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Rowland v. State

Court of Appeals of Arkansas, Division II

August 30, 2017

JEREMY CHARLES ROWLAND APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-15-405] HONORABLE CHARLES E. CLAWSON, JR., JUDGE

          Short Law Firm, by: Lee D. Short, for appellant.

          Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

          WAYMOND M. BROWN, JUDGE.

         Appellant appeals from the circuit court's June 14, 2016 sentencing order in which it found appellant guilty of sexual assault in the second degree and sentenced him to 204 months' imprisonment in the Arkansas Department of Correction. Appellant's sole point on appeal is that the circuit court erred by giving a jury instruction other than that found in the Arkansas Model Criminal Instructions (AMC instructions). We affirm.

         Appellant was charged by felony information filed on May 27, 2015, with sexual assault in the second degree, a Class "B" felony.[1] Appellee filed a combined motion and brief requesting a non-AMC instruction on sexual assault in the second degree. It argued that the "law is clear" regarding the definitions of "sexual gratification" and "temporary caretaker[, ]" but jury instruction AMI Crim. 2d 1403 fails to address either definition.[2] It asserted that both definitions were "important issues in the present case" because appellant (1) "may claim that any contact with the victim does not fall under sexual contact because it was not done for sexual gratification" and (2) "may claim that he was not a temporary caretaker, since this is one of the elements of Sexual Assault in the Second Degree." Appellee argued that it would be prejudiced "without a proper explanation of the law" regarding these two terms, which AMI Crim. 2d 1403 allegedly fails to do, and proffered its instruction. Appellant filed his objection to appellee's motion on June 27, 2016.

         A hearing on appellee's motion was held on July 13, 2016, prior to the trial on the matter scheduled for that day. Appellee reiterated its argument from its brief, stating that whether appellant was sexually gratified by his actions and whether appellant was a temporary caretaker of the victim were "apparently going to be issues" as anticipated by appellee, then "the jury should be properly instructed as to the definitions[.]" Appellant's counterargument, in full, was that "the standard instructions are a hundred percent on point."

         The circuit court ruled that whether appellant was a temporary caregiver was an element of the offense that appellee was required to prove and so, found that a definition of the term was "an appropriate thing." After being advised that "sexual gratification" was included in the definition of "sexual contact[, ]" the latter of which is an element of the offense of sexual assault in the second degree, the circuit court found that it would not go into the definition of sexual gratification "other than how it's-it is expressed in the definition of sexual contact for purposes of voir dire." It delayed its ruling on whether it would give a jury instruction on the definition of "sexual gratification."

         After appellee rested its case, the circuit court stated that it had advised appellee that it would not give the instruction on sexual assault in the second degree "that involved an expanded-or a definition of the terms [sic] of sexual gratification" and that appellee had prepared a substitute jury instruction which left out the definition of sexual gratification.[3] As permitted by the court, the jury instruction included a definition of "temporary caretaker." This instruction, given by the circuit court, was as follows:

Jeremy Rowland is charged with the offense of sexual assault in the second degree. To sustain this charge, the State must prove the following things beyond a reasonable doubt:
First, that Jeremy Rowland engaged in sexual contact [with K.C.] and, second, that [K.C.] was less than 18 years of age at the time of the alleged offense and, third, that Jeremy Rowland was at the time of the alleged offense a temporary caretaker of [K.C.] or a person in position of trust or authority over [K.C.]
It is no defense to the charge of sexual assault in the second degree that [K.C.] consented to the conduct.
And these definitions are applicable: Sexual contact means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs or buttocks or anus of a person or the breast of a female.
Temporary caretaker means a caretaker, usually not a parent, who has and exercises custodial responsibility for a child for a limited, usually a short period of ...

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