Cite as 2026 Ark. App. 398
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-25-709
THOMAS EUGENE WHITT Opinion Delivered September 9, 2026
APPELLANT
APPEAL FROM THE SEVIER COUNTY
CIRCUIT COURT
V. [NO. 67CR-24-25]
STATE OF ARKANSAS HONORABLE TOM COOPER, JUDGE
APPELLEE
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant Thomas Eugene Whitt appeals after he was convicted by a Sevier County
jury of three counts of rape, one count of incest, and one count of second-degree sexual
assault. He was sentenced to an aggregate term of 150 years’ imprisonment and ordered to
pay $25,000 in fines. He argues on appeal that the circuit court abused its discretion by
allowing the State to refer to the alleged victims as “victims” based on a misreading of Friday
v. State.1 He also argues that the evidence was insufficient to support his conviction of one
count of rape and of incest. We affirm.
1
2018 Ark. 339, 561 S.W.3d 318.
Although appellant’s sufficiency argument is his second point on appeal, we address
it first due to double-jeopardy considerations.2 Appellant argues that the evidence was
insufficient to support his conviction for the rape of A. Pierce. Under Arkansas Code
Annotated section 5-14-103(a)(1),3 a person commits rape if he or she engages in sexual
intercourse or deviant sexual activity with another person by forcible compulsion. “Deviant
sexual activity” means any act of sexual gratification involving the “penetration, however
slight, of the anus or mouth of a person by the penis of another person” or the “penetration,
however slight, of the labia majora or anus of a person by any body member or foreign
instrument manipulated by another person.”4 “Forcible compulsion” means “physical force
or threat, express or implied, of death or physical injury to or kidnapping of any person.”5
Physical force is any bodily impact, restraint, or confinement or threat thereof.6
Appellant contends that there was no substantial evidence of forcible compulsion
regarding Pierce. Appellant moved for a directed verdict at the conclusion of the State’s
case, contending that the State had failed to make a prima facie case. He argued:
[T]he State has failed to prove, with any sufficiency, that [appellant] engaged in sexual
intercourse or deviant sexual activity by forcible compulsion, and I think the State’s
Exhibit, I want to say three, is her written statement. That was done back in 2020. I
think there is a reason that those charges had not been brought. I understand what
2
Clevenger v. State, 2025 Ark. 128, 719 S.W.3d 453.
3
(Repl. 2024).
4
Ark. Code Ann. § 5-14-101(1) (Repl. 2024).
5
Ark. Code Ann. § 5-14-101(3).
6
Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994).
2
she says now. But there is no sufficient evidence for Count Three to proceed and
should be, the Court should enter a directed verdict for the Defense in that case.
The motion was denied, and appellant was sentenced to forty years’ imprisonment for the
rape of Pierce. The State maintains that this argument is not preserved for our review
because appellant failed to make the specific argument below that he is now making on
appeal. Arkansas Rule of Criminal Procedure 33.1(c) requires that a motion for directed
verdict “specify the respect in which the evidence is deficient.” Rule 33.1 is strictly
construed.7 A general motion does not satisfy the requirements of specificity mandated in
Rule 33.1.8 Appellant’s directed-verdict motion before the circuit court was only a recitation
of the elements of rape. He did not identify the specific element that he now claims the
State failed to prove. Because appellant’s motion did not inform the circuit court of the
specific issue in the State’s case that is now being challenged, this issue is not preserved for
review.9
Appellant also argues that the evidence was insufficient to support his incest
conviction. A person commits incest if the person, being sixteen years of age or older,
purports to marry, has sexual intercourse with, or engages in deviate sexual activity with
another person sixteen years of age or older whom the actor knows to be a step grandchild
7
Richardson v. State, 2020 Ark. App. 25, 595 S.W.3d 1.
8
Daniels v. State, 2018 Ark. App. 334, 551 S.W.3d 428.
9
See Lee v. State, 2013 Ark. App. 209.
3
or adopted grandchild.10 Appellant contends that the evidence was insufficient to prove that
the alleged victim was sixteen years of age or older. At the conclusion of the State’s case,
appellant made the following directed-verdict motion:
The State has failed to prove, with any sufficiency, that the person, being 16 years of
age or over, purports to marry or has sexual intercourse with or engages in deviate
sexual activity with another person 16 years of age older whom the actor knows to be
a step-grandchild or adopted grandchild. We ask that the State or the Court, I’m
sorry, enter a directed verdict on Count Four to the charge.
The circuit court denied the motion, and appellant was sentenced to ten years’
imprisonment. The State again argues that appellant’s argument is not preserved for our
review because appellant failed to make this specific argument to the circuit court. We agree.
Just as with his directed-verdict motion for rape, appellant’s directed-verdict motion for the
charge of incest was also nothing more than a recitation of the elements of the crime. He
failed to point out what, specifically, the State’s evidence lacked. Because he did not make
the argument that he now makes on appeal, it is not preserved.
As his last point on appeal, appellant argues that the circuit court abused its discretion
by allowing the State to refer to the alleged victims as “victims” based on a misreading of
Friday v. State. He argues that the use of the term “victim” characterized him as a criminal,
shattering his fundamental right to a presumption of innocence and improperly shifting the
burden to him to prove that a crime had not occurred. In Friday, our supreme court affirmed
the circuit court’s denial of the appellant’s motion in limine to preclude the State from
10
Ark. Code Ann. § 5-26-202(5) (Repl. 2024).
4
referring to two prosecuting witnesses as “victims.” The supreme court held that the
appellant did not suffer prejudice because (1) it was readily apparent to the jury that in the
State’s theory of the case, the two witnesses were victims; and (2) the law enforcement
officers’ references to the witnesses as victims were in the context of the officers’ testimony
recounting their role in the investigation. The supreme court also held that the circuit
court’s use of the word “victim” during a bench conference with a potential juror who was
ultimately released did not improperly influence the jury. The appellant in Friday relied on
Sharp v. State11 and Bateman v. State12 to support his argument. In Sharp, the appellant was
granted a new trial based on statements by the trial court that could have intimated an
opinion in the case and improperly influenced the jury. Similarly, in, Bateman, the court of
appeals addressed the circuit court’s use of the word “victim” during voir dire. However, the
court of appeals affirmed the denial of Bateman’s motion for mistrial, holding that the
court’s statement was not prejudicial even though the term should not have been used.
In this case, appellant objected to the use of the word “victims” following opening
statements and asked that either “alleged victims” or complaining witness” be used instead.
The circuit court agreed to only use the term “alleged victims” but stated that, based on
Friday, the State was not subject to that requirement. Appellant asked to have a running
objection, and the circuit court granted it. During the defense’s case, Christina Bussey, a
11
51 Ark. 147, 10 S.W. 228 (1889).
12
2 Ark. App. 339, 621 S.W.2d 232 (1981).
5
criminal investigator with the Arkansas State Police, testified that she had a synopsis of every
interview that she conducted with “victims, witnesses[s].” She also stated that she does not
write down every word a “victim or witnesses” use. In the State’s preliminary closing
argument, it asserted that it had presented as witnesses “the four young ladies, the four
victims, the four survivors who dealt with [appellant], but [it] also brought other people.” It
also used the term “victims” two other times in the same preliminary closing. Appellant
relies on the same cases used by the appellant in Friday to support his contention that the
circuit court erred by allowing the State and its witnesses to use the term “victim” instead of
“alleged victim.” However, just as in Friday, the cited cases are distinguishable. In this case,
the circuit court referred to the witnesses as “alleged victims,” and there is no allegation that
it used any other reference for them. The cases cited by appellant deal with the circuit court’s
use of the term “victims” in a jury trial, not the State’s or the State’s witnesses’ use of the
term. Just as in Friday, it was readily apparent to the jury that in the prosecution’s theory of
the case, the witnesses were, in fact, victims. This fact was made known during opening
statements, where the State referred to the witnesses as victims at least twice without
objection. Also, Bussey’s use of the word “victims” and witnesses when testifying about the
synopsis of the interviews she conducted was her recounting her role in the investigation.
We hold that the circuit court did not misread Friday and that there is no prejudicial error
under these circumstances. Accordingly, we affirm.
Affirmed.
VIRDEN and WOOD, JJ., agree.
6
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Tim Griffin, Att’y Gen., by: Dalton Cook, Ass’t Att’y Gen., for appellee.
7