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Jackson v. State

Court of Appeals of Arkansas, Division II

April 4, 2018

ANDREW LEE JACKSON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-15-226] HONORABLE MARCIA R. HEARNSBERGER, JUDGE

          C. Shane Ethridge, for appellant.

          Leslie Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.

          RAYMOND R. ABRAMSON, JUDGE

         A 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.

         During 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 appeal.

         Moreover, 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 it.

         In 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.

         The 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. Id.

         Rule 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).

         The 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 ...


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