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Pascuzzi v. State

Court of Appeals of Arkansas, Division III

April 20, 2016

STEVEN PASCUZZI, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

          APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT. NO. CR-14-520. HONORABLE MARCIA R. HEARNSBERGER, JUDGE.

         For APPELLANT: DALE EUGENE ADAMS.

         For APPELLEE: PAMELA RUMPZ, ATTORNEY GENERAL.

         BART F. VIRDEN, Judge. HIXSON and BROWN, JJ., agree.

          OPINION

          BART F. VIRDEN, Judge

         After appellant Steven L. Pascuzzi pleaded guilty to second-degree sexual assault, a Garland County jury sentenced him to five years' imprisonment.[1] On appeal, Pascuzzi argues that the trial court erred during the sentencing phase in not declaring a mistrial when the State improperly accused him of " inappropriate sexual contact" with his mother-in-law. We affirm but remand to correct an error in the sentencing order.[2]

          I. Testimony at Sentencing Phase

         Following Pascuzzi's guilty plea, a sentencing hearing was held before a jury. The victim, K.S., testified that she was eleven years old when Pascuzzi, whom she described as her " uncle-in-law," forced her to touch his penis while he masturbated. After K.S. reported the assault through the child-abuse hotline, Investigator Jennifer Tonseth with the Garland County Sheriff's Office interviewed Pascuzzi, who admitted that K.S.'s allegation was true.

         Pascuzzi conceded that he was babysitting K.S. and his four children at the time of the assault, and he testified that since his incarceration his children were being cared for by his mother-in-law. Pascuzzi denied assaulting any other children. The prosecutor then asked, " Would you agree with me that you've acted sexually inappropriate with your mother-in-law?" Defense counsel objected to the question on the bases that it was irrelevant and prejudicial and that " we have not heard any testimony about the mother-in-law." The prosecutor said, " Your Honor, [Pascuzzi]'s saying he's so sorry, that he wishes he could undo it again. I think the fact that if he's sexually inappropriate with other individuals indicates--." After some discussion, the prosecutor withdrew the question.

         II. Argument

         Pascuzzi argues that the trial court should have declared a mistrial following the prosecutor's improper and highly prejudicial question. Relying on the third exception in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), Pascuzzi argues that the trial court had a duty to intervene and correct the serious error. He contends that the question violated his fundamental right to a fair trial and tainted the minds of the jurors.

          III. Discussion

         Pascuzzi cites Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993), in which our supreme court reversed and remanded for a new trial after the prosecutor left an impression in the jurors' minds that complaints existed against the police-officer defendant for threatening to plant drugs on women if they refused him sex. The court noted that the prosecutor's questions and comments tainted the jury's decision and violated the fundamentals of the criminal-justice system.

          Dillon, however, is readily distinguishable in that defense counsel moved for a mistrial and sought an admonishment to the jury and, therefore, there was no argument concerning the Wicks exceptions. Here, Pascuzzi did not request a mistrial or an admonition to the jury. Further, once the prosecutor withdrew the question, Pascuzzi ...


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