FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CR-2014-2195]
HONORABLE MARK LINDSAY, JUDGE
Knutson Law Firm, by: Gregg A. Knutson, for appellant.
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for appellee.
MARK KLAPPENBACH, Judge.
Gregory Wayne Finfrock was convicted by a jury in Washington
County Circuit Court of two counts of rape and one count of
sexual indecency with a child. The charges were based on
allegations that appellant, a man in his forties, digitally
and orally penetrated the vagina of a twelve-year-old girl,
MA; that appellant had MA place appellant's penis in her
mouth; that appellant sent nude photographs of himself to MA;
and that appellant exposed himself in person to MA. Appellant
admitted that he had committed sexual crimes against MA, the
daughter of appellant's friend who lived next door.
Appellant was sentenced by the jury to 30 years in prison on
each count of rape and to 6 years in prison on the count of
sexual indecency with a child. The trial judge imposed
consecutive sentences, resulting in a total term of 66 years
of incarceration. Appellant appeals, contending that the
trial court abused its discretion in refusing his request to
give the jury certain model jury instructions during the
sentencing phase that pertained to concurrent and consecutive
sentences, to transfer and parole eligibility, and to
application of the 70 percent rule. We affirm the trial
court's discretionary decision.
not reverse a trial court's decision to give or reject a
jury instruction unless the court abused its discretion.
Gay v. State, 2016 Ark. 433, __ S.W.3d ___;
Akers v. State, 2015 Ark.App. 352, 464 S.W.3d 483.
Abuse of discretion is a high threshold that does not simply
require error in the trial judge's decision but requires
that the trial judge acted improvidently, thoughtlessly, or
without due consideration. Craigg v. State, 2012
Ark. 387, 424 S.W.3d 264; Squyres v. State, 2015
Ark.App. 665, 476 S.W.3d 839. Additionally, absent a showing
of prejudice, we will not reverse. Miller v. State,
97 Ark.App. 285, 248 S.W.3d 487 (2007).
trial, but outside the presence of the jury, the prosecuting
attorney, the defense attorney, and the trial judge discussed
the matter of jury instructions. The prosecuting attorney
asserted that the State "would rather not have" the
model jury instructions on nonbinding recommendations for
consecutive sentences or on parole eligibility. Defense
counsel argued that the jury should be aware of the model
jury instructions regarding recommendations for consecutive
sentences, stating that
[the jury should have] the opportunity to decide that without
guessing because I don't want them back in the jury room
wondering . . . . If they've got a term of years, I want
to be able to talk to them in sentencing how the math is
going to work out… at least I can talk about it at
sentencing that they have some options . . . the fact that
it's not binding, you [the trial court] still have the
ultimate authority and discretion to give him whatever it is
if they come back with some numbers [of years]. . . . I would
like to be able to address that to them so that they
don't go back there and get confused.
regard to instructing the jury regarding parole eligibility,
defense counsel stated that it was the same argument and that
he did not want the jury to think appellant would serve only
half of a sentence prior to being released from prison.
Defense counsel stated that he wanted the jury to make the
best decision for the community knowing the parameters of how
the sentence would play out, that this was relevant to
sentencing, and that he wanted the opportunity to talk to the
jury about those instructions. The trial judge stated that he
would think about it during a break in the proceedings and
make a ruling when they reconvened.
the break, the trial judge announced which jury instructions
he intended to give the jury, which did not include the model
jury instructions that the defense wanted. Defense counsel
proffered those four jury instructions as defense exhibits,
which read as follows:
(1) AMCI2d 9112- Stage Two: Consecutive Sentence
You have convicted Gregory Wayne Finfrock of more than one
offense, and you may sentence him to a term of imprisonment
on each offense. If you sentence him to more than one term of
imprisonment, you may also make a recommendation that any two
or more terms of imprisonment be consecutive. A sentence to
consecutive terms of imprisonment means that the terms of
imprisonment will be added together to determine the total
term of imprisonment.
You are advised that a recommendation by you that terms of
imprisonment be consecutive will not ...