Jenkins v. State

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          APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT [NO. 54CR-16-145], HONORABLE RICHARD L. PROCTOR, JUDGE

         Chad M. Green, Little Rock, for appellant.

         Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.

         OPINION

         KENNETH 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.

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          I. Relevant Facts

          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 appellant’s 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 degree.

         In a pretrial hearing, appellant objected to the State’s 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 appellant’s 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.

          On the day of trial and before the State made its opening statement, appellant objected to the State’s 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 victim’s testimony. The trial court ultimately ruled as follows:

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 they’ve not been admitted, they may be talked about during the opening, but may not be shown or published until they are admitted.

          During the State’s opening statements, appellant made multiple objections and motions for mistrial. However, the trial court denied appellant’s motions for mistrial.

          After opening statements, appellant objected to the State’s presenting the testimony of John Blackmon with the Arkansas State Police because Mr. Blackmon’s name and address had not been disclosed to the defense during discovery. Mr. Blackmon apparently was responsible for extracting the text messages exchanged on appellant’s and the victim’s 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 testimony.

          James Morgan, A.S.’s stepfather, testified that he and his family had attended appellant’s 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

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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 appellant’s 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 appellant’s cell phone, she submitted it through the appropriate chain of custody to Mr. Blackmon for further examination.

          Tasha 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.

          A.S. 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 appellant’s 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.

          M.B. 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 you."

          Vince Wilson testified that he was at appellant’s 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 noon.

          Francine Hawkins testified that she knows appellant and is a member of appellant’s 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. Hawkins’s 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.

          The jury convicted appellant of sexual assault in the first degree, and this appeal followed.

          II. 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

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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 court’s 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).

         The first motion for mistrial raised in appellant’s brief on appeal was made during the State’s opening statement. Initially, appellant objected when the State told the jury that appellant’s phone number was saved in the victim’s 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 we’ve got a series of text messages between fifteen (15) year old [A.S.] and sixty-seven (67) ...