Ark. Code Ann. § 5-14-125 (2026)

Research References

ALR.

Sufficiency of Allegations or Evidence of Serious Bodily Injury to Support Charge of Aggravated Degree of Rape, Sodomy, or Other Sexual Abuse. 103 A.L.R.6th 507 (2015).

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Criminal Law, Sexual Offenses, 26 U. Ark. Little Rock L. Rev. 372.

Case Notes

Constitutionality.

Defendant did not meet his burden of proving that this section was void for vagueness because he admitted to molesting the victim, his actions toward the victim fell within the conduct proscribed by this section and, under the plain meaning of the term, “temporary caretaker,” defendant was given sufficient warning under the language of the statute of the prohibited conduct, particularly because he was an adult in charge of the victim's care when he sexually assaulted her. Bowker v. State, 363 Ark. 345, 214 S.W.3d 243 (2005).

Subdivision (a)(6) of this section, as applied to a high school teacher who engaged in a consensual sexual relationship with an 18-year-old student, who was an adult under § 9-25-101(a), infringed on the teacher's fundamental right to privacy and was not the least restrictive method available for the promotion of the state's interest; therefore, it was unconstitutional. Paschal v. State, 2012 Ark. 127, 388 S.W.3d 429 (2012).

Applicability.

Trial court did not err during defendant's trial in refusing to instruct a jury on the lesser offense of sexual assault in the second degree, in violation of subdivisions (a)(3)(A)-(B) of this section, on one count of rape, in violation of § 5-14-103(a)(3)(A), because sexual assault was not established by proof of the same or less than all of the elements required to establish rape, as required by § 5-1-110(b) to be a lesser-included offense. Joyner v. State, 2009 Ark. 168, 303 S.W.3d 54, cert. denied, 558 U.S. 1047, 130 S. Ct. 736, 175 L. Ed. 2d 514 (2009).

Defendant was not entitled to a bill of particulars, pursuant to § 16-85-301(a); a bill of particulars as to the precise time offenses were committed was not necessary because time was not material to allegations of rape, under § 5-14-103, and sexual assault in the second degree, under this section. Wallis v. State, 2010 Ark. App. 238, 374 S.W.3d 737 (2010).

In a family doctor's trial on two counts of second-degree sexual abuse, violations of this section, there was sufficient evidence that defendant used forcible compulsion to perpetrate the crimes where in each victim's sexual assault, there was forcible compulsion in the form of physical force or the threat of physical injury separate from the touching required for sexual contact. Arendall v. State, 2010 Ark. App. 358, 377 S.W.3d 404 (2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 367 (June 24, 2010).

Trial court did not abuse its discretion in denying defendant's post-trial request for a sentence reduction pursuant to § 16-90-107(e) because defendant's 20-year sentence for second degree sexual assault, in violation of this section, fell within the statutory range. Brown v. State, 2010 Ark. 420, 378 S.W.3d 66 (2010).

In a case in which defendant was convicted of four counts of sexual assault of a minor, defendant fulfilled the role of temporary caretaker or person in a position of trust or authority under both § 5-14-124 and this section, as defendant was in a position to care for the victim while the victim was staying overnight in defendant's home. Nelson v. State, 2011 Ark. 429, 384 S.W.3d 534 (2011).

Age of Victim.

—Appellate Review.

Defendant preserved a sufficiency of the evidence argument for the lesser-included offense of sexual assault in the second degree when an argument was raised to challenge the state's case based on a failure to show forcible compulsion; the original charge was attempted rape. Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005).

Where defendant was convicted of first-degree sexual abuse under § 5-14-108(a)(4) (repealed) for sexually assaulting a child under the age of 14, knowledge, or even a reasonable belief of the victim's age, was eliminated as a defense by § 5-14-102(b); accordingly, the state was not required to prove defendant's knowledge of the victim's age. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002).

Defendant's conviction as an accomplice to one count of second-degree sexual assault was proper as there was no doubt that defendant was aware that two men who had resided with her raped and assaulted her daughter at various times when the girl was between eight or nine and 15 years of age, yet defendant concealed her knowledge of the acts and failed to protect her daughter. Hutcheson v. State, 92 Ark. App. 307, 213 S.W.3d 25 (2005).

Applicability.

Defendant was convicted under § 5-14-125 for second-degree sexual assault, which was not in effect at the time his crime was committed, after he was found guilty under a repealed statute for first-degree sexual assault, former § 5-14-108, which the appellate court found was prejudicial to him and a violation of due process because the statutes did not proscribe the same conduct. Cousins v. State, 82 Ark. App. 84, 112 S.W.3d 373 (2003).

Appellate Review.

Defendant's second-degree sexual assault conviction, pursuant to subdivision (a)(3) of this section, was proper because defendant's argument that the state failed to offer proof that defendant touched the victim for the purpose of obtaining sexual gratification was not raised below. Ross v. State, 2010 Ark. App. 129 (2010).

Credibility arguments relating to a conviction for second-degree sexual assault were not preserved for appellate review because appellant presented different arguments at the trial court level; appellant argued that the charge was a lesser-included offense of rape and that the element of sexual gratification was not proven. Arguments not raised at trial were not addressed for the first time on appeal, and appellant was not able to change the grounds for his directed verdict motion on appeal. Clayton v. State, 2012 Ark. App. 199 (2012), appeal dismissed, 2013 Ark. 453 (2013).

Defendant did not preserve a sufficiency of the evidence challenge because defendant's trial court argument was based on whether an element of rape was proved, but defendant was convicted of the lesser-included offense of second-degree sexual assault; and defendant failed to move for a directed verdict on second-degree sexual assault either by name or by a specific element of the offense. King v. State, 2018 Ark. App. 309 (2018).

Juvenile's challenge to the sufficiency of the evidence supporting the finding that he committed second-degree sexual assault was not preserved because in making his motion for dismissal, he did not advise the trial court of the element of the offense that the State failed to prove; in any event, the State sufficiently proved forcible compulsion where the victim testified that the juvenile shoved her against the wall and put one hand on her shoulder and one hand down her pants while she kept telling him to stop. P.J. v. State, 2019 Ark. App. 315, 578 S.W.3d 307 (2019).

Cross-Examination.

Because the circuit court erred by not conducting an in camera review of the alleged sexual assault victim's Department of Human Services file to determine if it contained information material to the defense concerning the victim's accusations against her biological father, which were later recanted, remand for further proceedings was necessary for the court to conduct an in camera review of the file. If the file contained information that probably would have changed the outcome of the trial, defendant was to receive a new trial unless the nondisclosure was harmless beyond a reasonable doubt. Taffner v. State, 2018 Ark. 99, 541 S.W.3d 430 (2018).

Directed Verdict.

Defendant was charged with second-degree sexual assault but convicted of the lesser-included offense of attempted second-degree sexual assault and his sufficiency argument was not preserved for review; defendant's directed-verdict motion, which the trial court denied, pertained to the completed offense of second-degree sexual assault, and not its attempt, and to the extent the “mens rea” argument was even preserved, the jury could assume that defendant's purposeful acts of touching the 16-year-old victim's vagina and attempting to lift her shirt, combined with the questions he was asking her, were attempts to have sexual contact with her for his sexual gratification. Perea v. State, 2019 Ark. App. 426, 586 S.W.3d 690 (2019).

Evidence.

Where victim testified that defendant stopped her as she was leaving church, persuaded her to return to the church to retrieve an item, and tried to rape her, there was sufficient evidence to support a conviction under this section; moreover, there was testimony from other church members that defendant was acting strangely prior to the attack. Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005).

Trial court correctly denied defendant's motion for a directed verdict on the charges of rape and first-degree violation of a minor where the evidence clearly demonstrated that defendant occupied a position of trust or authority over the victim during the time that he lived with her and her mother; defendant had repeatedly disciplined the victim and she considered him to be her father. Martin v. State, 354 Ark. 289, 119 S.W.3d 504 (2003).

Evidence was sufficient to sustain a second-degree sexual assault conviction where defendant digitally penetrated the 15 year old victim while the victim was entrusted to defendant's care. Bowker v. State, 363 Ark. 345, 214 S.W.3d 243 (2005).

Evidence was sufficient to support defendant's conviction for second-degree sexual assault where the victim and a witness both testified that defendant pulled down the victim's pants and was touching her, despite defendant's contention that he was merely examining a bug bite when he removed the clothes. Hull v. State, 96 Ark. App. 280, 241 S.W.3d 302 (2006).

Trial court properly denied defendant's motion for a directed verdict during his trial for sexual assault of his daughter, in violation of subdivision (a)(3) of this section, because the testimony of the victim that defendant “would rub my behind,” and that he put his private part “in my behind,” was substantial evidence to support the guilty verdict. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008).

Where the child victim testified that defendant inappropriately touched her and sexually penetrated her, the evidence was sufficient to support his conviction for second-degree sexual assault under this section. Swaim v. State, 2009 Ark. App. 557 (2009).

Where defendant admitted that he inappropriately touched an eleven-year-old girl while she was sleeping, the jury could infer that his actions were motivated by a desire for sexual gratification. The evidence was sufficient to support his conviction for sexual assault in the second degree in violation of subdivision (a)(3) of this section; the trial court did not err by denying his motion for a directed verdict. Davis v. State, 2009 Ark. App. 753, 386 S.W.3d 647 (2009).

Victim's testimony alone supported appellant's conviction for rape and sexual assault; moreover, the victim's testimony illustrated that there were several different actions of sexual assault and rape—acts that could each be separated in time as involving distinct impulses. Bryant v. State, 2010 Ark. 7, 377 S.W.3d 152 (2010).

Evidence produced by the state at trial was sufficient for the jury to reasonably conclude that, by virtue of the living arrangement, appellant was placed in an apparent position of power or authority over the minor victim and that appellant was thus the victim's guardian for the purposes of subdivision (a)(4)(A)(iii) of this section and §§ 5-14-103(a)(4)(A)(i) and 5-14-101(3), thus the jury verdict was supported by substantial evidence. Pack v. State, 2010 Ark. App. 82 (2010).

To support a second-degree sexual assault conviction, pursuant to subdivision (a)(3) of this section, the state did not have to provide direct proof that the act was done for sexual gratification because it could be assumed that the desire for sexual gratification was a plausible reason for sexual contact, as defined by § 5-14-101(10). Ross v. State, 2010 Ark. App. 129 (2010).

In a case in which defendant appealed his conviction for sexual assault in the second degree, in violation of subdivision (a)(4)(A)(iii) of this section, he argued unsuccessfully that the trial court erred in denying his motion for a directed verdict. The victim's testimony alone was sufficient to support defendant's conviction, and the jury was not required to believe defendant's testimony that he had not touched the victim's breast. Chavez v. State, 2010 Ark. App. 161 (2010).

In a case in which defendant appealed his conviction for sexual assault in the second degree, in violation of subdivision (a)(4)(A)(iii) of this section, he complained that a transcript of his interview at the police department was obtained with the assistance of a translator who was not certified by the Administrative Office of the Courts and was admitted into evidence in violation of Ark. R. Evid. 1009. While it was true that the translation was not made by a qualified translator as set forth in Rule 1009, and defendant objected on that basis, he did not object to the admission of the transcript at trial; in fact, his attorney stipulated at trial that the transcript reflected the interview; furthermore, the victim's testimony alone is sufficient to support defendant's conviction. Chavez v. State, 2010 Ark. App. 161 (2010).

Conviction for sexual assault in the second degree for violating subdivision (a)(3) of this section was supported by sufficient evidence because it was at least plausible that defendant's act of touching the victim's vaginal area with his foot, after which he ordered her not to tell anyone and later wrote a letter of apology, was done for the purpose of sexual gratification. Elliott v. State, 2010 Ark. App. 185 (2010).

Despite the large amount of time between the events giving rise to a witness's testimony and defendant's trial for second degree sexual assault, in violation of this section, evidence about an alleged sexual assault occurring 34 years prior was relevant to defendant's character and as an aggravating circumstance under § 16-97-103. Brown v. State, 2010 Ark. 420, 378 S.W.3d 66 (2010).

Eight-year-old victim's testimony alone was sufficient evidence to support defendant's conviction for second degree sexual assault in violation of this section. The victim's parents and a police detective also told the jury that the victim had recounted the same information to them. To the extent there were inconsistencies in the victim's testimony, or that of other state witnesses, it was a matter of credibility and was for the jury to decide. Brown v. State, 2010 Ark. 420, 378 S.W.3d 66 (2010).

There was sufficient evidence for a jury to convict defendant of first-degree sexual abuse. The state proved sexual contact through the victim's testimony that defendant rubbed his penis on her vagina. Estrada v. State, 2011 Ark. 3, 376 S.W.3d 395 (2011).

Because an eight-year-old child victim's testimony was enough to support a conviction, there was sufficient evidence to support defendant's convictions for sexual indecency with a child and second-degree sexual assault under § 5-14-110(a)(2)(A) and subdivision (a)(3) of this section, respectively. Newton v. State, 2012 Ark. App. 91 (2012).

Evidence was sufficient to convict defendant of second-degree sexual assault under subdivision (a)(3) of this section because the child victim told a detective about a magic thumb game she played with defendant, pointed to the genitalia area of an anatomically correct doll when describing the magic thumb, and said that when it got big, she made it little again. King v. State, 2012 Ark. App. 253 (2012).

Revocation of probation was proper, because the appellate court was bound to defer to the trial court on issues of credibility, and the victim's testimony established each of the elements for committing second-degree sexual assault under subdivision (a)(1) of this section, when she indicated that the petitioner had her up against the wall and touched her buttocks and vagina. Boykins v. State, 2012 Ark. App. 263 (2012).

Substantial evidence existed to revoke defendant's suspended sentence for sale of cocaine based on a finding that he committed a new criminal offense under subdivision (a)(2)(A) of this section, because his sister-in-law testified defendant sexually assaulted her while she was asleep and a police officer testified his DNA matched the sample taken from the victim. Wilson v. State, 2012 Ark. App. 566 (2012).

Trial court's delinquency adjudications finding that a juvenile committed three acts of sexual assault in the second degree, in violation of subdivision (a)(1) of this section, were appropriate because the trial court found that the testimony of each of the three victims as to the juvenile's making sexual contact with them, as defined by § 5-14-101(10), by inappropriately touching the victims in separate incidents was credible, and because the uncorroborated testimony of each of the victims of a sexual offense constituted sufficient evidence to support a finding of guilt. D.D. v. State, 2012 Ark. App. 637 (2012).

Defendant's conviction for second-degree sexual assault was appropriate because the victim testified that defendant assaulted her and the jury chose to believe her testimony, which, standing alone, was substantial evidence to sustain the conviction. Castrellon v. State, 2013 Ark. App. 408, 428 S.W.3d 607 (2013).

In a second-degree sexual assault and attempted rape case, a trial court did not abuse its discretion by excluding evidence from the victim's former classmates because the classmates' testimony about what the victim did in public would not have been similar to the testimony that the victim gave detailing what defendant did to her. The allegations against defendant did not occur in public places; moreover, the evidence that the victim was the aggressor was not relevant since the victim could not have consented. Bean v. State, 2014 Ark. App. 107, 432 S.W.3d 87 (2014).

Evidence was sufficient to convict defendant of second-degree sexual assault because a victim’s testimony was substantial evidence to sustain the conviction; even if defendant was checking on the victim’s welfare, this did not explain why he touched her breast or put his hands in her pants when she fell asleep in his truck. Harris v. State, 2014 Ark. App. 264 (2014).

Evidence was sufficient to convict defendant of rape and sexual assault where both victims testified that defendant penetrated their vaginas with his penis; the credibility of the witnesses was for the jury to decide. Moreover, an officer's testimony established that defendant was between 17 and 20 years old over the course of time that he sexually abused one of the victims, so the jury could have reasonably concluded that at least two of the sexual assaults occurred after defendant turned 18. Thompson v. State, 2015 Ark. App. 275, 461 S.W.3d 368 (2015).

Evidence was sufficient to convict defendant of second-degree sexual assault because the victim testified that defendant jumped on top of her, used his body to pin her down on a couch, used his leg to try to pry her legs open, and pulled down her shirt and sucked on her breast; she testified that he grabbed her hand and pulled it to his sexual organ, which he had exposed; she said that she told defendant no and tried to fight him off but that she could not move; defendant admitted in his statement to the police that he was trying to have sex with the victim, that they kissed, and that he grabbed her breasts; and, when approached by police officers at his place of employment on the day of the incident, defendant fled. Europe v. State, 2015 Ark. App. 460, 468 S.W.3d 792 (2015).

Evidence was sufficient to sustain defendant's second-degree sexual assault conviction, where the victim's testimony established forcible compulsion by defendant and that she was asleep and could not have consented when the act began, thereby establishing physical helplessness. Robinson v. State, 2016 Ark. App. 550, 506 S.W.3d 881 (2016).

Evidence showing that defendant crept into the bedroom at night, put his hand underneath the covers, touched the sleeping victim's vagina, told her not to tell anyone when she awoke, and said, in his interview with police, that he had touched the victim's vagina, was sufficient to support defendant's conviction for second-degree sexual assault. Chawangkul v. State, 2016 Ark. App. 599, 509 S.W.3d 10 (2016).

Although defendant argued that it was unclear from the alleged victim's testimony as to where defendant had touched the victim, this argument lacked merit because the victim testified that the victim woke up in the middle of the night at defendant's home to defendant touching the victim in the victim's shorts and putting defendant's hand on the victim's “privates.” Upon further questioning, the victim stated that defendant's hands were on the victim's “genitals.” Bynum v. State, 2017 Ark. App. 41, 511 S.W.3d 860 (2017).

Although defendant argued that there was no testimony to show that defendant had been 18 years old or older at the time of the alleged offenses or that either of the alleged victims were not defendant's spouse, these arguments were without merit. The victims testified that they were friends with defendant's children, who were similar in age to their respective ages, and defendant's spouse testified that defendant had been married for over 20 years and that defendant was then 54 years of age. Bynum v. State, 2017 Ark. App. 41, 511 S.W.3d 860 (2017).

Evidence was sufficient to convict defendant of second-degree sexual assault as it could be assumed that defendant's sexual contact with the victim was for sexual gratification because he entered the victim's home and touched her breast and vagina while she was in the bathtub. Holland v. State, 2017 Ark. App. 49, 510 S.W.3d 311 (2017).

Substantial evidence supported a second-degree sexual assault conviction where defendant's statements on the video and testimony about his excitement when replaying the video while bragging about it led to the reasonable conclusion that his actions were taken in an effort to achieve sexual gratification. Sorum v. State, 2017 Ark. App. 384, 526 S.W.3d 50 (2017).

—Admissibility.

Trial court did not err in admitting evidence under Ark. R. Evid. 404(b) that defendant had made sexual remarks to the victim where the remarks showed his sexual attraction to the victim, thereby illustrating his state of mind. Robinson v. State, 2016 Ark. App. 550, 506 S.W.3d 881 (2016).

Even though the trial court violated defendant's right to confrontation under the Sixth Amendment by allowing a substitute analyst to testify regarding the results of a DNA test performed by another analyst, the error was harmless beyond a reasonable doubt; the victim's vivid description of being raped repeatedly and painfully by defendant constituted sufficient evidence to sustain his convictions of rape and second-degree sexual assault. Alejandro-Alvarez v. State, 2019 Ark. App. 450, 587 S.W.3d 269 (2019).

Circuit court did not err in admitting a counselor's testimony about the six-year-old child's outburst at school that defendant had touched her inappropriately and the counselor's subsequent conversation with the child that prompted a call to the child-abuse hotline, as the testimony was offered as a basis for the counselor's actions; the circuit court gave a limiting instruction that the testimony not be taken for the truth of the matter asserted, and understanding the basis for the counselor's actions was important given defendant's claim of fabrication. Mondy v. State, 2019 Ark. App. 290, 577 S.W.3d 460 (2019).

While defendant's prior crime was temporally removed from the current charges by more than 17 years, the prior crime and current charges were very similar in character, as defendant was accused of sexually abusing girls who were approximately six years old by committing very similar sexual acts, and both times, he had a close family or domestic relationship with the girls and committed the acts at home; the circuit court did not abuse its discretion in finding the prior conviction admissible under Ark. R. Evid. 404(b). Mondy v. State, 2019 Ark. App. 290, 577 S.W.3d 460 (2019).

Propriety of the State's calling a witness for impeachment purposes after the witness told the prosecutor she did not remember the events, if error, was harmless as prejudice was not shown; defendant opened the door to questions about his prior conviction and testified at length about the issue, the State's questions to the witness were significantly less prejudicial than defendant's own testimony about the prior events, and the child victim testified at length about defendant's abuse, such that the evidence of his guilt was overwhelming. Mondy v. State, 2019 Ark. App. 290, 577 S.W.3d 460 (2019).

—Sufficiency.

Testimony by the minor victims, defendant's cousins, and defendant's admission during a police interrogation to the sexual assault and rape of one victim, constituted sufficient evidence to support defendant's convictions for rape and second-degree sexual assault. The victims both described the sexual acts using their own body-parts terminology, such as “middle spot” and “private part,” and explained to which body parts they were referring in terms of “penis” and “anus.” Garcia v. State, 2017 Ark. App. 457, 530 S.W.3d 862 (2017).

Evidence was sufficient to convict defendant, age 28, of two counts of rape and two counts of second-degree sexual assault committed against the 13-year-old victim because the victim testified that she was 13 years old, and she described in detail two episodes where defendant engaged in both sexual intercourse and sexual contact with her; the State was not required to prove forcible compulsion; and mistake of age was not a defense. Trotter v. State, 2018 Ark. App. 326, 551 S.W.3d 421 (2018).

Trial court did not err by denying defendant's directed-verdict motions because the victim's testimony, without more, was sufficient to sustain a conviction for second-degree sexual assault; the victim testified to several different ways the sexual contact had occurred, but they all involved sexual contact, and any discrepancies were to be resolved by the finder of fact. Wilson v. State, 2018 Ark. App. 371, 554 S.W.3d 279 (2018).

Circuit court properly denied defendant's motion for a directed verdict on the sexual assault charges where the child victim testified that defendant had inappropriately touched her while she was under his care, the court found her credible, an investigator's testimony explained why the victim's interview and testimony about the assault may not have aligned in every respect, and the court found the mother's former boyfriend credible in testifying about prior assaults. Gilton v. State, 2018 Ark. App. 486, 562 S.W.3d 257 (2018).

Substantial evidence supported defendant's conviction for second-degree sexual assault under subdivision (a)(3) of this section, where he acknowledged that he touched the 12-year-old victim's breast, the jury was not required to believe his stated intent, but was free to look at all the evidence, which included testimony that he continued to touch the victim's breast after she told him to stop, that he told her not to tell anyone what had happened, and that he initially minimized the act but confessed when confronted by the victim's mother. Barfield v. State, 2019 Ark. App. 501, 588 S.W.3d 412 (2019).

Defendant's motion for directed verdict was properly denied as the evidence was sufficient to convict defendant of, inter alia, five counts of second-degree sexual assault under subdivision (a)(4)(A)(iv) of this section because the child victim testified that defendant touched her breasts and between her legs, with his hands and his mouth, on multiple occasions over the course of six years; further, the circuit court did not abuse its discretion in allowing leading questions. Wingfield v. State, 2019 Ark. App. 111, 572 S.W.3d 434 (2019).

Evidence was sufficient to support defendant's conviction for sexual assault in the second degree because testimony revealed that the victim was in kindergarten at the time of the occurrences and the victim testified that defendant touched the victim through the victim's clothes on multiple occasions—sometimes in the presence of others—by placing the victim on defendant's lap and using a magazine to shield defendant's hand touching the victim's penis through the victim's clothes. Furthermore, an adult relative testified as to having seen the victim sitting on defendant's lap. Ralston v. State, 2019 Ark. App. 175, 573 S.W.3d 607 (2019).

Ineffective Assistance.

In postconviction proceedings, the circuit court did not err in granting appellee a new trial on the charge of first degree sexual abuse under former § 5-14-108 [now this section] because trial counsel had been ineffective in failing to inquire as to whether any witnesses could testify regarding appellee's whereabouts during the month in which the victim testified that the offense occurred. This, coupled with counsel's failure to object to the testimony that placed the incident outside the range in the information, prejudiced appellee. State v. Estrada, 2013 Ark. 89, 426 S.W.3d 405 (2013).

Trial court did not abuse its discretion in denying postconviction relief because trial counsel was not ineffective for failing to move for dismissal of the charge of second-degree sexual assault on double jeopardy grounds, as the State presented evidence of separate impulses comprising separate acts conforming with the definitions of rape and second-degree sexual assault. Sorum v. State, 2019 Ark. App. 354, 582 S.W.3d 18 (2019).

Information.

In a rape case, the State should not have been allowed to add the charge of second-degree sexual assault to an information at trial; defendant was unfairly surprised because he did not learn that the State intended to amend the information until after he made a motion to dismiss for failure to prove penetration. Defendant was prepared to defend against the essential element of penetration, and the amendment came after the State's witnesses were able to testify about acts that did not go to the elements of the rape charge. Martinez v. State, 2014 Ark. App. 182, 432 S.W.3d 689 (2014).

Jury Instructions.

Because (1) the term “temporary caretaker” in this section is not defined by statute, (2) the model criminal instruction did not include a definition of the term, and (3) the definition in the non-model instruction was a correct statement of law regarding the definition of the term, the circuit court did not err in giving the non-model instruction defining “temporary caretaker”. Rowland v. State, 2017 Ark. App. 415, 528 S.W.3d 283 (2017).

Circuit court did not err in denying defendant's request for an alternative sentencing instruction; the circuit court considered that defendant had now been convicted of three counts of sexual assault against very young children, and prejudice could not be shown, as the jury imposed a sentence more severe than the minimum sentencing option, indicating the jury would not have imposed an alternative sentence if provided that option. Mondy v. State, 2019 Ark. App. 290, 577 S.W.3d 460 (2019).

Lesser Included Offense.

In a criminal trial, the circuit court did not abuse its discretion in denying defendant's request to instruct the jury that second-degree sexual assault under subdivision (a)(3) of this section was a lesser offense included in rape of a person less than fourteen years of age, as defined in § 5-14-103(a)(3)(A), because the offense contained two elements not included in rape: defendant's age and marital status. Therefore, second-degree sexual assault was not a lesser offense included in rape. Webb v. State, 2012 Ark. 64 (2012).

Juvenile was properly adjudicated delinquent for committing second-degree assault and his due-process rights were not violated because the juvenile confirmed that he engaged in deviate sexual activity by penetrating the victim's anus without touching her, forcible compulsion was an element of both rape and second-degree sexual assault, and the juvenile could not claim surprise by the trial court's true finding as to the lesser-included offense where he was on notice of the greater offense. X.O.P. v. State, 2014 Ark. App. 424, 439 S.W.3d 711 (2014).

Circuit court did not abuse its discretion when it declined defendant's request to include a lesser-included-offense jury instruction for second-degree sexual assault; second-degree sexual assault is not a lesser-included offense of rape because it requires proof of two elements that rape does not: defendant's age (18 or over) and defendant's marital status (not married to the victim). Hartman v. State, 2015 Ark. 30, 454 S.W.3d 721 (2015).

Circuit court's mistake in failing to give a lesser-included instruction on second-degree sexual assault in a rape case did not constitute reversible error because there was no rational basis for instructing the jury on the lesser-included offense where a victim testified that defendant inserted his penis into her vagina against her will, and the DNA evidence established that defendant was the perpetrator. Burris v. State, 2015 Ark. App. 126 (2015).

Cited: Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007).