Reaffirming Circumstantial Evidence Sufficiency and Strickland Review in Child Sexual Abuse Post-Conviction Cases

Introduction

Terry Eugene Break v. State of Arkansas, 2025 Ark. 95, is a post-conviction appeal in which the Supreme Court of Arkansas reaffirms two critical principles: first, that circumstantial evidence may suffice to prove the “sexual gratification or desire” element in child sexual offense statutes; and second, that Rule 37 ineffective-assistance-of-counsel claims must satisfy Strickland’s two-prong test by showing both deficient performance and resulting prejudice. The appellant, Terry Break, had been convicted in 2021 on multiple counts of rape, second-degree sexual assault, sexual indecency with a child, engaging children in sexually explicit conduct, and child pornography offenses. After his direct appeal failed, Break filed a Rule 37 petition alleging that his trial counsel performed deficiently in four respects. The Boone County Circuit Court denied relief on each claim, and the Supreme Court of Arkansas affirmed that denial on May 29, 2025.

Key issues:

Whether the State presented sufficient evidence—direct or circumstantial—to prove the element of sexual gratification or desire in child sexual offenses.
Whether trial counsel was ineffective for failing to object to various prosecutorial comments and to preserve appellate challenges.
The proper application of the Strickland v. Washington standard in Rule 37 post-conviction proceedings.

Summary of the Judgment

The Supreme Court of Arkansas, in an opinion by Associate Justice Shawn A. Womack, affirmed the Boone County Circuit Court’s denial of Break’s Rule 37 petition. The court reviewed four ineffective-assistance claims under Strickland’s two-prong test and concluded:

The record contained abundant circumstantial evidence—victim testimony, photographic evidence, and expert testimony on grooming—from which a jury could infer sexual gratification or desire. No direct-evidence rule applies.
The prosecutor’s closing remark labeling Break as a “proven liar” was a fair comment on Break’s own videotaped admissions; counsel’s decision not to object was a reasonable tactical choice.
The prosecutor’s remark in opening statements, asking jurors to note Break’s “answer, or lack thereof” in his custody interview, referred to recorded statements—not silence at trial—and did not shift the burden of proof.
The reference to Psalms 82 in closing was not shown to be so inflammatory as to require an objection in light of counsel’s broader trial strategy and the overwhelming evidence against Break.

Finding neither deficient performance nor prejudice, the court affirmed.

Analysis

Precedents Cited

Strickland v. Washington, 466 U.S. 668 (1984) – Establishes the two-prong test for ineffective assistance (deficiency + prejudice).
Break v. State, 2022 Ark. 219, 655 S.W.3d 303 – Direct appeal decision, reaffirming that circumstantial evidence may establish sexual gratification.
Springs v. State, 2012 Ark. 87, 387 S.W.3d 143 – Standard of review for Rule 37 appeals; clearly erroneous test.
Caple v. State, 2020 Ark. 340, 609 S.W.3d 630 and Rounsaville v. State, 2008 Ark. 374, 288 S.W.3d 213 – Cases holding that a naturally plausible motive (sexual gratification) obviates the need for direct evidence.
Nichols v. State, 2017 Ark. 129, 517 S.W.3d 404 – Tactical choices on objections during closing are entitled to deference absent egregious misstatements.

Legal Reasoning

The court applied Strickland’s presumption that counsel acted reasonably unless the petitioner identifies specific, unreasonable errors. Break’s arguments failed at both prongs:

Deficient Performance: Each challenged omission (no sufficiency objection, no hearsay/burden-shifting objection, no Bible-reference objection) was either meritless under existing law or reasonably strategic. Counsel is not deficient for declining to raise baseless points.
Prejudice: Even if an objection had been meritorious, Break could not show a reasonable probability of a different outcome given the overwhelming evidence (victim testimony, photographs, recorded admissions) and the jury instructions on burden of proof and credibility.

Impact

This decision reinforces several important takeaways:

Defense counsel need not pursue meritless sufficiency arguments when the crime’s nature and victim testimony supply at least circumstantial proof of sexual gratification.
Prosecutorial comments grounded in the record (e.g., a defendant’s own statements) are unlikely to be deemed improper—and tactical decisions not to object will survive Strickland scrutiny.
Rule 37 petitioners must present concrete evidence at post-conviction hearings regarding counsel’s deliberations to overcome the presumption of reasonable performance.
The ruling clarifies that references to a defendant’s recorded interview do not implicate Fifth Amendment burden-shifting concerns when context shows jurors are invited to assess demeanor, not silence.

Future post-conviction petitions in Arkansas will face a high bar when seeking to overturn convictions on ineffective-assistance grounds in child sexual abuse cases.

Complex Concepts Simplified

Strickland Two-Prong Test: To win an ineffective-assistance claim, you must prove (1) counsel’s performance was so poor it fell below professional norms, and (2) the poor performance likely changed the trial outcome.
Circumstantial Evidence of Sexual Gratification: Courts allow jury inferences of motive when the conduct (e.g., repeated sexual acts, grooming behaviors, photographs) naturally aligns with a desire for sexual gratification.
Burdens of Proof and Counsel Objections: Prosecutors may refer to evidence the defendant actually produced (e.g., videotaped interviews). Such references do not shift the burden to the defendant if the court properly instructs jurors that the State must prove guilt beyond a reasonable doubt and that the defendant need not testify.
Strategic Litigation Decisions: Choices about which objections to lodge (or not) often reflect broader trial strategies and are judged with great deference on post-conviction review.

Conclusion

The Supreme Court of Arkansas in 2025 Ark. 95 reaffirms that circumstantial evidence may fully satisfy the “sexual gratification or desire” element of child sexual offenses and that a Rule 37 petitioner must identify concrete, meritorious grounds and evidentiary support to establish Strickland deficiency and prejudice. Terry Break’s post-conviction challenge fell short on every front: none of his proposed objections or arguments were meritorious under Arkansas law, and the strength of the State’s case precluded any showing of likely prejudice. This ruling thus strengthens prosecutorial and appellate confidence in delegated Strickland deference and underscores the importance of strategic trial management in serious felony cases.