Eriс Wayne KELLEY, Appellant, v. STATE of Arkansas, Appellee.
No. CR 08-1502.
Supreme Court of Arkansas.
June 25, 2009.
2009 Ark. 389 | 318 S.W.3d 568
Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
ANNABELLE CLINTON IMBER, Justice.
Appellant Eric Wayne Kelley was convicted by a Pulaski County jury of one count of rape of a child less than fourteen years of age and was sentenced to a term of forty-seven years’ imprisonment. He now appeals, arguing that the circuit court abused its discretion in admitting certain evidence over his objections in accordance with
A recitation of the facts of this case is set forth in Kelley v. State, 371 Ark. 599, 269 S.W.3d 326 (2007) (“Kelley I”). As indicated therein, the Warrants Division of the Sherwood Police Department received information regarding Kelley from the United States Marshals Service on November 7, 2005. Specifically, the Department learned that Kelley was wanted in Dallas County, Texas, on warrants involving sexual offenses committed against children. Kelley was believed to be living in Sherwood and having sexual relations with
On November 10, 2005, Officer Kevin Webb of the Sherwood Police Department was patrolling in the area of Kelley’s residence and observed a black Nissan Maxima, registered to Melvin Eugene Kelley, leaving the residence. Webb conducted a traffic stop. When Kelley, the driver, could not produce a driver’s license, Webb asked for his name and date of birth. Kelley responded that his name was Melvin Kelley and provided a false date of birth. When Webb inquired about the juvenile in the front passenger seat, who matched the descriptiоn of the boy with whom Kelley was suspected of having sexual relations, Kelley stated that it was his twelve-year-old nephew. After the arrival of other officers on the scene, Kelley was shown the photograph from the Marshals Service and nodded to indicate that it was him. The passenger, twelve-year-old M.M., told Officer William Michaels of the Sherwood Police Department that Kelley was his “friend.” Kelley was then arrested.
M.M. was taken to the Sherwood Police Department, where his mother was to pick him up. With his mother’s permission, he was interviewed by Sergeant Jeff Hagar. M.M. initially denied that Kelley had ever hurt him but eventually disclosed that Kelley had performed oral sex on him approximately ten to twenty times over the course of the last year. M.M. further stated that Kelley had taken nude photographs of him, which he had seen on Kelley’s digital camera and which he believed to have been downloaded onto Kelley’s computer. M.M. also disclosed that Kelley had shown him pornographic videos. Based on the information provided by M.M., the officers obtained a nighttime search warrant for Kelley’s apartment and executed it at approximately 12:52 a.m. on November 11, 2005. Several pieces of electronic equipment were seized, including various compact discs and digital video discs.
The State filed a felony information charging Kelley with the rape of M.M. and later amended the information to include the charge of engaging children in sexually explicit conduct for use in visual or print medium. Kelley I, 371 Ark. at 602, 269 S.W.3d at 328. The Statе nolle prossed the latter charge prior to trial, and Kelley was convicted on the rape charge. Id. This court, however, reversed his conviction and remanded for a new trial, holding that the circuit court erred in denying Kelley’s motion to suppress the evidence seized from his home during the execution of the nighttime search warrant. Id. at 601, 269 S.W.3d at 327. More specifically, we held that the affidavit and warrant lacked any factual basis to support a nighttime search, as they contained only the conclusory statement that the objects to be seized were in danger of imminent removal, without providing any facts or explanation in support of that statement. Id. at 608, 269 S.W.3d at 333. Moreover, the good-faith exception articulated in United States v. Leon, 468 U.S. 897 (1984), did not apply to save the warrant, because the affidavit lacked all indicia of reasonable cause to justify a nighttime search, and the officers therefore should have known that the affidavit was in violation of our rules. Kelley I, 371 Ark. at 608, 269 S.W.3d at 333. We further held that, in view of the imposition of a life sentence, the error
On retrial, Kelley was again convicted of rape and was sentenced, as a habitual offender with two prior felony convictions, to forty-seven years’ imprisonment. M.M. testified at trial that he met Kelley, whom he knew as “Gene,” in August 2004 at an Office Depot store, where Kelley sold a printer to M.M. and his mother. Kelley provided his telephone number and told M.M. and his mother to call if they encountered any problems with the printer. When M.M. and his mother had trouble installing the printer, Kelley came to the business owned by M.M.’s parents and helped to set it up. M.M. then saw Kelley again “еvery once in a while” when he went into Office Depot. He later needed a Sherwood address in order to attend school in a particular district and obtained Kelley’s permission to use his address. M.M. was picked up and dropped off by the school bus at Kelley’s apartment, where he was allowed to wait inside. Kelley and M.M. became friends and would often go out together to watch movies or go bowling. Kelley also bought gifts for M.M., including a cellular telephone and a video-game system. M.M. testified that at some point Kelley began engaging in behavior that made M.M. uncomfortable, which started with Kelley rubbing his thighs. The behavior progressed to Kelley masturbating M.M. and performing oral sex on him. M.M. testified that this happened ten to fifteen times. He further testified that Kelley showed him pornographic videos.
M.M. testified that, following Kelley’s arrest, Kelley placed several calls to him on the cellular telephone that Kelley had given him. These calls were made while Kelley was being detained in the Sherwood jail and were recorded. The recordings were admitted into evidence during the State’s case-in-chief and were played for the jury. On the recordings, Kelley is heard asking M.M. to bring him a “statement” that he had previously instructed M.M. to write, stating that Kelley had not hurt him. The jury also heard recordings of Kelley’s phone calls to his own parents, on which Kelley is heard asking his parents to convince M.M.’s parents to take M.M. out of town on the date of trial so that he would be unavailable to testify.
At trial, the State also introduced the testimоny of S.J., a twenty-three-year-old resident of Dallas, Texas, whom Kelley had allegedly raped when S.J. was twelve to fourteen years old. S.J. testified that Kelley was a friend of his family and often took him on outings, including to dinner and the movies. Kelley also bought gifts for S.J., including a cellular telephone. S.J. stated that Kelley would at times take him back to Kelley’s house and invite S.J. to masturbate with him, which later progressed to Kelley forcibly masturbating and performing oral sex on S.J. S.J. indicated that this happened “well over fifteen” times. S.J. further testified that Kelley showed pornographic videos to him. S.J. stated that after he ended his contact with Kelley, Kelley “stalked” him and called him over fifty times. Kelley filed a pretrial motion in limine, seeking to exclude S.J.’s testimony pursuant to
In addition to S.J.’s testimony, the State also introduced certified documents showing Kelley’s two prior convictions for third-degree indecency with a child younger than seventeen years. Specifically, the circuit court admitted copies of the two judgments, both of which were entered on September 29, 1994, in Dallas County,
From his conviction and sentence, Kelley filed a timely notice of appeal. For his only point of error, he contends that the circuit court abused its discretion in admitting both S.J.’s testimony and the certified documentary proof of his two prior convictions. He maintains that both pieces of evidence were offered by the State only to show his propensity to engage in deviate sexual activity with children. According to Kelley, the State’s purpose for introducing the evidence was demonstrated by remarks made during the State’s closing argument, particularly, “Eric Kelley is a man that commits sex acts with children. That’s who he is. We know that because he has a pattern of doing that. He has two prior convictions of sexual indecency with someone under seventeen. We know that he touched the penis of thirteen year old [S.J.], and that he put his mouth on his penis.”
The admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit cоurt, which this court will not disturb on appeal absent a showing of manifest abuse. Eubanks v. State, 2009 Ark. 170, at 3, 303 S.W.3d 450.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
This court has long recognized a “pedophile exception” to
S.J.’s Testimony
On appeal, Kelley argues that the circuit court abused its discretion in admitting S.J.’s testimony because it was offered by the State solely to prove Kelley’s propensity to engage in deviate sexual activity with children. However, in his reply brief, Kelley concedes that S.J.’s testimony was properly admitted pursuant to the pedophile exception to
S.J.’s testimony at trial established a sufficient degree of similarity between the acts he alleged and the conduct with which Kelley was charged in the present case. First, both S.J. and M.M. testified to forced masturbation and oral sex. Moreover, both testified that Kelley showed them pornographic videos. This court has suggested that when the sexual acts alleged are identical, there is at least some evidence of a connection between the two allegations demonstrаting a depraved sexual instinct. See, e.g., Lamb v. State, 372 Ark. 277, 284, 275 S.W.3d 144, 150 (2008). In addition, both S.J. and M.M. were twelve-to fourteen-year-old males at the time of the alleged abuse. This court has consistently considered similarities in age and gender of victims to be demonstrative of a depraved sexual instinct, such that the pedophile exception is applicable. See e.g., Hamm v. State, 365 Ark. 647, 653, 232 S.W.3d 463, 469 (2006); Flanery v. State, 362 Ark. 311, 315, 208 S.W.3d 187, 190 (2005); Hernandez v. State, 331 Ark. 301, 308, 962 S.W.2d 756, 760 (1998).
The trial testimony of S.J. and M.M. also revealed several similarities in Kelley’s pattern of alleged abuse. Specifically, both boys testified that Kelley entered their lives as a “friend of the family,” eventually becoming close to them individually. He took both boys on outings, such as to eat dinner, see movies, or go bowling, and purchased various gifts for both boys, including cellular telephones. Finally, both S.J. and M.M. testified that, after the termination of their contact with Kelley, he called them numerous times. Such patterns of behavior are probative on the issue of an accused’s deviate sexual instincts.
In Hamm v. State, for example, the similarities between the two victims’ allegations included the following: both children were female, both were nine years old when the abuse began, both met the appellant at church, both were under his supervision at church, both were frequently invited to his home, both were at times sitting on him when the abuse occurred, both reported abuse while home alone with him, and the appellant was not related to either of them. 365 Ark. at 653, 232 S.W.3d at 469. This court held that, in view of these numerous similarities, the circuit court had not abused its discretion in admitting the witness’s testimony. Id. Similarly, in Flanery v. State, we noted that the specific sexual аcts complained of were not identical; however, the victim and the witness were similar in age when the abuse happened, both were living in the appellant’s home and looked on him as a father figure, and, in both situations, the appellant tried to rationalize his behavior. 362 Ark. at 315, 208 S.W.3d at 190. These similarities were deemed sufficient for the application of the pedophile exception. Id. In the instant case, the similarities in Kelley’s conduct toward S.J. and M.M., both before and after the abuse, demonstrate his depraved sexual instincts and his proclivity for deviate sexual activity with pubescent boys whom he has befriended.
In addition to establishing a sufficient degree of similarity with M.M.’s allegations, S.J.’s testimony also demonstrated
We have noted that the misnomer, “intimate relationship,” does not necessarily require that the child live in the home of the accused. We have defined an “intimate relationship,” for lack of a better phrase, as close in friendship or acquaintance, familiar, near, or confidential. We have admitted the testimony of a child living in the same household or staying as an overnight guest in the perpetrator’s home. We further have admitted evidence against a perpetrator who babysat a child, or who gained access to the child.
Parish v. State, 357 Ark. 260, 270, 163 S.W.3d 843, 849 (2004) (internal citations omitted). This court has furthermore adopted the position that a relationship is sufficient to trigger the pedophile exception if the sexual abuse occurs when the victim is in the perpetrator’s care or under his authority. Berger v. State, 343 Ark. 413, 420, 36 S.W.3d 286, 290 (2001). Here, S.J., like M.M., was in Kelley’s care at the time of the alleged abuse. S.J. testified that the abuse occurred in Kelley’s home after Kelley had taken him on outings. He further stated that Kelley’s role in his life was that of a “stepfather figure” in the beginning and that he had lived with Kelley at various times. His testimony clearly established that his relationship with Kelley was “close in friendship or acquaintance, familiar, near, or confidential.” Parish v. State, 357 Ark. at 270, 163 S.W.3d at 849.
For these reasons, we conclude that S.J.’s testimony was properly admitted in accordance with the pedophile exception. In addition, we have noted that if evidence of past behavior is not admissible under the pedophile exception, it is still admissible if it is independently relevant to prove motive, intent, preparation, or plan. Hamm v. State, 365 Ark. at 658, 232 S.W.3d at 472. We stated in Hamm that testimony about the appellant’s prior bad act was “relevant to show the appellant’s plan to meet children at church, to invite them back to his home, to keep them returning by offering them treats and entertainment, then to proceed to molest them.” Id. Likewise, S.J.’s testimony was relevant to show Kelley’s plan to meet young boys by befriending their families, to gain the boys’ trust and keep them close by taking them on outings and buying them gifts, to show them pornographic videos, and then to force them to engage in masturbation and oral sex. Because S.J.’s testimony was admissible under both the pedophile exception and the rule-based exceptions to
Documents Showing Two Prior Convictions for Indecency With Child Younger Than Seventeen
Kelley also contends that the circuit court abused its discretion in admitting the certified documentary proof of his two prior convictions for indecency with a
As stated above, this court has consistently hеld that two requirements must be met for the pedophile exception to apply: there must be a sufficient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant, and there must be an “intimate relationship” between the defendant and the victim of the prior act. Eubanks, supra, at 4. The evidence admitted herein simply fails to satisfy these two basic requirements. The copies of the Texas judgments entered during the State’s case-in-chief do not identify the victims, nor do they provide their ages and genders (other than the fact that they were under the age of seventeen). In fact, it is not clear from the judgments whether the two separate convictions involved the same or different victims. The judgments do not indicate whether Kellеy was related to the victims or whether they lived in his household. Moreover, they provide no insight into the circumstances of the alleged “indecency.” The specific type of abuse alleged is unknown, and there is no comment on Kelley’s conduct before or after the alleged abuse. In short, the circuit court could not have evaluated the circumstances and determined whether the two requirements were met by looking at the judgments. The documents admitted during the sentencing phase provided no further aid.
Some insight into the two prior convictions may be gained by reviewing the Texas statute under which Kelley was convicted. While the documents do not state the applicable statutory section, Kelley appears to have been convictеd in both cases of indecency with a child in accordance with Section 21.11 of the Texas Penal Code. See
Even in light of this statute, it was impossible for the circuit court to determine whether the pedophile exception was applicable in this case. The statute reveals only that Kelley’s prior victims were younger than seventeen years and not his spouse, and that he exposed his anus or any part of his genitals, knowing they were present, with the intent to arouse or gratify the sexual desire of any person. Thus, it is possible that one or both victims were
A review of our prior cases interpreting and applying the pedophile exception reveals that we have never allowed evidence similar to what was presented here. In 1994, this court upheld a circuit court’s ruling allowing the State to introduce, in its case-in-chief on a charge of rape, four prior convictions for sexual offenses. Greenlee v. State, 318 Ark. 191, 197, 884 S.W.2d 947, 950 (1994). Two of the convictions were for indecent exposure, while the other two were for lewd molestation. Id. However, it was clear that all four of the prior offenses were committed against five-year-old boys who were entrusted to the appellant for babysitting care, as was the victim of the charged rape. Id. We allowed the evidence pursuant to the pedophile exception, noting as follows: “Appellant committed the prior offenses against young children, just as he was accused of doing in this case, and in committing the prior offenses, he was successful in luring the children into his lair by baby-sitting, just as he was accused of doing in this case.” Id. The circuit court in Greenlee obviously had access to details about the prior offenses and victims that were evaluated in determining the admissibility of the evidence. Therefore, the facts are distinguishable from those at issue here.
In a similar case, this court affirmed a circuit court’s ruling allowing the State to admit proof that the appellant had pleaded guilty to the crime of carnal abuse of his six-year-old stepdaughter eleven years prior to his trial for the rape of his daughter. Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996). While it appears from the opinion that the prior victim did not testify at the appellant’s trial, the circuit court was nonetheless able to conduct a pedophile-exception analysis. We held that “[t]he trial court considered both the similarity of the prior conviction to the current charges of rape and incest and the parental relationship of Mosley with both of the victims and correctly applied Rule 404(b).” Id. at 473, 929 S.W.2d at 695. In other words, because the identity of the prior victim was known, the circuit court was able to determine whether the required intimate relationship was present. Conversely, the circuit court in the instant case was not privy to such information.
In 2004, this court reversed a rape conviction on the basis that the circuit court had abused its discretion in allowing the State to introduce hearsay evidence that the appellant had raped another child. Hanlin v. State, 356 Ark. 516, 157 S.W.3d 181 (2004). The evidence consisted of an unsworn written statement made by the child to Alabama authorities, in which she disclosed that the appellant had informed her that he had engaged in sexual intercourse with the victim. Id. at 521-23, 157 S.W.3d at 184-86. The child’s statement included an allegation that the appellant had raped her as well. Id. at 524, 157 S.W.3d at 186. On appeal, the appellant argued that the statement was highly prejudicial, considering the fact that the child was not present in the courtroom and subject to cross-examination and that he wаs never charged with her rape. Id. at 526, 157 S.W.3d at 187. He also maintained that the statement was admitted merely to prove bad character and to bolster the State’s case against him. Id. He objected in accordance with
This court held that the circuit court had abused its discretion, noting that the statement was double or even triple hearsay and that “the effect of it was to label Hanlin as a person of bad character who had engaged in similar activity previously,” such that it was inadmissible under
Our decision not to raise the pedophile exception, sua sponte, is bolstered by the fact that we have before us no direct proof establishing that the rape of S.M. occurred in Alabama. In cases where this court has applied the pedophile exception, the other victims typically testified at trial about the defendant’s actions, or there was other direct proof of those offenses. But here, all that was presented at trial was the unsworn statement of S.M. taken by Alabama authorities and relayed to Detective Harper, which is triple hearsay. The Alabama statement is not even part of the record in this case but was simply conveyed to the jury through the testimony of Detective Harper. Sufficient proof of the rape of S.M. was, therefore, lacking.
Id. at 529-30, 157 S.W.3d at 189-90 (internal citations omitted).
As we indicated in Hanlin, witness testimony is usually required. This court has permitted evidence under the pedophile exception without witness testimony when the appellant admits to a prior bad act in a custodial statement. For example, in McDuffy v. State, 359 Ark. 180, 196 S.W.3d 12 (2004), the appellant was charged with the rape of a thirteen-year-old boy, in the form of both oral and anal sex. During an interview with law enforcement after a waiver of his Miranda rights, the appellant confessed to engaging in oral and anal sex with another thirteen-year-old boy. Id. at 184, 196 S.W.3d at 14. In its review of potentially prejudicial rulings pursuant to
Similarly, in Swift v. State, 363 Ark. 496, 215 S.W.3d 619 (2005), the appellant was charged with the rape of his minor son and challenged the admission of an audiotape of his custodial statement in which he admitted touching the vagina of his niece on three occasions. As in McDuffy, however, there was evidence about the prior bad act available to the circuit court:
She was seven or eight years old at the time of the abuse. On the tape, the appellant stated that he touched K.N.’s vagina with his hand and that K.N. touched his penis and masturbated him to ejaculation. After the third incident, the appellant told K.N. not to tell anyone about the events.
Id. at 499, 215 S.W.3d at 621. This court affirmed the circuit court’s ruling, noting various similarities between the charged conduct and the admission regarding the niece: both victims shared clоse familial relationships with the appellant, they were similar in age at the time of the abuse, and, in each instance, the appellant instructed the child not to tell anyone about the abuse. Id. at 499-500, 215 S.W.3d at 622. In both McDuffy and Swift, an analysis of the pedophile-exception requirements was possible, despite the fact that
The State nonetheless maintains that the documentary evidence of Kelley’s two prior convictions was admissible under the pedophile exception, citing to this court’s opinion in Flanery v. State, supra. In Flanery, this court affirmed a circuit court’s ruling allowing Rule 404(b) evidence pursuant to the pedophile exсeption despite the fact that the allegations of the victim of the charged rape included oral sex and sexual intercourse, while the Rule 404(b) witness alleged only inappropriate touching. 362 Ark. at 313, 208 S.W.3d at 189. The State contends that this case stands for the proposition that the similarity of the two acts is not controlling and that the relevant inquiry is whether the evidence shows a proclivity for inappropriate conduct with victims sharing a common trait. However, this court’s opinion in Flanery clearly reiterated the frequently stated rule that, for the pedophile exception to apply, the acts must be sufficiently similar. Id. at 314-15, 208 S.W.3d at 189-90. We also set forth a list of the similarities between the charged conduct and the witness’s testimony, holding that the admission of the testimony was not an abuse of discretion “[i]n light of the similarities in age and presence of the victims in the same household[.]” Id. at 315, 208 S.W.3d at 190.
The State also cites to Hernandez v. State, supra, in which, as in Flanery, the victim’s and witness’s allegations differed with respect to the type of abuse. We held that, despite this difference, “the pedophile exception seems especially applicable in view of the evidence that Mr. Hernandez was attracted to the physical characteristics of young girls and the evidence that Mr. Hernandez attempted to offer both the victim and the witness gifts in exchange for sexual favors.” 331 Ark. at 308, 962 S.W.2d at 760. Other similarities were present as well. Id. The State seems to suggest that the evidence at issue here was admissible because it was helpful in showing that Kelley was attracted to the physical characteristics of young boys; however, the fact remains that the age and gender of Kelley’s prior victims are unknown. Therefore, the Hernandez decision provides no support for the State’s position.
Because the documentary evidence showing Kelley’s two prior convictions provides no information that would have allowed the circuit court to conduct a pedophile-exception analysis, we hold that the admission of this evidence was an abuse of discretion. However, we affirm Kelley’s conviction and sentence because the error was harmless. We have held that, even when a circuit court errs in admitting evidence, we may declare the error harmless and affirm when the evidence of guilt is overwhelming and the error is slight. Buford v. State, 368 Ark. 87, 91, 243 S.W.3d 300, 303 (2006). To determine if the error is slight, we can look to see if the defendant was prejudiced. Id. This court has consistently held that the uncorroborated testimony of а child-rape victim is sufficient evidence to sustain a conviction. White v. State, 367 Ark. 595, 600, 242 S.W.3d 240, 245 (2006). Here, M.M. testified to the rapes. In addition to that evidence, S.J. testified to remarkably similar conduct on the part of Kelley. Moreover, the jury heard recordings of Kelley’s telephone calls made from the jail, in which he is heard attempting to secure M.M.’s unavailability on the date of trial. Kelley’s statements during those calls clearly demonstrate his consciousness of guilt. Thus, the evidence of his guilt
Affirmed.
HANNAH, C.J., dissents.
JIM HANNAH, Chief Justice, dissenting.
Based on the principle of stare decisis, I concur in the decision that S.J.’s testimony was admissible. I also concur with the majority that the circuit court abused its discretion in admitting into evidence two Texas judgments convicting Kelley of “indecency with a child younger than seventeen years of age.” However, I respectfully dissent to the majority’s conclusion that admission of the two Texas judgments was harmless error.
The majority concludes that Kelley’s conviction in the present case may be affirmed because admission of the Texas judgments constituted harmless error, given that the evidence of guilt is overwhelming and the error in admitting the Texas judgments is slight. Thе majority states that, “[t]o determine if the error is slight, we can look to see if the defendant is prejudiced.” This court has consistently held that the uncorroborated testimony of a child-rape victim is sufficient evidence to sustain a conviction.” (Citations omitted.) This analysis, which has been followed by this court in a number of opinions in recent years, is in error.
The majority asserts that because Kelley did not object to admission of the Texas convictions on constitutional grounds, the constitutional standard is inapplicable. The majority cites to Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996), and Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995), for this proposition. Both cases hold that where a defendant fails to make a constitutional objection or constitutional argument on appeal, this court need not evaluate the admission of this evidencе under the constitutional standard of harmless error beyond a reasonable doubt. Abernathy, 325 Ark. at 66, 925 S.W.2d at 382; Griffin, 322 Ark. at 221, 909 S.W.2d at 633. Both cases were incorrectly decided.
The Fifth and Sixth Amendments provide the right to a jury trial and verdict based on proof beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 278 (1993). Where error is found, harmless-error analysis may be applied by a reviewing court to affirm a criminal case if the sanctity of the jury verdict is preserved by determining beyond a reasonable doubt that the jury verdict was unaffected by the error. Id. at 279. If the reviewing court uses any lesser standard, as is
In the present сase, the court affirms the decision because, despite the error, there was still substantial evidence to support the jury verdict. However, this fails to show that the jury was unaffected by the error. The court thus makes the factual decision of guilt. For a reviewing court “to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee.” Sullivan, 508 U.S. at 279.
Application of harmless error has nothing to do with what objection was made. There is no preservation issue in this case. The issue of harmless error is first raised on appeal by the State, or even the reviewing court on its own motion, to affirm the conviction in spite of error. Harmless error in a criminal case by its nature raises a constitutional issue. The issue is whether by admission of evidence in error, a criminal defendant has been deprived of his or her right to a jury trial based on proof beyond a reasonable doubt.
Harmless error is found in two forms. Under the common law, error unaccompanied by prejudice is harmless error that is not subject to reversal. Clawson v. Rye, 281 Ark. 8, 11, 661 S.W.2d 354, 356-57 (1983) (quoting McCoy Farms, Inc. v. J. & M. McKee, 263 Ark. 20, 27, 563 S.W.2d 409, 413 (1978)). Clearly, Kelley was prejudiced by the admission of the undefined Texas convictions for indecency with a child younger than seventeen. Under the common law, the case would be subject to reversal. However, in Chapman v. California, 386 U.S. 18, 23 (1967), the United States Supreme Court declared that reversal in criminal cases is not required where it is shown that, beyond a reasonable doubt, the error did not affect the jury’s verdict. The majority’s approach in the present case fits neither pattern and fails to comply with requirements under the United States Constitution.
Harmless-error review looks, we have said, to the basis on which the “jury actually rested its verdict.” Yates v. Evatt, 500 U.S. 391, 404 (1991) (emphasis added). The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict surely would have been rendered but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Sullivan, 508 U.S. at 279 (emphasis in original).
There is no showing beyond a reasonable doubt that the admission of the Texas convictions did not contribute to the verdict, and on that basis, harmless error is not available to the court in this case. Therefore, I dissent.