APPEAL
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-17-1629]
HONORABLE ROBIN F. GREEN JUDGE.
Denton
and Zachary, PLLC, by: Justin Zachary, for appellant.
Leslie
Rutledge, Att'y Gen., by: Kent Holt, Ass't Att'y
Gen., for appellee.
LARRYD. VAUGHT, JUDGE.
Brandon
Philpott appeals his conviction by a Benton County Circuit
Court jury of one count of criminal mischief and one count of
domestic battering. He argues that the circuit court erred in
refusing to strike two potential jurors and in allowing the
State to introduce evidence of Philpott's prior bad acts.
We affirm.
This
case arises out of a July 29, 2018 domestic dispute between
Philpott and his mother, Pam, with whom he lived. Philpott
acknowledges in his brief that he became angry and began
throwing objects around the house and that during the
incident he threw an item at Pam that hit her and caused
serious injuries.
Prior
to trial, Philpott filed a motion in limine to exclude
evidence of his prior conviction for domestic battering.
Although the State argued that the prior conviction was
admissible under Rule 404(b) of the Arkansas Rules of
Criminal Procedure, the court granted Philpott's motion
to exclude it unless Philpott opened the door to such
testimony.
During
voir dire, a few panel members indicated a desire to hear
from the defendant and have him testify to his side of the
story. Philpott challenged two of the panel members for
cause-Mr. Spotts and Mr. Oxford-and the court denied both
requests to strike, finding that both men had indicated that
they could be fair and impartial. Philpott then used his last
peremptory challenge to strike Mr. Spotts but was forced to
accept Mr. Oxford. Although he stated prior to trial that he
did not intend to testify, Philpott did choose to testify. He
argues that this was due to the court's refusal to strike
Mr. Oxford, who had indicated a desire to hear him testify.
Philpott's
former wife testified at trial. During her cross-examination,
the State questioned her about Philpott's history of
destroying property when angry. Philpott objected, arguing
that the questions were prohibited under the court's
ruling on the motion in limine. The State argued that the
motion in limine and the court's ruling had covered only
his prior conviction for domestic battering, which was a
different issue than his habit of destroying property. The
circuit court allowed the testimony.
The
jury convicted Philpott on both counts and sentenced him to
thirty years' imprisonment and a $10, 000 fine. This
timely appeal follows.
"The
decision to excuse a juror for cause rests within the sound
discretion of the trial court and will not be reversed absent
an abuse of discretion." Holder v. State, 354
Ark. 364, 383, 124 S.W.3d 439, 452-53 (2003) (quoting
Nooner v. State, 322 Ark. 87, 907 S.W.2d 677
(1995)). "Persons comprising the venire are presumed to
be unbiased and qualified to serve." Holder,
354 Ark. at 383, 124 S.W.3d at 452-53 (quoting Taylor v.
State, 334 Ark. 339, 347, 974 S.W.2d 454, 459 (1998)).
The
admission or rejection of testimony is a matter within the
circuit court's sound discretion and will not be reversed
on appeal absent a manifest abuse of that discretion and a
showing of prejudice to the defendant. Solomon v.
State, 2010 Ark.App. 559, 379 S.W.3d 489. An abuse of
discretion is a high threshold that does not simply require
error in the circuit court's decision but requires that
the trial court acted improvidently, thoughtlessly, or
without due consideration. Harris v. State, 2018
Ark.App. 219, 547 S.W.3d 709.
Philpott's
first argument on appeal is that the circuit court erred in
denying his request to strike panel members Spotts and Oxford
for cause. Because Philpott exercised a peremptory challenge
to remove Spotts, his qualification to serve on the jury is
not properly before us on appeal. He did not actually serve
on the jury, and in Willis v. State our supreme
court explained:
[w]e do not address this claim of error because it pertains
to venirepersons that appellant excused through the use of
his peremptory challenges. It is well settled that the loss
of peremptory challenges cannot be reviewed on appeal. The
focus should not be on a venireperson who was peremptorily
challenged, but on the persons who actually sat on the jury.
Because Ms. Howard and Ms. Wooley were ...