CHRISTOPHER R. VAUGHN, APPELLANT
STATE OF ARKANSAS, APPELLEE
FROM THE HOWARD COUNTY CIRCUIT COURT [NO. 31CR-13-64]
HONORABLE CHARLES A. YEARGAN, JUDGE
Shane Ethridge, for appellant.
Rutledge, Att'y Gen., by: Ashley Priest, Ass't
Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge
Christopher Vaughn appeals after the Howard County Circuit
Court entered an order denying his petition for
postconviction relief filed pursuant to Arkansas Rule of
Criminal Procedure 37.1. For reversal, he contends that the
circuit court erred because trial counsel was
constitutionally ineffective for not properly preserving
issues and arguments for purposes of appeal. We affirm.
the guilt phase of his trial, Stephen Wakefield, a deputy
sheriff for Howard County, testified that he stopped
appellant after he had 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. During a
subsequent search, the deputy observed that appellant had a
black pistol by his feet, and he found a beer bottle near the
floorboard in the back seat that had spilled over the back
seat. Appellant 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.
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 subsequent charged but untried
felonies: possession of a firearm and delivery of
methamphetamine. Pursuant to Thomas v. State, 2012
Ark.App. 466, 422 S.W.3d 217, appellant argued that the
subsequent untried felonies were not relevant and should be
excluded because they were not sufficiently similar to the
offense for which he was presently being charged.
Additionally, he briefly argued that to allow the
introduction of these two subsequent untried felonies would
violate his constitutional right to remain silent as it
pertains to those two charges.
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 him, and he does not have the
ability to respond to the charges without giving up his right
to remain silent in a sentencing hearing.
And so, as a result, Judge, we believe that that one charge
for sure. We also believe, constitutionally, that the charge
Possession by Certain Persons is also unconstitutional, his
right to a fair trial, his right to remain silent; but,
definitely on the case that involves a drug case that has
nothing to do with Possession by Certain Person, it is highly
prejudicial. It's not relevant. They are not similar
facts. They won't aggravate that he is accused of being
involved in delivery of a controlled substance, which has not
been proven. So we would ask that that particular, we would
ask that they both be, the State be limited to not use this
evidence relating to those two charges.
additional arguments made by counsel regarding whether the
charges were relevant, the court made the following oral
Well, I would have tended to agree with you two or three days
ago before reading some of these cases, the evidence of other
crimes that are not similar to the one he's charged with
here or the one, I guess, his underlying charge. But my
reading of Thomas is strictly different from yours.
The way I understood was they were saying any evidence of
aggravating circumstances showing his propensity to engage in
similar conduct, and they quote Brown v. State. And
then it says it's relevant evidence if the
Defendant's character or evidence with aggravating
circumstances. I think your reading of the cases is not
consistent with the Supreme Court.
. . . .
We are in front of the jury and we are whispering. I know
from Brown and Davis and Thomas
and Crawford, that there were other charges that
were not similar to what he's charged with, so I am going
to have to deny your motion.
While the trial court did rule that the subsequent untried
felonies were sufficiently relevant to the current charges,
it never specifically ruled on appellant's constitutional