{
  "id": 12022523,
  "name": "Arthur DABNEY, Jr. v. STATE of Arkansas",
  "name_abbreviation": "Dabney v. State",
  "decision_date": "1996-10-21",
  "docket_number": "CR 96-598",
  "first_page": "382",
  "last_page": "385",
  "citations": [
    {
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      "cite": "326 Ark. 382"
    },
    {
      "type": "parallel",
      "cite": "930 S.W.2d 360"
    }
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  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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    "name_long": "Arkansas",
    "name": "Ark."
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      "year": 1996,
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      "cite": "Ark. Code Ann. \u00a7 5-14-101",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 1995,
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      "cite": "Ark. Code Ann. \u00a7 5-14-103",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "weight": 2,
      "year": 1995,
      "pin_cites": [
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          "page": "(a)(1)"
        },
        {
          "page": "(a)(l)"
        }
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  "last_updated": "2023-07-14T22:12:03.555215+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Arthur DABNEY, Jr. v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Andree Layton Roaf, Justice.\nThe Appellant, Arthur Dab-ney, was convicted in a bench trial of the attempted rape of a patient at a nursing home in Osceola, Arkansas. He was sentenced as an habitual offender to forty years\u2019 imprisonment. Dabney asserts on appeal that there was insufficient evidence to support the judge\u2019s finding that the victim was incapable of consent because she was physically helpless. We affirm.\nAt the time of the incident, Dabney was working as a laundry attendant at the nursing home in Osceola. On July 14, 1995, a nurse\u2019s aide spotted Dabney\u2019s laundry cart outside the room of a fifty-three-year-old patient who was blind, mentally impaired, partially handicapped, and unable to speak. The aide peeked behind a closed curtain in the patient\u2019s room and saw Dabney standing by the patient\u2019s bed with his pants down around his knees and his penis exposed and in an aroused state. The victim\u2019s vest restraint and gown had been removed, and she had been pulled sideways on the hospital bed so that her opened legs hung over the lowered bedrail. Dabney was standing between the victim\u2019s legs and was about to penetrate her when he saw that he was being observed by the aide. The aide called to another employee, who entered the room and witnessed Dabney pulling his pants up while standing next to the nude victim. The aide called Dabney out of the room and told him that she was going to notify the supervisor. Dabney responded: \u201cI\u2019m sorry. I said I\u2019m sorry. It\u2019s just a white woman anyway.\u201d\nDabney waived his right to be tried by a jury; the case was tried before Judge Fogleman of the Mississippi County Circuit Court. The judge found Dabney guilty of attempted rape. Because Dabney had previously been convicted of rape, possession of a controlled substance, and burglary, he was sentenced as an habitual offender to forty years in prison.\nDabney was convicted of violating Ark. Code Ann. \u00a7 5-14-103(a)(1) (1995), which provides that:\nA person commits a rape if he engages in sexual intercourse or deviate sexual activity with another person who is incapable of consent because he is physically helpless.\nA person is \u201cphysically helpless\u201d when he or she is \u201cunconscious or is physically unable to communicate lack of consent.\u201d Ark. Code Ann. \u00a7 5-14-101(5) (1995). For his sole argument on appeal, Dab-ney asserts that there was insufficient evidence to support the judge\u2019s finding that the victim was \u201cphysically helpless\u201d because the evidence indicated that she was not \u201cphysically unable to communicate lack of consent\u201d as required by the statute.\nWhen reviewing the sufficiency of the evidence, this court does not weigh the evidence presented at trial; this is a matter for the factfinder. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Instead, we will review the evidence in the fight most favorable to the State, and we consider only the evidence which supports the guilty verdict. Id. The conviction will be affirmed if the evidence \u201cis forceful enough to compel a conclusion one way or the other and pass beyond mere suspicion and conjecture.\u201d Id.\nAt trial, it was established that the victim was fifty-three years old, blind, and unable to speak. One witness described her as a \u201ctiny\u201d woman under five feet tall. The victim was confined to her bed or a wheelchair and was placed in a restraining vest twenty-four hours a day to prevent her from climbing out of bed and hurting herself. She was able to walk and relieve herself only when assisted by the staff, and she had to be fed and bathed daily.\nAs to her ability to communicate, the victim could only grunt, raise her hand, and shake her head from side to side. She was unable to write. In addition, witnesses testified that the victim\u2019s ability to perceive and comprehend her surroundings was very limited. A police detective who attempted to interview the victim after the incident testified that she was unable to understand or respond to most of her questions. The officer testified that: \u201cI think the only time I felt she really understood what I said is when I said, \u2018Shirley do you want to go back to bed.\u2019 \u201d In addition, a nurse testified that the victim\u2019s ability to communicate was less than that of a five or six-year-old child; indeed, the appellant admitted at trial that the victim was \u201chelpless.\u201d\nThere was clearly sufficient evidence from which the trial judge could have concluded that a blind, helpless woman who is unable to see, speak or move about freely was physically unable to communicate the lack of consent to engage in a sexual act as required by the statute. Granted, the victim was not completely physically incapacitated, but this is not what the statute requires; it only requires physical helplessness, not total incapacity. Ark. Code Ann. \u00a7 5-14-103(a)(l).\nFurthermore, the comments to Section 5-14-101 indicate that \u201cphysically helpless\u201d includes the situation where \u201cthe victim is aware of what is taking place but is unable to indicate lack of consent because of paralysis or other physical disability.\u201d (Emphasis added.) Here, the facts suggest that the victim\u2019s physical condition made it impossible for her to be \u201caware\u201d of Dabney\u2019s intentions before he actually commenced the rape. Consequendy, it is likely that the victim was unaware of what was about to occur and of her need to indicate her lack of consent. Under these circumstances, there was sufficient evidence to support the judge\u2019s finding that the victim was unable to consent due to her \u201cphysical helplessness.\u201d\nDabney argues on appeal that the facts support a charge of attempted carnal abuse in the second degree, a misdemeanor, rather than attempted rape. Specifically, Dabney asserts that it was the victim\u2019s mental, not physical, disability which prevented her from consenting. However, there is more than sufficient evidence, that without regard to her mental infirmities, the victim was so physically impaired that she was unable to communicate consent.\nAffirmed.",
        "type": "majority",
        "author": "Andree Layton Roaf, Justice."
      }
    ],
    "attorneys": [
      "John H. Bradley, for appellant.",
      "Winston Bryant, Att\u2019y Gen., by: Brad Neuman, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Arthur DABNEY, Jr. v. STATE of Arkansas\nCR 96-598\n930 S.W.2d 360\nSupreme Court of Arkansas\nOpinion delivered October 21, 1996\n[Petition for rehearing denied November 18, 1996.]\nJohn H. Bradley, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Brad Neuman, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0382-01",
  "first_page_order": 416,
  "last_page_order": 419
}