Vankirk v. State, 2011 Ark. 428

Vankirk was charged by information on January 21, 2010 with three counts of rape alleging acts between 2007 and 2009; the victim was his twelve-year-old niece, C.V.
Vankirk pled guilty to three counts and elected a jury in a bifurcated sentencing proceeding under Arkansas law.
At sentencing, the State moved to admit a videotaped interview of C.V. with a state police investigator in which she described years of abuse beginning at age five or six.
Vankirk objected, arguing the video violated the rules of evidence and his confrontation rights; the circuit court overruled, deeming the video victim-impact evidence admissible and not governed by sentencing rules.
The court conducted a sentencing trial before a jury; Vankirk testified about his own childhood molestation experiences.
The court sentenced Vankirk to three consecutive life terms; the conviction and sentence were appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the Confrontation Clause apply at jury sentencing?	Vankirk argues Sixth Amendment confrontation rights extend to sentencing.	Vankirk contends confrontation applies to sentencing; State argues it does not and that preservation/waiver issues bar review.	Yes; confrontation applies to jury sentencing and the video was testimonial.
Was the confrontation issue properly preserved or waived under state law?	Vankirk did not waive his Confrontation Clause rights under bifurcated sentencing rules.	State claims waiver under Rule 24.4 and Pardue apply.	Preserved; not waived under bifurcated-sentencing framework.
Was the videotaped interview testimonial and thus barred by the Confrontation Clause?	Video constitutes testimonial statements by a victim to a government official.	Video is not challenged on testimonial grounds; not an error if not testimonial.	Testimonial; implicates Confrontation Clause.
If error occurred, was it harmless under Van Arsdall factors?	Video was prejudicial and unchallengeable, not harmless.	Not explicitly contending; argues overall admissibility was proper.	Harmless error test not satisfied; error not harmless.
What is the proper standard of review for sentencing-confrontation questions in this jurisdiction?	Court should apply de novo review to constitutional interpretation.	Standard applied as framed; relies on existing precedent.	De novo review; the right extends to sentencing in this context.

Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial vs. non-testimonial statements and cross-examination focus)
Davis v. Washington, 547 U.S. 813 (U.S. 2006) (emergency statements presumptively non-testimonial to government official)
Williams v. New York, 337 U.S. 241 (U.S. 1949) (addressed judge's consideration of evidence in sentencing; due process context)
Pointer v. Texas, 380 U.S. 400 (U.S. 1965) (Confrontation right applicable to states via Fourteenth Amendment)
Hill v. State, 318 Ark. 408 (Ark. 1994) (bifurcated sentencing and admissibility standards in Arkansas)
Hale v. State, 343 Ark. 62 (Ark. 2000) (integration of confrontation rights with Arkansas constitutional provisions)