Cross v. State
2017 Ark. App. 652
| Ark. Ct. App. | 2017Background
- Brian Cross was charged with ten counts of sexual indecency with a child and one count of second-degree sexual assault; a Newton County jury convicted him of the sexual-assault charge and sentenced him to 18 years' imprisonment.
- Autumn Cross (appellant’s ex-wife) testified she and Cross engaged in sexual activity in front of her children and that Cross exposed and touched the seven-year-old; she later pleaded guilty to indecency with a child as an accomplice.
- The seven-year-old victim also testified about inappropriate touching by Cross while they lived in Arkansas.
- After the State’s testimony, Cross moved for a directed verdict on all counts; the circuit court granted the directed verdict on the ten indecency counts (Autumn was the only witness for those counts and had pleaded guilty) but denied the motion as to the sexual-assault count based on the victim’s testimony.
- Cross did not call additional witnesses, renewed his motion for directed verdict on the sexual-assault count (denied), and did not request an instruction directing the jury to disregard Autumn’s testimony after the court dismissed the indecency counts.
- On appeal Cross argued the trial court should have instructed the jury to disregard Autumn’s testimony as irrelevant and prejudicial to the remaining sexual-assault count; the Arkansas Court of Appeals held the issue was not preserved for appeal and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury should have been instructed to disregard Autumn’s testimony after directed verdict on indecency counts | Cross: Autumn’s testimony became irrelevant and prejudicial once indecency counts were dismissed, so jury should have been instructed to disregard it | State: No contemporaneous request or objection was made below; issue not preserved for appeal | Court: Issue not preserved; appellate review refused and conviction affirmed |
Key Cases Cited
- Tilley v. Malvern Nat’l Bank, 515 S.W.3d 636 (Ark. App. 2017) (appellate courts will not consider arguments raised for the first time on appeal)