FROM THE GARLAND COUNTY CIRCUIT COURT. NO. CR-14-520.
HONORABLE MARCIA R. HEARNSBERGER, JUDGE.
APPELLANT: DALE EUGENE ADAMS.
APPELLEE: PAMELA RUMPZ, ATTORNEY GENERAL.
VIRDEN, Judge. HIXSON and BROWN, JJ., agree.
F. VIRDEN, Judge
appellant Steven L. Pascuzzi pleaded guilty to second-degree
sexual assault, a Garland County jury sentenced him to five
years' imprisonment. 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.
I. Testimony at Sentencing Phase
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.
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.
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.
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
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,