APPEAL
FROM THE PHILLIPS COUNTY CIRCUIT COURT [NO. 54CR-16-145]
HONORABLE RICHARD L. PROCTOR, JUDGE
Chad
M. Green, for appellant.
Leslie
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellee.
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.
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
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 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) year old fellow that's her preacher.
(Reviewing documents) Now, starting with stuff like that he
wants her to come live him. And she's saying ...