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McMullin v. State

Court of Appeals of Arkansas, Division II

March 30, 2016

JIMMY CHRISTOPHER McMULLIN, APPELLANT,
v.
STATE OF ARKANSAS, APPELLEE

          APPEAL FROM THE POPE COUNTY CIRCUIT COURT. NOS. CR-2014-39; CR-2014-143; CR-2014-159. HONORABLE WILLIAM PEARSON, JUDGE.

         OMAR F. GREENE.

         RACHEL HURST KEMP.

         ATTORNEY GENERAL.

         M. MICHAEL KINARD, Judge. GLOVER and HOOFMAN, JJ., agree.

          OPINION

Page 819

          M. MICHAEL KINARD, Judge

         Jimmy Christopher McMullin appeals from his convictions at a jury trial of four counts of rape and two counts of sexual indecency with a child, for which he was sentenced as a habitual offender to concurrent terms totaling forty-five years' imprisonment. The offenses were alleged to have been committed against three children--a former stepchild, a child of a girlfriend, and a friend of appellant's daughter--while the children were visiting in appellant's home or while appellant accompanied the children on activities like fishing, camping, or swimming. Appellant does not challenge the sufficiency of the evidence to support the convictions. Instead, he makes three arguments that the trial court erred in the admission or exclusion of evidence. We find no merit in appellant's arguments. For reasons explained below, we affirm as modified and remand to the trial court for entry of a corrected sentencing order.

          Appellant first contends that the trial court erred in denying his request to introduce evidence of specific instances of his good conduct with children in the victims' age range. His attorney offered to present as defense witnesses two of appellant's adult friends and their two boys (not the victims in this case), who would testify that

[appellant] had been a mentor to these sons, that he had spent lots of time alone with them, taking them fishing. He had . . . camped overnight with them, and the boys would testify, too, that he never did anything inappropriate with them. And the parents would testify . . . that their sons never told them anything like that, and they were perfectly fine with [appellant] being alone with their sons.

         The prosecutor objected to appellant's request on grounds that evidence of specific instances of good conduct was inadmissible. The trial court agreed with the prosecutor, ruling that appellant could not offer evidence of specific instances of his conduct in order to show good character but that he could offer character evidence through reputation or opinion testimony.

          The admission of evidence is a matter that lies within the sound discretion of the trial court. Todd v. State, 2012 Ark.App. 626, 425 S.W.3d 25. The exercise of that discretion will not be reversed on appeal in the absence of a manifest abuse. Nelson v. State, 2013 Ark.App. 421. Rule 404(a) of the Arkansas Rules of Evidence discusses character evidence generally:

Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on ...

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