Lead Opinion
[[Appellant Randy Paul Brown appeals from a judgment and commitment order, entered on November 24, 2008, finding him guilty of one count of sexual assault in the second degree. Brown also appeals from an order denying his motion for posttrial relief, entered on January 21, 2009. On appeal, Brown argues that the trial court erred by (1) permitting thirty-five year old uncharged misconduct evidence to be admitted during the sentencing phase of the trial; (2) not granting appellant a reduction in sentence in that the jury’s recommendation of sentence occurred as a result of passion and prejudice; and (3) denying appellant’s motion for posttrial relief as the verdict was contrary to the law and evidence. On February 17, 2010, the Arkansas Court of Appeals affirmed Brown’s conviction but reversed and remanded for resentencing. Brown v. State,
On November 2, 2007, the State filed a criminal information against Brown, charging him with five counts of sexual assault in the second degree pursuant to Arkansas Code Annotated section 5-14-125 (Repl. 2006). The charges arose out of allegations that Brown had sexually assaulted his next-door neighbor, B.R., who was eight years old at the time of the abuse. On November. 14, 2008, after Brown learned that the State intended to call Lou Ann Turri as a witness, he filed a motion in limine, seeking to exclude her testimony pursuant to Arkansas Rule of Evidence 404(b). According to the motion in limine, Turn’s proffered testimony was that when she was thirteen years old, thirty-four years prior to the alleged criminal conduct against B.R., she visited her cousin, Brown’s wife, and Brown initiated sexual contact with her. The circuit court heard the matter at an omnibus hearing on November 18, 2008, after which it granted the motion. The court specifically found that while relevant, Turn’s testimony would be more prejudicial than probative.
Following a two-day jury trial, on November 18 and 19, 2008, Brown was convicted of one count of sexual assault in the second degree.
hAfter the jury verdict was announced, the circuit court held an in camera hearing in which the State indicated its intent to introduce Turn’s testimony during the sentencing phase of the trial. The trial court heard the proffered testimony of Turri again as well as arguments by the State and defense counsel, after which it ruled that Turn’s testimony was relevant in sentencing as evidence of the defendant’s character and as an aggravating circumstance.
The jury heard testimony at the penalty phase, including that of Turri, and recommended the maximum sentence of twenty years’ incarceration in the Arkansas Department of Correction. The circuit court then sentenced Brown in accordance with the jury’s recommendation. On December 23, 2008, Brown filed a motion for posttrial relief, again asserting that it was error to admit Turri’s testimony at sentencing. He sought a reduction in sentence, or, in the alternative, a new trial. The motion also sought a new trial on guilt because, according to Brown, the jury’s verdict was contrary to the law and evidence because the State’s witnesses “should not be credited.” The circuit court heard the motion on January 21, 2009, and announced its intention to deny the motion on all three points. An order denying the motion for posttrial relief was entered the same day.
On January 28, 2009, Brown filed a timely notice of appeal to the Arkansas Court of Appeals. A unanimous three-judge panel affirmed Brown’s conviction and reversed and remanded for resentenc-ing, finding that the circuit court erred in admitting Turri’s testimony at the sentencing phase of the trial.
I. Sufficiency of the Evidence
Because Brown’s third point on appeal is a challenge to the sufficiency of the evidence, double-jeopardy concerns require us to address it first. See, e.g., Cockrell v. State,
On appeal, Brown contends that the jury’s verdict finding him guilty of sexual assault in the second degree was contrary to the law and evidence. Specifically, Brown maintains, as he did at trial, that B.R.’s parents instructed her to say that Brown had touched her in order to extort money from him. According to Brown, B.R.’s parents were in difficult financial circumstances and fabricated the abuse allegations to recover a civil judgment from him. The State answers that sufficient evidence supports the verdict. We affirm.
The standard of review for a sufficiency-of-the-evidence challenge is well established; this court views the evidence in the light most favorable to the State and considers only evidence that supports the verdict. See, e.g., Carter v. State,
[Brown was charged with and found guilty of second-degree sexual assault, pursuant to Arkansas Code Annotated section 5-14-125:
(a) A person commits sexual assault in the second degree if the person:
(3)Being eighteen (18) years of age or older, engages in sexual conduct with another person who is:
(A) Less than fourteen (14) years of age; and
(B) Not the person’s spouse.
Ark.Code Ann. § 5-14-125(a)(3) (Repl. 2006).
The State’s first witness was the victim, B.R. The prosecuting attorney asked her if she knew the difference between right and wrong, and B.R. answered affirmatively. She then testified that it was wrong to lie and that there were consequences for doing so. B.R. |(¡identified the parts of a male and female body, specifically referring to a vagina as a “pee pee” and breasts as “boobs.”
B.R. testified that she knew Brown because he had been her neighbor. She said that she saw him often and that she would go to his yard and help him garden. B.R. told the jury that she felt Brown was trustful and she did not feel unsafe around him but that changed when “he touched [her] in the wrong place.” It was B.R.’s testimony that Brown touched her on her boobs and her pee pee more than one time. She said that she would sometimes go into Brown’s house, and the touching occurred in the laundry room. According to B.R., Brown would touch her under her clothes and would say, “I love my [B.],” and “does that feel good?” B.R. also testified that once, in Brown’s den, he lifted up her shirt and his shirt, and “his stomach touched [hers].”
B.R. also said that Brown “sat down on top of [her] and humped [her] moving back, moving forwards and backwards.” It was her testimony that his penis touched her through his clothes and that “he breathed really hard.” Next, B.R. told the jury that, on one occasion, she went to Brown’s house to show his wife, Cathy, her “fluffy purple dress.” She said that 17when she got there, Brown said that Cathy was in the bathroom, and then he touched her pee pee with his hand. B.R. also testified that Brown had “kissed [her] pee pee.”
The prosecutor then asked B.R. why she did not tell anyone after the first time Brown touched her. She responded as follows: “I didn’t understand what, I didn’t know that could even happen to a little girl. And I didn’t know what it meant. I didn’t know it was bad. I didn’t know.” B.R. testified that later she “just got a feeling” and that she told her mother after she “realized it was bad, just that feeling that makes you kind of aware.”
The State next called B.R.’s father, Andy. He testified that he had a good “neighborly relationship” with Brown until his wife told him what B.R. said happened at his house. He said that his wife told him of the abuse sometime in early September, close to Labor Day weekend. It was his testimony that neither he nor his wife immediately informed the police after B.R. reported the abuse and that the day after he found out about it, he confronted Brown in his driveway. According to Andy, he said “[B] told me that you had been touching her.” Andy testified that Brown “immediately dropped his head and looked to the ground. And he said, ‘Andy, I’m so sorry.’ ” According to Andy, Brown also told him that he had been taking medication “that’s got me acting crazy.” Brown also allegedly said to Andy: “I’m 60 years old, Andy. I’m too old to go to jail.” Andy told the jury that he and his wife considered what to do and, the next week, they reported the abuse to the police. Andy then told the jury that he filed a civil lawsuit against Brown “months later.”
B.R.’s mother, Shannon, testified next for the State. She told the jury that B.R. was “crying and she was very embarrassed” when she told her what had happened with Brown. |sShe said that B.R. “was crying and begging me not to tell anybody” and that she and her husband “just weren’t real sure what to do.” She testified that she and her husband talked to her sister and brother-in-law and then decided they had to report the incident to the police. Shannon also testified that B.R. did not return to Brown’s house after she told her about the abuse.
Finally, Detective Eric Haworth of the Benton Police Department testified for the prosecution. He said that he interviewed B.R. when she was brought to the police station to report the abuse. Haworth testified that he had been trained in techniques to interview child victims. He told the jury that he took B.R.’s statement and that it was just he and B.R. when the statement was taken. Haworth also testified that he spoke to B.R.’s mother and father and that after the interview was concluded, he went with another officer to Brown’s house. According to Haworth, Brown answered the door, and he said he had been expecting the police. Haworth also said that he entered Brown’s house, and the layout was just as B.R. had described it in her statement.
Brown was permitted to cross-examine each witness. During the cross-examinations, he elicited testimony from Andy that he had met with an attorney about filing for bankruptcy two weeks before the abuse was reported to the police. Brown was also permitted to question the witnesses as to inconsistencies in their testimony about the timing of events and, specifically, the delay in reporting the abuse to the police. Brown’s attorney also asked Andy whether he had asked Brown for money in exchange for not filing charges. Andy answered that he had not.
bAfter Brown moved for directed verdict, which was denied, he called Detective Haworth back to the stand. Brown briefly questioned him about his discussion with Andy on the day B.R. was brought to the police station. Next, Brown called Rene Thornhill, his daughter, to the -witness stand'. She testified that she and her husband had visited her mother and father during Labor Day weekend 2007. She testified that she remembered her father talking to Andy in the driveway on the Friday evening of that weekend. She also testified that B.R. had come over to play with her son on Thursday when they arrived. According to Ms. Thornhill, on Saturday evening, B.R. again asked if her son could play, but they were preparing to leave, and B.R. went back home.
Scott Thornhill, Ms. Thornhill’s husband and Brown’s son-in-law, testified next for the defense. He too recounted that he, his wife, and his son had visited Brown during Labor Day 2007. He said that he ran an errand with Brown late Friday afternoon, and when they returned, Andy met them in the driveway and asked to speak to Brown. According to Mr. Thornhill, he did not hear any of the conversation. On cross-examination, Mr. Thornhill testified that Brown did not say anything to him about his conversation with Andy.
Finally, Brown called Angie Tennant to the stand. She testified that she lived near B.R. and her family and that she knew the child. She told the jury that she did not notice any difference in B.R. after the abuse allegations were revealed.
After Ms. Tennant’s testimony, the defense rested and renewed its motion for directed verdict, which was again denied. Following sentencing, Brown moved for posttrial relief, in | Tnpart on grounds that the guilty verdict was contrary to the law and evidence. On appeal, Brown concedes that the victim testified about the abuse. However, he argues that “the reasons to doubt her testimony stem directly from the influence the parents had over their young child.” He maintains, as he did at trial, that B.R.’s parents were “attempting to extort money from [Brown] given the substantial and unreasonable delay in reporting the incident to the authorities.”
B.R. testified in detail about various instances in which Brown touched her inappropriately. Her parents and Detective Haworth also told the jury that B.R. had recounted the same information to them. Brown was permitted throughout the trial to cross-examine the State’s witnesses and to argue that B.R.’s parents fabricated the abuse story in order to extort money from Brown. It is well settled that a victim’s testimony alone provides sufficient evidence to support a sexual assault charge and that her testimony does not need to be corroborated. See, e.g., Bryant v. State,
II. Turn’s Testimony
For his next point on appeal, Brown argues that it was error to permit Lou Ann Turri to testify at sentencing about an alleged sexual assault that occurred thirty-four years prior to lnthe instant trial for which Brown was never charged or convicted. According to Brown, whatever probative value the evidence may have had was substantially outweighed by the danger of unfair prejudice, in light of the fact that Turri testified to events that were very remote in time and dissimilar to the alleged conduct against B.R. Brown also argues that the circuit court should have suppressed Turn’s testimony at sentencing under this court’s holding in Rush v. State,
According to section 16-97-103:
Evidence relevant to sentencing by either the court or a jury may include, but is not limited to, the following, provided no evidence shall be construed under this section as overriding the rape shield statute, § 16-42-101:
(1) The law applicable to parole, meritorious good time, or transfer;
(2) Prior convictions of the defendant, both felony and misdemeanor. The jury may be advised as to the nature of the previous convictions, the date and place thereof, the sentence received, and the date of release from confinement or supervision from all prior offenses;
(B) Prior judicial determinations of delinquency in juvenile court, subject to the following limitations:
(i) That prior delinquency adjudications be subject to a judicial determination that the relevant value of the prior juvenile adjudication outweigh its prejudicial value;
(ii) That consideration only be given to juvenile delinquency adjudications for crimes for which the juvenile could have been tried as an adult; and
(iii) That in no event shall delinquency adjudications for acts occurring more than ten (10) years prior to the commission of the offense charged be considered;
(4) Victim impact evidence or statements;
(5) Relevant character evidence;
||⅞(6) Evidence of aggravating and mitigating circumstances. The criteria for departure from the sentencing standards may serve as examples of this type of evidence;
(7) Evidence relevant to guilt presented in the first stage;
(8) Evidence held inadmissible in the first stage may be resubmitted for consideration in the second stage if the basis for exclusion did not apply to sentencing; and
(9)Rebuttal evidence.
Ark.Code Ann. § 16-97-103 (Repl.2006). This court has made clear that the rules of evidence apply to evidence introduced at the sentencing phase; however, pursuant to section 16-97-103, certain evidence is admissible at sentencing that would not have been admissible at the guilt phase of the trial. See, e.g., Crawford v. State,
First, Brown’s reliance on Rush v. State,
yflush does not apply to the instant case because the circuit court did not admit Turn’s evidence under section 16-97-103(2). In fact, it was not admissible under that subsection because Brown was not charged with a crime nor was he convicted. In Rush, the court expressly noted that proof of aggravating circumstances was not at issue, but, instead the question was “how to appropriately advise the jury of the nature of a previous conviction.” Id. In this case, the trial court held that Turn’s testimony was relevant as evidence of Brown’s character and as evidence of an aggravating circumstance. Therefore, subsections 16-97-108(5) and (6) apply.
In Crawford v. State,
The year after Crawford was decided, this court held that it was not an abuse of discretion at the penalty phase of a first-degree murder trial to admit evidence of a thirty-two-year-old homicide investigation implicating the defendant. MacKool v. State,
Thus, our holdings in Crawford and MacKool govern this case, and evidence of prior or subsequent uncharged criminal conduct can be admissible at the penalty phase of a trial if it is relevant evidence of the defendant’s character or as evidence of an aggravating circumstance. In this case, the circuit court ruled that Turn’s testimony was relevant for both reasons. Despite the large amount of time between the events giving rise to Turri’s testimony and the instant trial, we hold that it was not an abuse of discretion for the judge to allow her to testify at sentencing.
As a final note, Brown argues that for evidence to be admissible, it must not be too separated in time, making the evidence unduly remote. He relies on Arkansas Rule of Evidence 404(b). See also Lamb v. State,
III. Reduction of Brown’s Sentence
As a final point on appeal, Brown urges that the circuit court erred in failing to reduce his sentence because the jury’s recommendation of the maximum sentence was the result of passion or prejudice. The State contends that Brown cannot appeal his sentence where it falls within the statutory range prescribed by statute.
Brown relies on Arkansas Code Annotated section 16-90-107(e), which provides as follows:
The court shall have power in all cases of conviction to reduce the extent or duration of the punishment assessed by a jury so that the punishment is not in any case reduced below the limit prescribed by law in such cases if the conviction is proper and the punishment assessed is greater than ought to be inflicted under the circumstances of the case.
Ark.Code Ann. § 16-90-107(e) (Repl.2006). The statute plainly gives the trial court the authority to reduce the recommendation of the jury, but it does not require it to do so. Since 15 hfithe court did not abuse its discretion, we affirm.
First, Brown’s argument on this point stems in large part from his contention that Turri should not have been permitted to testify during the sentencing phase of the trial. We have held that the circuit court did not abuse its discretion in allowing Turri to testify. Therefore, it was not error to deny Brown’s request for a sentence reduction on grounds that her testimony should not have been admitted.
Brown also urges that “there was no evidence of penetration of the victim” and, citing the sentencing testimony of his son, contends that he “had an exemplary record.” He thus contends that the maximum term of imprisonment was unduly harsh. We hold that it was for the jury to hear the penalty-phase testimony and to recommend a sentence. The judge then exercised his discretion in adopting the jury’s sentence recommendation.
This court has held that it will not reduce a sentence, even where it considers it unduly harsh, if it falls within the legislative limits fixed by the General Assembly. See Henderson v. State,
IV. Conclusion
We hold that there was sufficient evidence to support Brown’s conviction. We also |17hold that the circuit court did not abuse its discretion in permitting Lou Ann Turri to testify during the penalty phase of the trial. Finally, the circuit court did not abuse its discretion in imposing a sentence that falls within the statutory range for second-degree sexual assault.
Circuit court affirmed. Opinion of the court of appeals vacated.
Notes
. The judgment and commitment order indicates that a sentence was imposed for one count of sexual assault in the second degree and that the other four counts originally charged were nolle pressed.
. Judge Karen Baker concurred without written opinion.
. According to the criminal information, Brown was originally charged under section 5 — 14—125(a)(3) and (4), which provides that he engaged in sexual conduct with another person who was less than eighteen (18) years of age, and he was a person in a position of trust or authority over the minor. The jury was only instructed as to the charge under section 5 — 14—125(a)(3).
. B.R. otherwise used anatomically correct words for the rest of the body parts.
Concurrence Opinion
concurring.
I concur in the decision reached by the majority. It is correct based on existing precedent. However, the current precedent on Arkansas Code Annotated section 16-97-103 (Repl.2006) is in error. This court’s statement in Crawford v. State,
In Hill v. State,
The analysis in Hill clearly precludes the statement in Crawford. Admissibility of evidence in sentencing is governed by our rules of evidence. Hill,
As the circuit court initially determined in the present case, the thirty-four-year-old uncharged misconduct was not sufficiently close in time or nature to be admissible under Rule 404(b). It is patently nonsensical to conclude that character evidence excluded under Rule 404(b), a rule of this court determining relevance, is admissible under a statute. This court’s holding in Hill that our rules govern the sentencing phase as well as the guilt phase of trial precludes the assertion that a distinction on relevance is to be made based on section 16-97-103. The evidence is either relevant and admissible under this court’s rules of evidence or it is not. If evidence is irrelevant under our rules of evidence, but admitted under a grant of statutory authority, there is a due-process problem. If there is an issue of whether character |1flevidence is inadmissible for purposes of proving guilt but admissible for purposes of sentencing, it is a question of relevance decided by application of Rule 404(b).
Rules, and in this case a statute such as section 16-97-103, contain shorthand descriptions of the legal principles they are intended to reference. The holdings of this court control and define what the rules provide, not vice versa. Section 16-97-103 does not control relevance. Relevance is an issue for this court to decide, and our decisions in that regard necessarily control the meaning of the rules, or in this case a statute. If we permit a rule to define what the holding must be, we have put the cart before the horse and abdicated our duty. The error in the interpretation of section 16-97-103 should be addressed by this court at the first opportunity.
DANIELSON, J., joins.
. The General Assembly recognizes that it may not establish rules of practice or procedure. Arkansas Code Annotated section 16-11-301 (Repl.2010) states that “[a]ll statutes concerning pleading, practice, and procedure in all courts shall be deemed superseded by rules adopted by the Supreme Court pursuant to Arkansas Constitution, amendment 80, § 3, or pursuant to the Supreme Court's constitutional, inherent, or statutory authority prior to the effective date of Arkansas Constitution, amendment 80.”
. See Acts of Mar. 16, 1993, Nos. 535, 551, 1993 Ark. Acts 1505, 1624.