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Wallace v. State

Court of Appeals of Arkansas, Division I

September 26, 2018

BRANDON WALLACE APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO. 60CR-15-538] HONORABLE LEON JOHNSON, JUDGE

          William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

          Leslie Rutledge, Att'y Gen., by: Amanda Jegley, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, JUDGE

         Appellant Brandon Wallace was charged with rape and second-degree sexual assault allegedly committed against A.M. when she was thirteen years old. After a jury trial, Mr. Wallace was acquitted of rape but convicted of second-degree sexual assault. For this conviction Mr. Wallace was sentenced to fifteen years in prison, and he now appeals.

         On appeal, Mr. Wallace raises one argument. He argues that the trial court erred in failing to give the complete version of his proposed jury instruction pertaining to consciousness of guilt. We affirm.

         In 2014, Mr. Wallace lived with his then girlfriend of five years, Becky. Becky is A.M.'s mother. Also residing in the house were A.M. and her three younger siblings. Mr. Wallace is not the father of either A.M. or the second oldest child, but he is the father of the two youngest children. The State alleged that Mr. Wallace had sexually assaulted A.M. between September and November 2014. These incidents allegedly occurred when Becky, a night-shift ER nurse, was at work while Mr. Wallace was at home watching the children.

         Prior to trial, the State filed a motion of its intent to introduce testimony that after the allegations against him surfaced, Mr. Wallace purchased a gun and told one of the State's witnesses (Becky) that he was going to kill himself. The State also sought to introduce testimony that when Mr. Wallace was arrested, he asked the police to shoot him. Mr. Wallace filed a response to the State's motion, seeking to exclude this testimony on the grounds that this proposed evidence of his consciousness of guilt violated Arkansas Rules of Evidence 403 and 404(b). Mr. Wallace argued, among other things, that any probative value of the proposed testimony was outweighed by its unfair prejudice. After a pretrial hearing on the State's motion, the trial court denied Mr. Wallace's objection to the testimony and ruled it admissible.[1]

         A.M. testified at trial that she was born on December 28, 2000. A.M. stated that Mr. Wallace touched her inappropriately on multiple occasions beginning in September 2014. A.M. testified that the first time this happened Mr. Wallace came into her bedroom, and while she was lying down, he felt her breast, buttocks, and inner thigh through her clothing. A.M. stated that this happened while her mother was at work. According to A.M., on the following day Mr. Wallace warned her that if she told anyone what had happened he would kill her and her family. A.M. testified that over the next couple of months Mr. Wallace touched her in this manner about four more times over her clothing and touched her twice underneath her clothing.

         The last such occurrence happened on the night of November 6, 2014. A.M. stated that while her mother was at work, Mr. Wallace came into her bedroom and was touching her mainly on her inner thigh. A.M. told him to stop and then got angry and left the house. While A.M. was walking away from their house, Mr. Wallace followed her in his truck and was trying to get her to get into the truck to take her back home. The police arrived as A.M. and Mr. Wallace were arguing, and A.M. told the police that she did not want to go back to the house because Mr. Wallace rapes her there.

         Officer Keith Wilson testified that he arrested Mr. Wallace on the night of November 11, 2014. Officer Wilson testified that he approached Mr. Wallace's truck and that Mr. Wallace pulled out a cell phone, pointed it at the officers, and said "shoot me." Officer Wilson could tell it was a cell phone from the light of the cell phone, and he told the other officers not to shoot. Mr. Wallace was then taken into custody.

         A.M.'s mother, Becky, testified that she first became aware of the allegations against Mr. Wallace on the night of November 6, 2014, when she was contacted by the police. Becky stated that Mr. Wallace has not lived in their house since that time. Becky testified that a few days after these allegations surfaced but before Mr. Wallace was arrested, he approached her in her garage; he had a gun in his hand and was making statements about killing himself with the gun.

         After the State rested, Mr. Wallace made arguments to the trial court regarding his proposed jury instruction on consciousness of guilt. Mr. Wallace proffered the following instruction:

Members of the jury, you are instructed that evidence of other alleged crimes, wrongs or acts of Brandon Wallace may not be considered by you to prove the character of Brandon Wallace in order to ...

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