Robbie C. Harvey v. State of Arkansas

Cite as 2024 Ark. App. 576
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-24-19

ROBBIE C. HARVEY Opinion Delivered November 20, 2024

APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. SEVENTH DIVISION
[NO. 60CR-20-2456]
STATE OF ARKANSAS
APPELLEE HONORABLE KAREN D. WHATLEY,
JUDGE

AFFIRMED

ROBERT J. GLADWIN, Judge

Appellant Robbie Harvey (“Harvey”) appeals the Pulaski County Circuit Court’s

conviction for second-degree sexual assault and resulting sentence of five years’ probation.

On appeal, Harvey argues that the circuit court erred by denying his motion to dismiss based

on his allegation that the State failed to set forth sufficient evidence at trial that he was in a

position of trust or authority over the victim, a minor child (“MC”). We affirm.

I. Background Facts

On April 8, 2020, Harvey picked up sixteen-year-old MC from her home in Cabot,

Arkansas. MC was planning to spend the weekend with Harvey and his wife in Jacksonville.

MC testified that Harvey was a family friend, and they were “extremely close” because she

spent a lot of time with him “growing up.” She explained that Harvey was like a father figure,
and she referred to him as “papa.” Brenda Winstead (“Brenda”), MC’s mother, testified that

she knew Harvey and his wife because her family moved across the street from them when

she was approximately fourteen years old. Brenda stated that she became friends with

Harvey’s daughter, and she considered Harvey and his wife “parental figures.”

After picking MC up at her home, Harvey began making sexually inappropriate

comments toward MC. MC testified that Harvey told her she needed to stop wearing tight

clothes because it was “turning him on,” asked her if she was a virgin, and asked whether she

“[thought] about him the way [he] thinks about [her].” Harvey then placed his hand on MC’s

thigh and started rubbing it and asked MC “if eight inches was enough to fill [her] up.” MC

stated that Harvey also lifted his leg, pulled up his shorts, and attempted to pull out his penis.

MC testified that she pushed Harvey’s hand away but that he continued, and then he

grabbed her vagina.

At this point, MC sent her brother a text and asked him to come pick her up.

However, he originally told MC that he could not do so because he was at work. MC testified

that she needed her brother to understand that it was an “emergency,” so she started

recording what was happening on her phone and sent the video to her brother. The video,

which was played in court, showed Harvey’s hand on MC’s thigh and MC’s hand pushing

Harvey’s away. The following exchange between MC and Harvey was captured on video:

MC: Stop—Papa, it’s weird. Stop.

HARVEY: Nah, it ain’t.

MC: It is. Stop, papa. It’s weird.

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Subsequently, MC asked Harvey to stop at McDonald’s so that she could use the

restroom. However, because the McDonald’s was closed due to COVID, Harvey drove MC

across the street to a Walgreens. MC stayed in the bathroom at Walgreens until her brother

arrived to pick her up. When she returned to Harvey’s car to retrieve her bag, MC stated

that Harvey said, “Please don’t tell anyone. I’m sorry. It won’t happen again.” Later that day

Harvey sent MC a text saying, “I’m sorry. It won’t happen again. Don’t say anything.”

Harvey was charged with one count of second-degree sexual assault, and the State

alleged that he engaged in sexual contact with the sex organs of a minor child while in a

position of trust or authority over the minor. He was also charged with one count of

misdemeanor indecent exposure; however, the circuit court dismissed the charge at trial. At

the close of the State’s case and the close of all evidence, Harvey sought dismissal of the

second-degree sexual-assault charge, arguing that the State’s proof that Harvey held a position

of trust or authority over MC was insufficient. The circuit court denied the motion both

times. Harvey was convicted of one count of second-degree sexual assault by the circuit court

and sentenced to five years’ probation. He filed a timely notice of appeal; this appeal

followed.

II. Standard of Review

A motion to dismiss at a bench trial is identical to a motion for directed verdict at a

jury trial in that it is a challenge to the sufficiency of the evidence. Ark. R. Crim. P. 33.1

(2023); Jordan v. State, 2014 Ark. App. 325, at 1. This court will affirm a circuit court’s denial

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of the motion if there is substantial evidence, either direct or circumstantial, to support the

verdict. Terry v. State, 2018 Ark. App. 435, at 3, 559 S.W.3d 301, 303. Substantial evidence

is defined as evidence forceful enough to compel a conclusion one way or the other beyond

suspicion and conjecture. Id. at 3–4, 559 S.W.3d at 303. The evidence is viewed in the light

most favorable to the verdict, and only evidence supporting the verdict is considered. Id. at

4, 559 S.W.3d at 303.

III. Discussion

A person commits second-degree sexual assault if the person engages in sexual contact

with a minor and was a position of trust or authority over the minor. Ark. Code Ann. § 5-

14-125(a)(4)(A)(iv) (Supp. 2023). Here, Harvey does not challenge the State’s proof that

sexual contact occurred with MC. Instead, Harvey maintains that the State failed to set forth

sufficient evidence that Harvey was in a position of trust or authority over MC.

This court has held that the statutory threshold of “position of trust or authority” is

met where a relationship raises a strong inference of trust and supervision and where the

appellant’s function in the relationship could be characterized, at a minimum, to be that of

a chaperone. Milton v. State, 2023 Ark. App. 382, at 8, 675 S.W.3d 173, 178. Harvey asserts

that there was no “continuance of the relationship” because none of the witnesses could

recall when MC had last seen Harvey prior to April 8, 2020. Moreover, Harvey explains that

because MC had the ability to get out of his vehicle at McDonalds, she was “free to leave,”

and because she “[stood] up to him” and pushed his hand off her leg, there was no strong

inference of trust or supervision. We find this argument unavailing.

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The evidence, including MC’s testimony, establishes that Harvey was in a position of

trust or authority over MC. MC testified that she knew Harvey because he helped raise her

and was a family friend; MC described Harvey as a father and grandfather figure in her life;

and MC referred to Harvey as “papa.” MC’s mother, Brenda, testified that she met Harvey

when she was approximately fourteen years old, and he was her neighbor at that time; Brenda

stated she became friends with Harvey’s daughter and that she viewed Harvey and his wife

as parental figures; she also said that she maintained a relationship with Harvey, and when

she had children, Harvey and his wife celebrated birthdays and holidays with her and her

children. Furthermore, Brenda testified that her children referred to Harvey and his wife as

“nana and papa” and that when MC was younger, she executed a legal document giving

Harvey and his wife authority to make healthcare decisions for her children (including MC)

when they were in Harvey’s care. Brenda testified that she trusted Harvey to care for and

supervise her children when they were alone with him. Finally, in MC’s initial statement to

the police, she explained that she was headed to Jacksonville to “stay at [her] grandparents’

house for the weekend.”

Harvey’s attempt to highlight the fact that MC and Brenda could not specify how

often MC had seen Harvey from 2017 to 2020 is merely a request to have this court reweigh

the evidence. However, the credibility of witnesses and the weight of the evidence are matters

for the finder of fact to decide, and this court may not reweigh the evidence or substitute its

own credibility determinations for those of the finder of fact. Baker v. State, 2022 Ark. App.

391, at 7, 654 S.W.3d 63, 67. Additionally, Harvey offers no citation to authority in support

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of his contention that the ten to fifteen minutes MC spent in the car with him was “not

nearly enough time to establish a strong inference of trust or supervision” or that somehow

by insisting on leaving, “[MC] was showing her independence,” thereby proving that she did

not trust Harvey; therefore, we decline to address it on appeal. See Morales v. Arias, 2022

Ark. App. 174, at 11, 643 S.W.3d 883, 891. Because the evidence presented to the circuit

court—on the count of second-degree sexual assault—did not require it to resort to

speculation and conjecture to convict Harvey, we affirm the conviction.

IV. Conclusion

For the above-stated reasons, we hold that Harvey’s conviction for second-degree

sexual assault was supported by substantial evidence; thus, we affirm.

Affirmed.

HARRISON, C.J., and BROWN, J., agree.

Ogles Law Firm, P.A., by: John Ogles, for appellant.

Tim Griffin, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.

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