple purposely engaged in conduct that was a
substantial step in a course of conduct intended to culminate in the
commission of rape; and
Third: That Donald Caple’s conduct was strongly corroborative of the
criminal purpose.
Caple contends that he was entitled to this instruction, and the circuit court erred in
refusing to give the instruction. Caple points to his own testimony that he did not penetrate
L.H.’s mouth or vagina with his penis as evidence that would support that he attempted to
commit rape. However, the credibility of witnesses is an issue for the jury and not the court.
Ricks, 316 Ark. 601, 873 S.W.2d 808. The trier of fact is free to believe all or part of any
witness’s testimony and may resolve questions of conflicting testimony and inconsistent
evidence. Id. In this case, the jury was presented evidence that Caple put his penis inside
L.H.’s vagina; specifically, a little bit of Caple’s penis went into her vagina. Further, she
testified that Caple put his penis inside her mouth. Caple on the other hand, repeatedly
stated to law enforcement that “penetration anything of that nature . . . no. None of that
[occurred].”—“I’ve never penetrated her.” Further, Caple testified at trial that he did not
penetrate L.H.’s vagina or mouth with his penis. In sum, Caple testified that he drew the
line at penetration and did not penetrate L.H. However, Caple also testified that he put his
hand in her vagina, which does not support giving the attempted rape instruction. Here,
given Caple’s defense of complete denial of penetration, we hold that the circuit court did
not abuse its discretion by not giving instructions on the offense of attempted rape.
C. Sentencing Phase
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For his third point on appeal, Caple contends that during the sentencing phase, the
circuit court erred by allowing McBain to testify to statistics as an expert witness. During
sentencing, McBain testified that she had written a letter expressing how the offense had
affected her family and read it to the jury. The following exchange occurred while McBain
was reading her letter to the jury:
MCBAIN: His choices have affected my daughter and myself in ways that
are full of grief and hurt and betrayal. The pain of a parent
watching your child suffer every day is indescribable. My only
hope and silver lining through all of this is that I can serve not
only as her parent to help her heal and move forward, but to
become an advocate for thousands of other children in our
state who suffer through child abuse every day. One of the
most important lessons I’ve learned, among so many others
these last two years, is the statistics I have learned through my
work at Arkansas Children’s, close to 10,000 children –
DEFENSE COUNSEL: Your Honor, I object. May we approach?
THE COURT: Yes.
(BENCH CONFERENCE:)
THE COURT: Go ahead.
DEFENSE COUNSEL: Your Honor, I mean, this is not victim impact, quotes, and I
object to it.
THE COURT: It’s closing.
DEFENSE COUNSEL: Huh?
THE COURT: It’s closing.
DEFENSE COUNSEL: Well, it’s not closing. This is victim impact, and I object to her
quoting statistics.
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THE COURT: Okay. It’s fine. She can do this. Thank you.
(IN OPEN COURT:)
THE COURT: Go ahead, ma’am.
(Witness continuing:)
MCBAIN: Thank you. The statistics I have learned through my work at
Arkansas Children’s, close to 10,000 children each year report
child abuse in Arkansas. However, research shows that these
are only the reported cases; and that two-thirds of child abuse
cases go unreported. That means that there are so many other
children like my daughter who are afraid to speak up. It will
be my mission as a parent of a survivor to advocate for her and
children like her to become educated and learn that it is okay
to report things immediately because research has also shown
that it is most often someone the family knows very well.
I take the solace and the solace that justice will be served as my
daughter and I continue to move forward and try to heal from
all of this. I am and always will continue to try and stay helpful
and move forward. Thank you all very much for listening to
me, and thank you for your time.
Caple argues that McBain was not qualified as an expert witness; rather, she was
testifying as a lay witness whose testimony should have been limited to opinions or inferences
that were rationally based on her perceptions and helpful to a clear understanding of her
testimony. Caple contends that by testifying to specific statistics regarding sexual abuse in
Arkansas, McBain provided testimony that was outside her opinions or inferences based on
her perceptions in this case and was unduly prejudicial to him. The State responds that
because Caple failed to make a specific objection at trial as to why he objected, Caple now
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raises the issue for the first time on appeal and is barred from doing so. The State further
responds that Caple’s argument lacks merit and that any error was harmless.
With regard to victim-impact evidence, Ark. Code Ann. § 16-97-103 provides in
pertinent part: “Evidence relevant to sentencing by either the court or a jury may include,
but is not limited to, the following . . . (4) Victim impact evidence or statements.” “Evidence
presented under § 16-97-103 is intended to be used to give the sentencer, whether the trial
judge or the jury, all evidence relevant to sentencing.” Hunter v. State, 341 Ark. 665, 670, 19
S.W.3d 607, 610 (2000) (internal citations omitted). Further, “this court has made clear that
the rules of evidence apply to evidence introduced at the sentencing phase; however,
pursuant to section 16-97-103, certain evidence is admissible at sentencing that would not
have been admissible at the guilt phase of the trial. Finally, a circuit court’s decision to admit
evidence in the penalty phase of a trial is reviewed for an abuse of discretion.” Brown v. State,
2010 Ark. 420, at 12, 378 S.W.3d 66, 73 (internal citations omitted).
Here, we note that Caple did not object at trial that McBain’s testimony was unduly
prejudicial because McBain was not a qualified expert. Despite this, Caple argues that the
circuit court erred in allowing expert testimony from McBain, and Caple was unable to cross-
examine McBain in violation of his due-process rights. Further, Caple argues that McBain’s
testimony went beyond the impact this case had on the victim and her family by including
her knowledge of thousands of other cases in Arkansas and “could serve to inflame the jury.”
Upon review, we do not find merit in this argument. Caple failed to make this specific
argument below. Further, in the record before us, McBain and L.H. both testified that L.H.
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suffered from complex PTSD. McBain testified that her father’s abuse of her daughter had
caused tremendous suffering to her family and “our world has been rocked to the very core.”
McBain testified that her mission as a parent of a survivor was to advocate for children like
her daughter that were afraid to speak up. Accordingly, McBain’s testimony was relevant to
show the impact the offense had on her family and was relevant to sentencing. Therefore,
based on our discussion above, we affirm the circuit court on this point.
II. Rule 4-3(i) Review
This case involves a sentence of life imprisonment; therefore, it is subject to review
under Arkansas Supreme Court Rule 4-3(i). As required under Rule 4-3(i), the record has
been examined for all objections, motions, and requests made by either party that were
decided adversely to Caple, and no prejudicial error has been found.
Affirmed.
HART, J., concurs in part; dissents in part.
JOSEPHINE LINKER HART, Justice, concurring in part and dissenting in part. I agree
that the evidence is sufficient to support the conviction, but I disagree that witness McBain’s
testimony about statistics was acceptable victim-impact evidence during the penalty phase of
trial. Caple correctly objected to this specific testimony below, and the circuit court’s
generalization that “this is closing” did nothing to resolve the problem. This was not closing
argument—McBain was the first of two State witnesses to offer testimonial evidence during
the penalty phase of Caple’s rape trial.
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Arkansas Code Annotated section 16-97-103(4) provides that the State may offer
“victim impact evidence or statements” as evidence “relevant to sentencing” during the
penalty phase of trial. In Kitchell v. State, this court discussed the contours of proper victim-
impact evidence as follows:
Further, the State’s assertion that this was relevant victim-impact evidence is
also incorrect. Arkansas Code Annotated section 16-90-1112(a)(1) (Supp.
2019) provides that the victim shall be permitted to present a victim-impact
statement “concerning the effects of the crime on the victim, the circumstances
surrounding the crime, and the manner in which the crime was perpetrated.”
Evidence regarding the effect on the victim’s family from a previous sentence
that has later been overturned does not fit within any of these categories.
We have reversed a defendant’s sentence when improper victim-impact was
admitted. In Miller v. State, 2010 Ark. 1, 362 S.W.3d 264, we held that
reversible error had occurred when the circuit court allowed two of the victim’s
family members to tell the jury that they believed the appropriate punishment
for the crimes was death. We noted that this evidence was irrelevant to the
jury’s decision on punishment. Id. In addition, in Walls v. State, 336 Ark. 490,
986 S.W.2d 397 (1999), this court reversed and remanded for resentencing
because evidence of another crime was erroneously admitted as victim-impact
evidence; we held that the evidence was clearly not relevant and was unduly
prejudicial. See also Rush v. State, 324 Ark. 147, 919 S.W.2d 933 (1996)
(reversing and remanding for resentencing where prior victim of crime was
allowed to testify).
2020 Ark. 102, at 8–9, 594 S.W.3d 848, 853 (internal citations included).
More basically, evidence offered in either the guilt or penalty phase of trial must satisfy
the rules of evidence. See Buckley v. State, 341 Ark. 864, 874, 20 S.W.3d 331 (2000) (“The
introduction of evidence during [the penalty phase] must be governed by our rules of
admissibility and exclusion; otherwise, these proceedings would not pass constitutional
muster[.]”). This would include Arkansas Rules of Evidence 401 and 402—together, these
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rules require evidence to be relevant to any fact of consequence to the determination of the
action before it is considered admissible. See Ark. R. Evid. 401, 402.
With all due respect to witness McBain, her testimony alleging statistics about sex
crimes in Arkansas had nothing to do with the crime at hand or its impact on any victim of
that crime. It simply was not relevant to the sentence Caple should receive for this charge,
i.e., it was not victim-impact evidence. Furthermore, McBain’s specific testimony about two-
thirds of those crimes going unreported tended to invite the jury to punish Caple for those
entirely unrelated crimes. See Walls, supra. Witness McBain’s testimony about statistics was
not proper victim-impact evidence, and the circuit court’s decision to the contrary was
erroneous.
Concurring in part; dissenting in part.
James Law Firm, by: Nickolas W. Dunn and William O. “Bill” James, Jr., for appellant.
Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.
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