FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-15-226]
HONORABLE MARCIA R. HEARNSBERGER, JUDGE
Shane Ethridge, for appellant.
Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE
Garland County jury convicted Andrew Lee Jackson of two
counts of rape and sentenced him to 40 years'
imprisonment in the Arkansas Department of Correction (ADC)
for each conviction, to be served consecutively. On appeal,
Jackson does not challenge the sufficiency of the evidence to
support his convictions. Rather, he argues that the circuit
court erred by denying his request for a nonmodel jury
instruction and by improperly limiting his cross-examination
of Sergeant Michael Wright. We disagree and affirm.
Jackson's trial, the jury heard evidence regarding the
sexual relationships Jackson had with two teenaged girls,
I.S. and her sister, M.S. I.S. was thirteen years old and
M.S. was sixteen years old when Jackson, who was 28 years old
at the time and the girls' youth pastor, began having
sexual relations with them. Jackson's first point on
appeal is that the circuit court erred when it denied his
request for a jury instruction limiting the testimony of the
forensic examiner, Tracy Childress. This argument is not
preserved for our review. At trial, during a bench
conference, Jackson's counsel admitted his failure to
object stating, "Your Honor, I don't know how we fix
it at this point, but I screwed up right then by not
objecting to her talking about the credibility of the
girls' statements." In his appellate brief, he
writes, "[A]t that time it was too late for a
contemporaneous objection to the improper testimony and
counsel continued on with the case, " and argues that
because Childress made a direct statement that she believed
the girls to be credible and that this testimony should not
have been offered, he attempted to correct the problem by
presenting the jury with a nonmodel jury instruction to
direct the jurors to disregard Childress's testimony
regarding the girls' credibility.
It is a
well-settled general rule that we will not consider issues
raised for the first time on appeal; a contemporaneous
objection is required to preserve an issue for appeal.
Davis v. State, 2011 Ark.App. 561. Our supreme court
has recognized four narrow exceptions to the
contemporaneous-objection rule, known as the Wicks
exceptions. Wicks v. State, 270 Ark. 781, 606 S.W.2d
366 (1980); see also Springs v. State, 368 Ark. 256,
244 S.W.3d 683 (2006); Anderson v. State, 353 Ark.
384, 108 S.W.3d 592 (2003). These exceptions occur when (1) a
circuit court, in a death-penalty case, fails to bring to the
jury's attention a matter essential to its consideration
of the death penalty itself; (2) a circuit court errs at a
time when defense counsel has no knowledge of the error and
thus no opportunity to object; (3) a circuit court should
intervene on its own motion to correct a serious error; and
(4) the admission or exclusion of evidence affects a
defendant's substantial rights. Id. In the
instant case, none of the Wicks exceptions apply;
therefore, Jackson's first argument is not preserved for
we need not reach this issue because Jackson's counsel
also failed to preserve this argument because he did not
proffer his proposed nonmodel jury instruction into the
record. In order to preserve an objection to the circuit
court's failure to give an instruction, Jackson's
attorney must have made a proffer of the proposed instruction
to the court. E.g., Stewart v. State, 316
Ark. 153, 157, 870 S.W.2d 752, 755 (1994). That proffered
instruction must be included in both the record and abstract
to enable the appellate court to consider it. Id. at
158, 870 S.W.2d at 755. An instruction that is not contained
in the record is not preserved and will not be addressed.
Id. Here, the defense counsel did not proffer a
nonmodel jury instruction, and the record does not contain a
proposed nonmodel instruction. Accordingly, we do not address
Jackson's second and final point on appeal, he contends
that the circuit court abused its discretion when it
improperly limited the cross-examination of the State's
witness, Sergeant Michael Wright. Jackson's attorney
attempted to impeach Sergeant Wright by cross-examining him
regarding other child sex-abuse cases in which he had
arrested other suspects. Specifically, Jackson's attorney
sought to show that Sergeant Wright was biased against
Jackson and others whom Sergeant Wright had arrested for
child sex-abuse offenses in separate, unrelated cases. The
State objected to the relevance of Sergeant Wright's
arresting other people. The circuit court sustained the
State's objection, and Jackson's counsel was
prohibited from asking Sergeant Wright about unrelated cases.
On appeal, Jackson avers that the circuit court abused its
discretion. We disagree.
decision to admit or exclude evidence is within the sound
discretion of the circuit court, and appellate courts will
not reverse that decision absent a manifest abuse of
discretion. E.g., Maiden v. State, 2014
Ark. 294, at 4, 438 S.W.3d 263, 268; see also Rodgers v.
State, 360 Ark. 24, 27, 199 S.W.3d 625, 627 (2004)
(appellate courts review matters concerning the scope of
cross-examination under an abuse-of-discretion standard). The
abuse-of-discretion standard does not simply require error in
the circuit court's decision; rather, it requires that
the lower court act improvidently, thoughtlessly, or without
due consideration. E.g., Maiden, 2014 Ark.
294, at 4, 438 S.W.3d at 268. Furthermore, we will not
reverse an evidentiary ruling absent a showing of prejudice.
611 of the Arkansas Rules of Evidence provides:
(b) Scope of Cross-Examination. Cross-examination should be
limited to the subject matter of the direct examination and
matters affecting the credibility of the witness. The court
may, in the exercise of discretion, permit inquiry into
additional matters as if on direct examination.
Ark. R. Evid. 611(b) (2017).
circuit court has wide latitude to impose reasonable limits
on cross-examination based on concerns about confusion of
issues or interrogation that is only marginally relevant.
E.g., Bigger ...