APPEAL FROM THE HOWARD COUNTY CIRCUIT COURT. NO. CR 2013-64-2. HONORABLE CHARLES A. YEARGAN, JUDGE.
The Law Office of Darrell F. Brown, Jr., by: Darrell F. Brown, Jr., for appellant.
Dustin McDaniel, Att'y Gen., by: Eileen W. Harrison, Ass't Att'y Gen., for appellee.
CLIFF HOOFMAN, Judge. ABRAMSON and HIXSON, JJ., agree.
CLIFF HOOFMAN, Judge
Appellant Christopher Vaughn appeals after he was convicted by a Howard County jury of one count of possession of firearms by certain persons and was sentenced as a habitual offender to forty years' imprisonment in the Arkansas Department of Correction. On appeal, appellant contends that (1) the trial court abused its discretion in violation of his right to a fair trial and due process and (2) that the trial court abused its discretion in allowing the presentation of evidence of other charges against the appellant in the sentencing phase. We affirm.
Appellant was charged by information with possession of firearms by certain persons, resisting arrest, and drinking in public. During the guilt phase of his trial, the State's primary witness was Stephen Wakefield, a deputy sheriff for Howard County. He testified that he stopped appellant after he observed that appellant's vehicle did not have any tags and appellant was driving across the shoulder. While he was talking to appellant, he smelled alcohol from appellant and from inside the vehicle. Because appellant had an injury that prevented him from standing, Deputy Wakefield testified that he searched the car from the passenger side for alcohol. During the search, he observed that appellant had a black pistol by his feet. He also found a beer bottle near the floorboard in the back seat that had spilled over the back seat.
On behalf of appellant, Rhoshawnda Whitaker, appellant's girlfriend, testified that she was in the passenger seat of the vehicle with appellant when he was pulled over by Deputy Wakefield. She testified that she had spilled a beer in the floorboard and that she had a black pistol with her that she had not informed appellant that she had. She further testified that the pistol was on the passenger side of the vehicle by her and was not located by appellant. Subsequently, the jury found appellant guilty of possession of firearms by certain persons and not guilty of resisting arrest. The record reflects that appellant's charge for drinking in public was dismissed. Appellant does not contest the jury's verdict on appeal.
During the sentencing phase of his trial, the trial court first heard a motion in limine regarding whether to allow the State to admit evidence of two subsequently charged but untried felonies: possession of a firearm and delivery of methamphetamine. Appellant specifically argued the following:
Judge, it is our position, looking at the case law, specifically, State vs. Thomas. I do have the actual case, and reading over the additional cases that went with it, Crawford case, the Brown case, in those cases, and in the Thomas case, the Court stated that the reason why, that the offense must be relevant to the charge that he is facing at this time. The Court said that the acts were not similar acts. In that case, let me go back. The Court in that case, charged, the guy was charged with robberies. There was another robbery that was had, that had very similar circumstances in it.
The Court stated that because, as to relevance, because that case was similar to the offense to which he was being prosecuted and had been convicted on, that they allowed that in. But that there is a similarity that must be looked at by the Court as to the charges. For example, if a person is charged with a Theft of Property. If you look at it in the view of the State prior to the Thomas case, you could bring in a dog abuse case, a case that it was not related in any way to it. It does not, the fact that he's charged with a possession or delivery case of Methamphetamine, is not the same as a case involving Possession by Certain Persons of a Firearm, especially when that particular case did not involve a firearm.
And so it is our position, Judge, that in looking at the Thomas case and in looking back, also, at the Crawford and Brown case, that the acts, and in those cases, it mirrors the same way. Those acts that are used in the sentencing phase are all similar to the act that he's being charged for. And we think without that it's a violation of his Constitutional right. In addition to the fact that it is not relevant. That it is not, does not have any relation to the actual charged offense. Is prejudicial, of course, to ...