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Peebles v. State

Court of Appeals of Arkansas, Division I

October 23, 2019

MILTON PEEBLES III APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-17-559] HONORABLE JOHN HOMER WRIGHT, JUDGE.

          Davis Firm, PLLC, by: Jason R. Davis, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

          KENNETH 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 appellant's objection, the State elicited testimony from a police officer about sixty-seven images of nude juveniles found on appellant's 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 appellant's objection below. We agree, and we reverse and remand.

         Although 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. Such is the case here, so this appeal is properly before our court.

         Peebles 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 assault.[1]

         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.

         After 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 the probative value of this evidence was outweighed by the prejudice under Arkansas Rule of Evidence 403.[2] The following exchange occurred:

Trial Court: First off, I think your analysis is a phase one analysis, and I don't think that the courts have analyzed 404(b) [sic] evidence in [the] sentencing phase the same way they analyze it in the phase one phase.
Appellant's Counsel: Well, it has to be-
Trial Court: Relevant character evidence is-can be proffered by the State as well as the ...

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