FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-17-559]
HONORABLE JOHN HOMER WRIGHT, JUDGE.
Firm, PLLC, by: Jason R. Davis, for appellant.
Rutledge, Att'y Gen., by: Jason Michael Johnson,
Ass't Att'y Gen., for appellee.
KENNETH S. HIXSON, JUDGE.
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
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.
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
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
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
the probative value of this evidence was outweighed by the
prejudice under Arkansas Rule of Evidence 403. The following
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 ...