FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-15-405]
HONORABLE CHARLES E. CLAWSON, JR., JUDGE
Law Firm, by: Lee D. Short, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
WAYMOND M. BROWN, JUDGE.
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.
was charged by felony information filed on May 27, 2015, with
sexual assault in the second degree, a Class "B"
felony. 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. 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.
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."
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."
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. 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 ...