Joseph Rodriguez-Berdecia v. State of Arkansas

Cite as 2024 Ark. App. 614
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-24-26

Opinion Delivered December 11, 2024

APPEAL FROM THE WASHINGTON
JOSEPH RODRIGUEZ-BERDECIA
COUNTY CIRCUIT COURT
APPELLANT
[NO. 72CR-21-726]

V.
HONORABLE MARK LINDSAY,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

CINDY GRACE THYER, Judge

Joseph Rodriguez-Berdecia was convicted by a Washington County jury of three

counts of rape; one count of first-degree sexual assault; one count of second-degree sexual

assault; and one count of first-degree domestic battering and was sentenced to a combined

total of eighty years1 in the Arkansas Division of Correction. On appeal, he argues that (1)

there was insufficient evidence to support his convictions and (2) that the State

impermissibly attempted to shift the burden of proof during closing arguments. We affirm.

1
Appellant received forty years on each of the three rape counts, with two of the
sentences to run consecutively. The forty-year sentence on the third rape count and the
sentences on the other three convictions (twenty years, fifteen years, and one year,
respectively) were ordered to run concurrently to the consecutive sentences on the first two
rape counts.
In February 2021, the minor victim (MV) reported to her mother that her mother’s

former boyfriend (appellant Rodriguez-Berdecia) had sexually assaulted her several years

prior. Following this revelation, MV’s mother took her to the Springdale police station to

report the assault.

After an investigation into the matter, appellant was ultimately charged with two

counts of rape of a minor under the age of fourteen; one count of rape of a minor by a

guardian; one count of first-degree sexual assault involving a minor and a person in a position

of trust or authority; one count of second-degree sexual assault involving a minor under the

age of fourteen; and one count of third-degree domestic battering for causing physical injury

to a household member with a knife.

A three-day jury trial was held in August 2023. The State called six witnesses:

Springdale Police Sergeant Robert Hammontree; Dale Chiddester, a civilian investigator

with the Arkansas State Crimes Against Children Division (CACD); Barbara Ervin, a sexual

assault nurse examiner (SANE); Karen Blackstone, a forensic interviewer at the Children’s

Safety Center (CSC); MV; and MV’s mother, Nancy Aguirre.

Sergeant Hammontree testified that he was assigned to investigate MV’s sexual-assault

allegations against appellant, which reportedly occurred when MV was thirteen years old. He

stated that, although there had been an approximately four-year delay in disclosing the

assault, delayed disclosure was not unusual in those types of cases.

2
As part of his investigation, Hammontree arranged for forensic interviews of MV and

her siblings at the CSC.2 MV’s interview at the CSC, which he observed, occurred on

February 24, 2021. He also discussed the allegations with appellant, who denied them. After

questioning appellant, Sergeant Hammontree arrested him.

On cross-examination, Sergeant Hammontree admitted he had not obtained a search

warrant for the residence where the crimes allegedly occurred,3 nor did he attempt to collect

any additional physical evidence due to the delay in reporting. He also testified that, although

he was aware that MV had been to Vantage Point for mental-health issues, he had not made

any attempts to obtain her medical records. He further denied knowing that MV had accused

someone else.

Dale Chiddester explained forensic-interviewing techniques and the various reasons

why child victims might delay reporting abuse. He then testified that he had conducted MV’s

February 24 interview regarding her allegations against appellant. He stated that he had not

seen any of the signs indicative of lying during that interview. After the interview, he

requested that MV undergo a forensic medical examination because she had disclosed

penetration and that one of the incidents reportedly resulted in a scar. He stated that he also

2
He did not set up a medical exam because of the delayed disclosure. The siblings’
interviews did not produce any additional evidence.
3
At the time of the investigation, the parties no longer lived at that residence.

3
observed the interviews of MV’s siblings, but none of them reported any sexual abuse. 4 At

the conclusion of his investigation, he issued a true finding as to MV’s allegations.

Barbara Ervin testified that she performed a forensic medical examination on MV on

March 4, 2021. The exam was normal. Ervin testified, however, that it is very common to

have normal exams after an alleged assault, and in fact, over 90 percent of the exams in these

situations—even exams of pregnant teenagers—are normal. She further testified that, given

the delayed disclosure and the four years that had elapsed since MV’s last physical contact

with appellant, any injury sustained would have healed by the time the exam was performed.

She did report finding a one-inch scar on MV’s lower left buttock and inner thigh, which

MV claimed to have received during one of the assaults. A photograph of the scar was

admitted and shown to the jury.

Karen Blackstone described the multiple reasons a child might delay disclosure of

abuse. She admitted on cross-examination, however, that she had no way of telling whether

any particular child was telling the truth about alleged abuse.

MV was the next to testify. She testified that appellant had raped her on multiple

occasions. She testified that when these incidents allegedly occurred, she was twelve or

thirteen years old, and appellant was living with her, her sisters, and her mother in a house

in Springdale.5

4
One of the children did disclose domestic violence between appellant and Nancy but
nothing sexual between the appellant and the other children.
5
She testified she was approximately fourteen and entering the eighth grade when her
mother left appellant, and they moved out of the home.

4
MV claimed that the first incident occurred when she was cleaning her bedroom. She

and appellant were alone in the house at the time. Appellant entered the room; accused her

of watching pornography on her phone; grabbed her breast; and told her that he knew she

liked it. When she responded that she did not like it, he told her not to tell her mother.

According to her testimony, a few nights later, appellant entered her room while she

was in bed. He crawled on top of her, grabbed her arms, and pinned her down with his

knees. He then pulled down her pants and underwear and penetrated her vagina with his

penis. She told him to stop and that it hurt, and she tried to push him off. He refused and

ordered her to be quiet. He did not wear a condom during the assault, and MV believed he

pulled out before he ejaculated. She said he left marks on her hands and that she wore

hoodies at his suggestion to hide the bruising. He warned her not to tell anyone or he would

rape her sisters, too, so she remained silent. He also told her that her mother would not

believe her.

On another occasion that summer, appellant entered the bathroom while MV was

showering and touched her naked breast. Although she was crying, he told her that he knew

she liked it.

The next assault occurred while MV was in a bedroom she shared with one of her

sisters. She was alone in the room at the time. Appellant came in, pushed her onto her

stomach onto the bottom bunk of the bunkbed, pinned her down, and cut a hole in her

5
leggings with a pocketknife. When he did so, he accidentally cut her on her left side between

her “butt cheeks.” He then penetrated her both vaginally and anally. Afterward, he told her

to throw her clothes away in a dumpster outside and to wear pads to cover the bleeding from

where he had cut her. He again told her that if she told anyone, the same thing would happen

to her sisters and that her mother would not believe her and would always choose him over

her. The cut ultimately resulted in a scar, and a picture of the scar was introduced into

evidence.

MV also described other instances of abuse at the hands of appellant. One such

assault occurred in her mother’s bedroom as she was changing her youngest sister’s diaper.

She claimed that appellant pushed her onto the bed, pinned her down, and raped her

vaginally and anally. She stated that this incident was rougher than the others and that she

remembered that her head hit the wall multiple times as they moved back and forth. Her

sister was in the crib during this assault. She described another time when he digitally

penetrated her while she was in the kitchen of their home. She further claimed that, when

he would try to rape her, he would sometimes place his penis inside her mouth and order

her to suck on it so he would get hard. One of those times, he ejaculated in her mouth, and

she had to spit it out in the toilet.

MV testified that she was scared of appellant and became suicidal, resulting in a stay

at Vantage Point, a mental-health facility.

6
MV’s mother, Nancy, testified that she has three daughters including MV, who is the

oldest. The appellant is the father of her youngest daughter, MC.6 They were never married,

but they lived together approximately seven years, from 2010 to 2017. When she was

working, the girls would be at home either alone or with appellant. She stated that, while he

was verbally and physically abusive to her, she never suspected that appellant was abusing

any of her daughters. She never saw any bruising or red marks on MV’s hands or face; never

heard MV scream in pain; and never saw appellant touch MV inappropriately.

On September 10, 2017, Nancy left appellant over his abuse of her. After that, she

had no communication with appellant; all communication regarding MC was through

appellant’s wife,7 Lidia Vargas. While appellant had some visitation with MC, Nancy did not

facilitate the drop offs because appellant had attacked her on one occasion. However, she

would sometimes send MV to drop off MC at appellant’s home.

When asked about her relationship with MV, Nancy said that when MV was around

twelve or thirteen, MV withdrew from her, and she did not know why. Once, when she was

upset, MV told Nancy she did not want to be like Nancy and wanted to go live with her

father. Nancy called the police, and MV was admitted to Vantage Point for a week for mental-

6
Nancy testified that MC wore diapers until she was almost three years old and then
would use them only at night, which corroborated MV’s testimony. MC would have been
three and a half in the summer of 2016 when the abuse allegedly occurred. Nancy also
described the layout of the house, including the bedrooms, kitchen, and living room.
7
While Lidia was described by witnesses as appellant’s wife, appellant clarified in his
testimony that he was not actually married to Lidia, but they were engaged and
contemplating marriage.

7
health treatment. Then, in February 2021, while she and MV were having breakfast at

Cracker Barrel, MV disclosed to her that appellant had sexually abused her. Following the

disclosure, she immediately took MV to the police to make a report.

After Nancy’s testimony, the State rested, and appellant moved for a directed verdict:

On each charge of rape, Your Honor, we would just, of course, allege that the
State has not made the prima facie case based on not alleging or not showing sexual
intercourse with the accuser. Age has not been established, of course, due to the
vagueness of the specific testimony of the alleged accuser in this case and we would
renew that motion for both of the other counts of rape as well.

On the charge of sexual assault in the first degree, we allege there has not been
a prima facie case made as to again, age for the same reasons as in the charge of rape.
They have not shown a prima facie case of deviate sexual activity, or established
whether or not the accuser was a spouse in this case, or established a position of
authority.

On the charge of sexual assault in the second degree, we would renew the very
same, obviously, reasons for sexual assault in the first degree.

Also, finally on the charge of domestic battery in the third degree, we allege at
this time that the State did not make a prima facie case in that it has not shown any
reckless physical injury caused.

So, we would ask for a directed verdict on all counts.

The court denied the motions.

Thereafter, appellant testified on his own behalf. The defense also re-called

Investigator Chiddester and called three other witnesses: Springdale Police Corporal Rusty

Boyd; Lidia Vargas; and Dr. Marc Serota, a board-certified physician in pediatrics,

immunology, and dermatology.

8
Corporal Boyd testified that he was working at the Springdale Police Department on

February 22, 2021, when Nancy and MV came in to report the sexual assault. MV reported

to him that appellant had raped her. The conversation lasted approximately thirty minutes

to an hour. During that time, MV did not mention that appellant had cut her with a knife

or that it had left a scar on her body. She also did not disclose to him that appellant had

touched her vagina while they were in the kitchen of their home or that he had slapped her

face or hit her.

On cross-examination, Corporal Boyd noted that his only role was to take the initial

report to pass on to the detectives, not to collect evidence or conduct a forensic interview of

the victim. He stated that his report did not go into great detail, but he did try to include all

the important facts that MV relayed to him concerning the allegations against appellant.

On re-call, Investigator Chiddester testified regarding his forensic interview of MV,

and the video of his interview with MV was played to the jury.

In the video, MV, who was seventeen at the time of the interview, recounted the

incidents in which appellant assaulted her. She stated that the incidents occurred when she

was thirteen years old and living with appellant, her mother, and her sisters. She recounted

several instances of abuse: the incident in which he accused her of watching pornography;

the incident in the shower; and the incident when he raped her in her room, which she

stated happened the same night as the shower incident. She then recounted the rape in the

bedroom she shared with her sister, which she said occurred a week following the shower

incident. She also described the incident in the kitchen in which he digitally penetrated her.

9
Finally, she described the incident in her mother’s bedroom where she said he raped her

after she had changed her sister’s diaper. She testified that this happened approximately one

month later. She stated that the abuse took place for approximately one year.

Lidia Vargas testified that she began dating appellant in December 2017 and that they

have two children together. She testified that between 2019 and 2021, both Nancy and MV

would bring MC to their home for visitation and leave her at the front of the house. She

stated that on one occasion, MV even came into the home to pick up some Christmas

decorations.

Dr. Mark Serota testified that he could not to a reasonable degree of medical certainty

opine that MV’s scar was caused by a knife, either by stabbing or by incision. Instead, he

stated that, more likely than not, the scar was not from a knife wound. He noted that the

scar was a straight, linear scar unlikely to be sustained when someone is kicking and moving

as described by MV. Rather, from MV’s description of events, he would have expected the

injury to have been jagged or curved. He also stated that this injury would have caused

significant bleeding and possibly would have required suturing. He testified that it would

have taken weeks to heal, caused significant pain, and superficial first-aid type measures

would not have stopped the bleeding.

On cross-examination, Dr. Serota explained that he had been paid $6,000 for his

testimony. He acknowledged that it was possible that MV never sought treatment for the cut

that caused the scar, and it was possible the cut had occurred four years before the photos

were taken. He also stated that it was “possible” that the scar was caused by a knife. He then

10
read from his report in which he said, “I cannot state to a reasonable medical certainty the

cause of this scar.”

Appellant was the last witness. He denied the accusations against him. He stated that

he met Nancy at a casino in 2010 and that they began dating in 2011 or 2012. They began

living together sometime in 2012, a few months before they discovered that Nancy was

pregnant with MC. They lived together until Nancy moved out sometime in the middle of

2017. He stated that Nancy did not work during the summer of 2016 when the events

allegedly occurred because her mother was visiting from Mexico. He also stated that a friend,

José Ayalas, also lived with them during that time. He claimed that MV was caught sneaking

out of the house with a neighbor boy and girl to drink and smoke marijuana that summer.

As a result, they installed security cameras, which Nancy would monitor frequently. He also

claimed that MV and Nancy were having issues at that time because MV did not understand

why Nancy was not with MV’s father and why she could not live with him. At one point,

MV threatened to kill herself and, as a result, was admitted to Vantage Point.

Appellant testified that he spoke with the police after MV accused him of sexual

assault. He denied all involvement and expressed his innocence during the interview. After

the interview, they arrested him.

At the close of all the evidence, defense counsel renewed his motions for directed

verdict, and the court once again denied them. The jury found appellant guilty on all charges,

and appellant filed a timely notice of appeal from his convictions.

I. Arguments on Appeal

11
On appeal, appellant argues that the circuit court erred in denying his motions for a

directed verdict and claims that the State impermissibly attempted to shift the burden of

proof during closing arguments. We affirm.

A. Directed Verdict

Appellant first challenges the circuit court’s denial of his directed-verdict motions. A

motion for directed verdict is a challenge to the sufficiency of the evidence. Dixon v. State,

2011 Ark. 450, 385 S.W.3d 164. When reviewing a challenge to the sufficiency of the

evidence, we view the evidence in the light most favorable to the verdict and consider only

evidence that supports the verdict. Wallace v. State, 2023 Ark. 7, 659 S.W.3d 267. We will

affirm a conviction if substantial evidence exists to support it. Collins v. State, 2021 Ark. 35,

617 S.W.3d 701. Substantial evidence is evidence of sufficient force and character that it

will, with reasonable certainty, compel a conclusion without resorting to speculation or

conjecture. Id. We do not weigh the evidence presented at trial or assess the credibility of the

witnesses because those are matters for the fact-finder. Halliburton v. State, 2020 Ark. 101,

594 S.W.3d 856. 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. 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.

Moreover, we will not address arguments concerning the sufficiency of the evidence to

support a conviction if the defendant did not move for a directed verdict on that charge.

Railey v. State, 2023 Ark. App. 433, 675 S.W.3d 912. Finally, a party cannot change the

12
grounds for an objection or motion on appeal but is bound by the scope of argument made

at trial. Id.

1. Material variance

Appellant first argues that the State failed in its burden of proving when the alleged

crimes occurred, thereby creating a material variance from the time frame alleged in the

information and hindering his ability to present a defense. More specifically, he argues that

the first two rapes were alleged to have occurred between June 1 and August 30, 2016; the

third rape allegedly occurred between October 31, 2016, and October 31, 2017; the first

sexual assault allegedly occurred between June 1 and September 30, 2016; and the final two

crimes (sexual assault and domestic battering) allegedly occurred between June 1 and August

30, 2016, and that the State failed to sufficiently prove when these alleged incidents actually

occurred. In support of his argument, he claims that the State’s evidence was based on MV’s

“solicited ramblings” without any specific timeline other than it might have been

summertime when she was twelve or thirteen. This, he posits, was insufficient. Citing Johnson

v. State, 55 Ark. App. 117, 932 S.W.2d 347 (1996), he asserts that when the variance between

the wording of the indictment or information and the proof at trial prejudices the substantial

rights of the defendant, reversal is required.

Appellant, however, never made this argument below. An appellant is bound by the

nature and scope of the directed-verdict motion he made at trial. Bridges v. State, 2023 Ark.

157, 676 S.W.3d 275; McPherson v. State, 2024 Ark. 163, 699 S.W.3d 79. Because appellant

13
did not present this argument below, it is not preserved for our review. Rogers v. State, 2024

Ark. App. 340, 690 S.W.3d 465. Thus, we affirm on this point.

2. Age

Appellant next argues that the State failed to prove MV’s age at the time of the alleged

acts.8 He notes that, although MV testified that she was twelve or thirteen when the crimes

allegedly occurred, she could not remember exactly how old she was. He asserts that such

equivocal testimony required the jury to resort to speculation and conjecture to determine

her age at the time of the alleged events.

It is well established that the uncorroborated testimony of a rape victim alone is

sufficient to sustain a conviction. See, e.g., Ward v. State, 370 Ark. 398, 260 S.W.3d 292

(2007). Here, the jury was presented with evidence that when MV was twelve or thirteen,

appellant fondled her in the shower and then later that same evening engaged in sexual

intercourse with her. MV stated that approximately one week later, he again engaged in

sexual intercourse with her, cutting her with a knife in the process. This evidence alone is

sufficient to prove that she was a minor under the age of fourteen when those acts occurred,

thereby supporting the first two rape convictions and the second-degree sexual-assault

conviction. And while MV did not specifically testify to her age when the other acts occurred

(digital penetration of her vagina while she was in the kitchen of their home and sexual

8
This argument applies only to two of the rape convictions and one of the sexual-
assault convictions because the third rape conviction and the first-degree sexual-assault
convictions required only a finding that MV was a minor. The domestic-battering charge did
not have an age component.

14
intercourse in the bedroom she shared with her sister approximately one month later), she

did testify that they were living with appellant when those acts occurred and that they had

moved from the home in September 2017. MV was born in April 2003, making her fourteen

years old at the time of the move. She was therefore a minor for purposes of the third rape

and the first-degree sexual-assault convictions.9 Any argument that MV’s testimony was vague

or indefinite goes to the weight and credibility of her testimony. It is the function of the jury,

and not this court on appeal, to evaluate the credibility of witnesses and to resolve any

inconsistencies in the evidence. See Breeden v. State, 2013 Ark. 145, at 5, 427 S.W.3d 5, 8–9.

3. Sexual gratification

Appellant’s final sufficiency argument is that the State failed to prove “sexual

gratification” for purposes of his domestic-battering conviction. This argument fails for two

reasons. First, there is no sexual-gratification requirement for third-degree domestic

battering. One commits third-degree domestic battering by recklessly causing physical injury

to a family or household member. Ark. Code Ann. § 5-26-305(a)(2) (Supp. 2023).

To the extent that appellant attempts to challenge the sexual-gratification component

of either the rape or sexual-assault convictions, his argument is not preserved for appeal

because he did not challenge the sexual-gratification element in his initial directed-verdict

motion. A directed-verdict motion is a challenge to the sufficiency of the evidence and

requires the movant to apprise the circuit court of the specific basis on which the motion is

9
A minor is defined as “a person who is less than eighteen (18) years of age.” Ark.
Code Ann. § 5-14-101(7) (Repl. 2013).

15
made. King v. State, 2018 Ark. App. 309, at 4 (citing Rounsaville v. State, 372 Ark. 252, 256,

273 S.W.3d 486, 490 (2008)). Arguments not raised at trial will not be addressed for the first

time on appeal, and parties cannot change the grounds for an objection on appeal but are

bound by the scope and nature of the objections and arguments presented at trial. Id. Because

appellant failed to argue in his initial directed-verdict motion that the State did not prove

sexual gratification, his argument is not preserved for appeal.

B. Improper Burden Shifting

Finally, appellant argues that the State impermissibly attempted to shift the burden

of proof during its closing argument in rebuttal. At trial, appellant presented the testimony

of an expert witness who asserted that the victim’s scar was not likely caused by a knife as

claimed by the victim. In its rebuttal during closing arguments, the prosecutor suggested that

the defense should have spent its money on challenging other evidentiary items instead of

hiring its expert witness. Appellant now argues that the court abused its discretion in

permitting the State to comment on items that were not in evidence and on his failure to

call other witnesses. This, he contends, amounted to the State’s shifting the burden to him

to explain the absence of such evidence.

However, appellant’s argument in this regard, as with the others, is not preserved for

appeal because he failed to object to the prosecutor’s statements below. Our courts have

frequently held that a contemporaneous objection must be made to the circuit court before

we will review an alleged error on appeal. Jones v. State, 2024 Ark. App. 283, 689 S.W.3d 98.

On the basis of the foregoing, we affirm.

16
Affirmed.

KLAPPENBACH and WOOD, JJ., agree.

Lisa-Marie Norris, for appellant.

Tim Griffin, Att’y Gen., by: Christian Harris, Sr. Ass’t Att’y Gen., and Michael Frost,

Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission

to the Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson, Deputy

Att’y Gen., for appellee.

17