Reciting Offense Elements Does Not Preserve a Sufficiency Challenge Without Identifying the Missing Proof

1. Introduction

In Jesse Spaar v. State of Arkansas, the Supreme Court of Arkansas affirmed seven convictions arising from the sexual abuse of a young child. The decision principally reinforces a strict preservation rule: a defendant challenging the sufficiency of the evidence must identify the particular evidentiary deficiency in a timely directed-verdict motion. Merely asserting that the prosecution failed to establish a prima facie case and reciting an offense’s elements does not preserve an element-specific argument for appeal.

The majority also addressed the evidence supporting each conviction, notwithstanding the preservation failure. That additional analysis prompted a concurrence arguing that the court should have stopped once it determined that the appellate challenges were unpreserved. The opinion therefore has two important dimensions: the specificity required to preserve sufficiency arguments and the proper limits of appellate decision-making after procedural default.

Background and Parties

Jesse Spaar, the appellant, began a relationship with the victim’s mother in June 2020. The victim, identified as MV, was then six years old. MV and her mother moved into Spaar’s home, and the relationship ended in September 2020. MV later testified that Spaar sexually abused her during that period, exposed her to pornography, and threatened her family if she disclosed the abuse.

The allegations emerged in March 2023 during an Arkansas State Police investigation concerning an unspecified health issue affecting MV’s younger brother. After MV disclosed the abuse, police searched Spaar’s home and found sexual devices and substantial quantities of pornography.

The State of Arkansas prosecuted Spaar in the Faulkner County Circuit Court. A jury convicted him of rape, attempted rape, three counts of second-degree sexual assault, sexually grooming a child, and sexual indecency with a child. The circuit court imposed life imprisonment plus 1,968 months—164 years—to run consecutively to the life sentence.

Questions Presented

• Did Spaar preserve his sufficiency challenges by making directed-verdict motions that recited the statutory elements but did not identify the missing proof?
• If considered on their merits, did the evidence sufficiently establish the challenged elements of all seven offenses?
• Should an appellate court address those merits after finding that the challenges were not preserved?

2. Summary of the Opinion

Justice Nicholas J. Bronni’s majority opinion affirmed on two grounds.

First, the challenges were unpreserved. Arkansas Rule of Criminal Procedure 33.1 requires a defendant to move for a directed verdict at the close of the prosecution’s case and again at the close of all the evidence, specifying how the evidence is deficient. Spaar made motions at both required stages, but neither explained which elements lacked evidentiary support. His more specific appellate arguments therefore were not preserved.

Second, the majority concluded that the challenges would also fail on the merits. Viewed favorably to the verdict, MV’s testimony and the surrounding evidence supported penetration, attempted penetration, sexually motivated contact, grooming through sexually explicit material, and exposure for sexual gratification.

Justice Shawn A. Womack concurred in the judgment, joined by Chief Justice Baker and Justice Hudson. He agreed that preservation was lacking but objected to the merits discussion as unnecessary and advisory. Special Justice Cory Cox joined the majority opinion; Justice Webb did not participate.

3. Legal Analysis

A. Preservation Requires Identifying the Evidentiary Gap

The decisive procedural rule appears in Arkansas Rule of Criminal Procedure 33.1(a) and (c). Compliance requires both timely motions and sufficient specificity. A defendant must tell the trial court not merely that the prosecution’s case is inadequate, but how it is inadequate.

Spaar satisfied the timing requirement. His failure concerned content: he asserted that the State had “failed to make a prima facie case” and recited each offense’s elements without identifying which element was unsupported or explaining the deficiency.

This distinction matters because listing the statutory elements does not reveal the defendant’s actual objection. A court hearing such a motion cannot know whether the defendant disputes identification, penetration, intent, age, or some other component of the offense. Nor can the prosecution determine what additional proof might address the objection.

The majority identified two purposes for specificity:

• Correction at trial: A sufficiently precise objection allows the State to seek to reopen its case and supply missing evidence.
• Proper appellate review: It prevents an appellate court from deciding an issue that was never meaningfully presented to the trial court.

The practical lesson is that a motion’s timing and its reference to statutory elements are not enough. The asserted evidentiary gap must be expressly identified. The opinion reinforces existing preservation doctrine rather than announcing a new exception or relaxing its application.

B. The Substantial-Evidence Standard

For its alternative merits analysis, the majority viewed the evidence in the light most favorable to the verdict. Under that approach, the appellate court does not retry the case, reweigh testimony, or substitute its credibility judgments for the jury’s.

The question is whether substantial evidence supports the verdict: evidence sufficiently forceful to support a conclusion beyond suspicion or conjecture. This standard permits reasonable inferences while preserving the jury’s responsibility to resolve conflicts in testimony.

C. Application to the Individual Convictions

Rape: Slight Penetration and the Child’s Description

Under Arkansas Code Annotated section 5-14-103(a)(3), as applicable to the conduct, rape included sexual intercourse or deviate sexual activity with a person younger than fourteen. Section 5-14-101(1)(B) defined the relevant deviate sexual activity to include an act of sexual gratification involving penetration, however slight, of the labia majora by a body member or foreign instrument.

Spaar did not dispute MV’s age. He challenged proof of penetration. MV testified that he placed a vibrator “inside” her, but she initially denied that description and changed her answer after the prosecutor illustrated “inside” by placing a pen in his ear.

Spaar argued that the demonstration was anatomically dissimilar and that MV’s resulting testimony could not establish statutory penetration. The court treated this as a challenge to the jury’s interpretation of the testimony. MV was ten at trial, and the jury could reasonably conclude that she initially misunderstood the word before clarifying her account.

The majority also emphasized that the statute requires only slight penetration of the labia majora, not proof of deeper insertion. MV’s description, considered with the other circumstances, supported the jury’s finding.

The ruling is nevertheless fact-specific. It does not establish that every external contact with a vibrator necessarily proves penetration. Nor did the court decide a separate evidentiary-admissibility challenge to the prosecutor’s demonstration. Its analysis concerned whether the record supported the verdict.

Attempted Rape: Purposeful Conduct Interrupted by Resistance

Section 5-3-201(a)(2) required purposeful conduct constituting a substantial step in a course of conduct intended to culminate in rape. MV testified that Spaar attempted to penetrate her digitally and that she stopped him by kicking him away.

That testimony supported both the intended offense and a substantial step toward completing it. The victim’s successful resistance did not defeat attempt liability; it explained why the attempted offense was not completed.

Second-Degree Sexual Assault: Inferring Sexual Gratification

As relevant here, section 5-14-125(a)(3) prohibited an adult eighteen or older from engaging in sexual contact with a person younger than fourteen. Section 5-14-101(12) defined sexual contact as sexually gratifying touching of specified intimate areas, directly or through clothing.

Spaar argued that the State failed to prove sexual gratification. The majority rejected that contention based on MV’s testimony about conduct apart from the rape and attempted rape: Spaar removed her clothing, touched intimate areas, placed her hands on his exposed genitals, and attempted to make her masturbate him.

The court permitted the jury to infer sexual gratification from the conduct and its context. The prosecution did not need an express admission from Spaar describing his subjective motivation.

Sexually Grooming a Child: Explicit Material Used in an Abusive Context

The applicable version of section 5-27-307(b) defined grooming as giving a child thirteen or younger sexually explicit material to entice or induce sexual intercourse, sexually explicit conduct, or deviate sexual activity. The opinion specifically identified the version effective from August 16, 2013, through August 4, 2025.

MV described videos showing naked people doing things children should not do, including “making babies.” She also testified that Spaar masturbated, used sexual devices, and abused her while the videos played. The search of his home disclosed substantial quantities of video pornography.

Spaar characterized MV’s account as too vague to establish that the videos were pornographic. The court rejected the suggestion that her young age prevented her descriptions from supporting that conclusion. Her testimony, the surrounding sexual conduct, and the search evidence permitted the necessary inference.

This reasoning does not make possession of pornography alone sufficient to prove grooming. The important connection was the evidence that Spaar showed the material to MV in circumstances linked to sexual conduct and abuse.

Sexual Indecency: Exposure Independently Supported the Conviction

The majority described solicitation or exposure of sex organs for sexual gratification as relevant statutory routes to liability. Spaar challenged proof of solicitation, but the court found that objection immaterial because the evidence supported exposure for sexual gratification.

MV testified that Spaar repeatedly undressed and masturbated in her presence. That evidence independently sustained the conviction on the exposure basis discussed by the court. The reasoning illustrates why disputing one statutory route does not establish insufficiency when another supported route remains.

4. Precedents Cited and Their Influence

Hartman v. State, 2015 Ark. 30, 454 S.W.3d 721

This decision supplied the rationale for requiring specific directed-verdict motions: specificity allows the State to reopen its case to provide missing proof and prevents appellate review of issues not presented below. It directly supported the majority’s conclusion that Spaar’s general assertions and recitation of elements were inadequate.

Matthews v. State, 2025 Ark. 213, 725 S.W.3d 16

The majority relied on this case for the favorable-to-the-verdict standard and the prohibition against appellate reweighing. It framed the entire alternative merits analysis, particularly the treatment of MV’s testimony and the jury’s inferences.

Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980)

Cited through Matthews v. State, this precedent supplied the foundational proposition that sufficiency review asks whether substantial evidence supports the verdict. Its role was doctrinal rather than a factual comparison with Spaar’s conduct.

Reaves v. State, 2025 Ark. 202, 725 S.W.3d 22

This case supplied the definition of substantial evidence as evidence capable of compelling a conclusion beyond suspicion or conjecture. It established the threshold against which the majority evaluated each challenged conviction.

McCauley v. State, 2023 Ark. 68, 663 S.W.3d 383

The court cited this decision for the proposition that uncorroborated testimony describing penetration may constitute substantial evidence supporting rape. It established that MV’s testimony could support the penetration finding without independent corroboration being indispensable.

McDaniels v. State, 2025 Ark. 139, 720 S.W.3d 82

This precedent served two distinct functions. The majority relied on it for deference to the jury’s credibility determinations and resolution of conflicting evidence, rejecting Spaar’s effort to convert inconsistencies into appellate insufficiency. The concurrence cited it for the preservation requirement, supporting the view that Rule 33.1 prevented merits review altogether.

Hale v. State, 2025 Ark. 45, 709 S.W.3d 796

The majority invoked this decision for the jury’s ability to use common sense when evaluating evidence. In Spaar’s case, that principle supported interpreting a child’s description in context rather than demanding technical anatomical terminology.

Hartley v. State, 2022 Ark. 197, 654 S.W.3d 802

This was the closest factual analogy concerning penetration. The quoted testimony involved a defendant making a minor hold a vibrator on her vagina. The court had upheld the conviction because the evidence supported penetration of the labia majora, even slightly. That analysis reinforced the distinction between statutory penetration and deeper insertion.

Haynie v. State, 2025 Ark. 46, 709 S.W.3d 46

Justice Womack cited this decision, alongside McDaniels v. State, to support ending the appeal on preservation grounds. It informed the concurrence’s procedural objection rather than the majority’s assessment of the evidence.

5. The Concurrence: Judicial Restraint and Advisory Analysis

The disagreement concerned the scope of the opinion, not its ultimate disposition. Justice Womack agreed that the convictions should be affirmed because Spaar had not preserved his challenges. He maintained, however, that Rule 33.1 barred the court from reaching their merits.

For the concurrence, the preservation ruling completed the necessary judicial task. Deciding whether the unpreserved claims would also fail supplied an answer to questions the court did not need to decide—an advisory opinion in his characterization.

This distinction matters when evaluating the decision’s precedential reach. The preservation ruling independently supports affirmance. The majority’s merits discussion provides guidance, but the concurrence expressly disputes the propriety of providing that guidance. The opinion does not resolve how later courts will classify every part of that alternative reasoning. It should not be described as unanimously endorsing merits review after a Rule 33.1 default.

6. Potential Impact

• Defense practice: Trial counsel must specify the allegedly unsupported element and the evidentiary deficiency, then renew the challenge at the required stage. A generic assertion of insufficient proof is inadequate.
• Child-victim testimony: The opinion reinforces contextual evaluation of a child’s descriptions. Imprecise vocabulary and conflicting answers do not automatically negate substantial evidence.
• Proof of intent: Sexual gratification and grooming purposes may be inferred from conduct and surrounding circumstances rather than proved solely through admissions.
• Statutory precision: Slight penetration and alternative routes to an offense must be assessed under the actual statutory language, not an assumed narrower definition.
• Temporal application: The grooming analysis concerns the statutory version governing the 2020 conduct. Its application to later conduct requires examination of the applicable statutory text.
• Appellate restraint: The concurrence highlights continuing tension over whether courts should address merits questions after procedural default resolves an appeal.

The decision does not determine a sentencing challenge, the admissibility of the prosecutor’s demonstration, or the requirements of the post-August 2025 grooming statute. Its conclusions should not be extended to those unaddressed issues.

7. Complex Concepts Simplified

Directed-verdict motion

A request that the trial judge rule that the prosecution’s evidence cannot legally support a conviction.

Preservation

Raising a sufficiently specific objection at the required time so that it remains available for appellate review.

Prima facie case

Evidence that, if accepted, establishes the required elements. Saying only that no prima facie case exists does not identify what proof is missing.

Substantial evidence

Evidence strong enough to support a conclusion without relying on mere suspicion or speculation.

Penetration “however slight”

The statute does not require deep insertion. Even slight penetration of the specified anatomy can satisfy the relevant requirement.

Substantial step

Purposeful conduct sufficiently directed toward completing the intended offense to support attempt liability, even though the offense is interrupted.

Uncorroborated testimony

Testimony without independent confirmation. Under the cited rape precedent, such testimony describing penetration may still be sufficient.

Advisory opinion

An answer to a legal question unnecessary to resolve the case. The concurrence used this term to criticize the majority’s alternative merits discussion.

8. Conclusion

Jesse Spaar v. State of Arkansas confirms that timely directed-verdict motions must do more than recite statutory elements: they must identify the missing proof. That preservation failure independently justified affirmance of all seven convictions.

The majority’s additional analysis reinforces established principles concerning child-victim testimony, slight penetration, circumstantial proof of sexual purpose, and deference to jury credibility determinations. The concurrence supplies an equally important institutional caution: once procedural default resolves an appeal, further merits analysis may exceed what judicial restraint requires.