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Philpott v. State

Court of Appeals of Arkansas, Division III

May 29, 2019



          Denton and Zachary, PLLC, by: Justin Zachary, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kent Holt, Ass't Att'y Gen., for appellee.


         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 ...

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