FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-17-559],
HONORABLE JOHN HOMER WRIGHT, JUDGE
Firm, PLLC, by: Jason R. Davis, for appellant.
Rutledge, Atty Gen., by: Jason Michael Johnson, Asst Atty
Gen., for appellee.
S. HIXSON, Judge
Appellant Milton Peebles III pleaded guilty to second-degree
sexual assault and agreed to be sentenced by a jury. At the
sentencing hearing, over appellants objection, the State
elicited testimony from a police officer about sixty-seven
images of nude juveniles found on appellants computer. After
the hearing, the jury sentenced
Peebles to twenty years in prison, which is the maximum
sentence for this offense. Peebles argues on appeal that the
trial court erred in admitting this evidence without
conducting a proper analysis under Arkansas Rule of Evidence
403, which was the basis for appellants objection below. We
agree, and we reverse and remand.
a defendant ordinarily may not appeal from a guilty plea,
there is an exception to this rule when the issue on appeal
involves an evidentiary error that arose after the plea but
during the sentencing phase of the trial. Wooley v.
State, 2016 Ark.App. 343, 2016 WL 3522185. Such is the
case here, so this appeal is properly before our court.
was charged pursuant to Ark. Code Ann. § 5-14-125(a)(3)
(Supp. 2017), which provides that a person commits sexual
assault in the second degree if, being eighteen years of age
or older, he engages in sexual contact with another person
who is less than fourteen years of age. The State alleged
that Peebles, who is age fifty-five, grabbed the buttocks of
an eleven-year-old girl named A.A. In the same criminal
information, Peebles was also charged with sixty-seven counts
of possessing matter depicting sexually explicit conduct
involving children. The trial court granted Peebles motion
to sever the second-degree sexual assault charge from the
sixty-seven counts of possessing child pornography. Peebles
then pleaded guilty to committing second-degree sexual
Peebles and A.A. were neighbors. A.A. would visit Peebles at
his house, and Peebles would give A.A. a toy or some candy in
exchange for a hug. During these hugs, Peebles would
sometimes slide his hand across A.A.s buttocks. One day when
A.A. was at Peebles house, she asked to use his cell phone.
A.A. discovered that Peebles phone contained pictures of her
breasts and buttocks while she was clothed. These pictures
were taken without her knowledge. A.A. used her phone to take
photographs of these pictures. A.A. showed her parents the
photographs and also told them how Peebles had been touching
her. A.A.s parents contacted the police.
Peebles consented to a police interview at his home. During
the interview, Peebles admitted that he had intentionally
touched A.A.s buttocks during their hugs. Peebles further
acknowledged taking pictures of A.A. on his phone for the
purpose of masturbating. When asked by the police whether
Peebles had any inappropriate material on any other
electronic devices, Peebles advised that his computer
contained still images of adults and juveniles in various
states of nudity. The police obtained a warrant to search
Peebles computer and found that it contained sixty-seven
images of nude children. Peebles computer contained no
images of A.A.
Peebles pleaded guilty to second-degree sexual assault, the
case proceeded to a sentencing hearing before a jury. At the
outset of the hearing, the State announced its intention to
introduce testimony concerning the child pornography found on
Peebles computer. The State did not seek to admit the images
themselves but argued that the case law established that
testimony regarding Peebles possession of the images was
relevant character evidence during sentencing. Peebles
objected to any reference to the images, arguing that ...