FROM THE PHILLIPS COUNTY CIRCUIT COURT [NO. 54CR-16-145],
HONORABLE RICHARD L. PROCTOR, JUDGE
Green, Little Rock, for appellant.
Rutledge, Atty Gen., by: Rebecca Kane, Asst Atty Gen., for
S. HIXSON, Judge
Michael Jenkins appeals after he was convicted by a Phillips
County Circuit Court jury of sexual assault in the first
degree. He was sentenced to serve 180 months in the Arkansas
Department of Correction and ordered to pay a $15,000 fine.
On appeal, appellant contends that (1) the trial court erred
when it denied his motions for mistrial and (2) the trial
court erred by not intervening when the prosecutor made
improper comments during closing argument. We affirm.
Appellant was A.S.s pastor at The Church of the Living God
in Helena-West Helena. Appellant and A.S. had been exchanging
multiple texts for a significant period. Appellant
additionally had given A.S. money and had bought A.S. hair
extensions, shoes, and other presents. On June 17, 2017,
A.S.s parents dropped her off at appellants home to play
basketball. According to A.S., while she was there, appellant
penetrated her vagina with his penis while wearing a condom.
A.S. was only fifteen years old at the time. As such,
appellant was charged with sexual assault in the first
pretrial hearing, appellant objected to the States being
able to use approximately 700 text messages that were
allegedly exchanged between appellant and the victim on the
basis of Arkansas Rules of Evidence 402 and 403. After
hearing oral argument, the trial court denied appellants
motion in limine, finding that the text messages exchanged
after April 2016 were relevant and probative. Additionally,
the trial court acknowledged that there might be other issues
that could preclude the text messages from being introduced
into evidence but noted that it would rule on any further
objections as they came up at trial.
day of trial and before the State made its opening statement,
appellant objected to the States being able to show or read
any of the text messages in its opening statement. Defense
counsel explained that the messages had not been introduced
into evidence and thought that the trial court would
ultimately rule that they were inadmissible later during the
trial. The State responded that the opening statement was an
appropriate time for it to explain the evidence it
anticipated would be introduced at trial. The State
acknowledged that it was taking a risk by mentioning the text
messages because the text messages could later be deemed
inadmissible, but it equated the risk to telling a jury about
a murder weapon in an opening statement in a murder trial.
The State further explained that the text messages were a
substantial part of its case and would corroborate the
victims testimony. The trial court ultimately ruled as
Alright, these text messages are subject to authentication
and the Court rules that the messages are thought to be
probable, probative and relevant by the State.
Since theyve not been admitted, they may be talked about
during the opening, but may not be shown or published until
they are admitted.
the States opening statements, appellant made multiple
objections and motions for mistrial. However, the trial court
denied appellants motions for mistrial.
opening statements, appellant objected to the States
presenting the testimony of John Blackmon with the Arkansas
State Police because Mr. Blackmons name and address had not
been disclosed to the defense during discovery. Mr. Blackmon
apparently was responsible for extracting the text messages
exchanged on appellants and the victims phones and creating
the extraction report that contained the reproduction of
those messages. The trial court agreed with appellant and
ruled that Mr. Blackmon would not be permitted to testify,
and the extraction report was inadmissible without his
Morgan, A.S.s stepfather, testified that he and his family
had attended appellants church in West Helena. He allowed
appellant to pick up and drop off A.S. from his home for
various church-related activities. Mr. Morgan testified that
A.S. idolized appellant and would frequently talk about him.
Mr. Morgan explained that A.S. had not changed her
account of the incident and that she had not given him any
reason to doubt her account.
Corporal Cynthia Gamble with the Helena-West Helena Police
Department testified that she had received a complaint of
child sexual abuse on July 20, 2016. Corporal Gamble
testified that she was in charge of the investigation and
that A.S. had been interviewed at a forensic center for
abused children. She explained that A.S.s description of the
inside of appellants trailer accurately matched what
Corporal Gamble observed inside the trailer during her
investigation. Corporal Gamble testified that to her
knowledge, A.S. has never changed her story. Appellant
consented to the search of the trailer and to his cell phone.
However, no relevant DNA evidence was found. Regarding
appellants cell phone, she submitted it through the
appropriate chain of custody to Mr. Blackmon for further
Morgan, A.S.s mother, testified similarly to Mr. Morgan. She
explained that before the sexual assault, A.S. had spoken
highly of appellant and stated that she trusted him. Mrs.
Morgan admitted, however, that she did have a disagreement
with appellant over his relationship with A.S. before the
sexual assault. Approximately a year before the sexual
assault, Mrs. Morgan confronted appellant and asked him
whether he had been "fondling around" with A.S. He
told her that he would never do anything to a child, and she
accepted his answer. Mrs. Morgan found out about the sexual
assault a few days after it had happened.
testified that she had been fifteen years old at the time of
the sexual assault and that she was sixteen years old at the
time of the trial. A.S. testified that over time, she noticed
that appellant had been paying special attention to her. He
would give her money and buy her things. She would text
appellant nearly every day, and he later kissed her. A.S.
testified that in one text, appellant told her that he would
leave his wife for her if she was eighteen years old. A.S.
testified that after her stepfather dropped her off at
appellants trailer on June 17, 2016, appellant touched her
on her thigh and started rubbing on her. He subsequently
penetrated her vagina with his penis while wearing a condom.
was A.S.s fourteen-year-old good friend. M.B. explained that
A.S. had entrusted her with A.S.s secret that appellant had
been texting A.S. M.B. saw one of the text messages, which
said, "If you were 18 I would leave my wife for
Wilson testified that he was at appellants house installing
DirectTV on June 17, 2016, around 10:00 a.m. He did not see
anyone else at the home when he got there. However, he
noticed two girls playing basketball outside when he left at
Francine Hawkins testified that she knows appellant and is a
member of appellants church. Ms. Hawkins explained that A.S.
had several conversations with her about the incident. Ms.
Hawkins further testified that A.S. admitted to her on one
occasion that appellant had not raped her. However, A.S.
denied Ms. Hawkinss account when she was recalled on
rebuttal. Instead, A.S. testified that she did, in fact, tell
Ms. Hawkins that appellant had raped her, and Ms. Hawkins
told her that she wished she had been there to stop him.
jury convicted appellant of sexual assault in the first
degree, and this appeal followed.
Motion for Mistrial
Appellant argues that the trial court abused its discretion
when it denied his motions for mistrial. A mistrial is an
extreme remedy that should not be declared
unless there has been error so prejudicial that justice
cannot be served by continuing the trial or when the
fundamental fairness of the trial itself has been manifestly
affected. Britton v. State, 2014 Ark. 192');">2014 Ark. 192, 433
S.W.3d 856. The trial court has wide discretion in granting
or denying a motion for mistrial, and absent an abuse of that
discretion, the trial courts decision will not be disturbed
on appeal. Britton, supra. Among the factors we
consider on appeal is whether the defendant requested a
cautionary instruction or an admonition to the jury.
Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997).
Our supreme court has held that a cautionary instruction or
an admonition to the jury can make harmless any prejudice
that might occur. See Green v. State, 2013
Ark. 497, 430 S.W.3d 729. A mistrial is proper only if an
error is beyond repair and cannot be corrected by any
curative relief. McClinton v. State, 2015 Ark. 245,
464 S.W.3d 913. The failure of the defense to request an
admonition may negate the mistrial motion. Bragg,
supra. It is also true that the failure to give an
admonition or a cautionary instruction is not error when none
is requested. Id. "The bottom line on mistrials
is that the incident must be so prejudicial that the trial
cannot, in fairness, continue." Boyd v. State,
318 Ark. 799, 804, 889 S.W.2d 20, 22 (1994).
first motion for mistrial raised in appellants brief on
appeal was made during the States opening statement.
Initially, appellant objected when the State told the jury
that appellants phone number was saved in the victims phone
as "Dad" and that there was a text message that
read, "Come live with me." After a lengthy
discussion with defense counsel and the State, the trial
court clarified its prior ruling regarding how the State
could discuss the text messages in its opening statement. The
trial court explained that the State could tell the jury what
it anticipated the evidence would show at trial, including
references to the various text messages, but that it could
not simply read the text messages to the jury. Thereafter,
the State made the following comments to the jury:
Okay, so starting in April of 2016 weve got a series of text
messages between fifteen (15) year old [A.S.] and sixty-seven