Steven PASCUZZI, Appellant v. STATE of Arkansas, Appellee
No. CR-15-715
Court of Appeals of Arkansas, DIVISION III.
Opinion Delivered April 20, 2016
2016 Ark. App. 213
McElwee argues that the facts of the present case are similar to Cranford v. Arkansas Department of Human Services, 2011 Ark. App. 211, 378 S.W.3d 851. In Cranford, where this court reversed the circuit court‘s finding that it was in the best interest of the child to terminate parental rights where the minor child had been placed with his grandparents. We held that the evidence was insufficient to establish that termination of either parent‘s parental rights would serve the child‘s best interest because there was no danger in allowing the parents to have continued contact with the child. Id. at 11-12, 378 S.W.3d at 856-57.
There is some similarity between Cranford and the present case in that the minor child had been placed with a relative; however, the differences between the cases are determinative. In Cranford, there was no evidence of abuse, whereas in the present case M.M. had a one-and-a-half-inch by four-inch burn on his leg that the physician stated was not caused by contact with a heating vent, as the parents had claimed. In Cranford, domestic abuse was not an issue; however, in the present case, the child was removed from the home because of McElwee‘s physical abuse of Melody, which he denied had ever occurred. Also, drug abuse was not present in Cranford, whereas drug-related issues are at the core of this case. At the time of the termination hearing, McElwee was serving a lengthy prison sentence for delivery of methamphetamine. During the pendency of the case, he had been arrested on other drug-related charges and had been incarcerated for short periods of time and then released. The only evidence McElwee presented to indicate he had sought help with his drug issues was his own testimony that he had attended NA meetings while incarcerated. He did not provide documentation of his attendance. Clearly, the facts in this case are different from the facts in Cranford in that they support the circuit court‘s finding that it was in M.M.‘s best interest to terminate McElwee‘s parental rights.
The circuit court in the present case found by clear and convincing evidence that it was in the best interest of M.M. to terminate parental rights. In making its best-interest finding, the circuit court specifically considered the likelihood of potential harm to the health and safety of the juvenile if he was returned to the custody of the parents: “The Court finds that the juvenile would be at great risk of harm if returned to the parents due to their drug use, mental-health issues, and inability to conform their behavior to the requirements of the law as evidenced by their chronic incarceration.” We hold that the circuit court‘s conclusion that termination of McElwee‘s parental rights was in M.M.‘s best interest was not clearly erroneous.
Affirmed.
Hixson and Brown, JJ., agree.
Leslie Rutledge, Att‘y Gen., by: Pamela Rumpz, Ass‘t Att‘y Gen., for appellee.
BART F. VIRDEN, Judge
¶1 After appellant Steven L. Pascuzzi pleaded guilty to second-degree sexual assault, a Garland County jury sentenced him to five years’ imprisonment.1 On appeal, Pascuzzi argues that the trial court erred during the sentencing phase in not declaring a mistrial when the State improperly accused him of “inappropriate sexual contact” with his mother-in-law. We affirm but remand to correct an error in the sentencing order.2
I. Testimony at Sentencing Phase
Following Pascuzzi‘s guilty plea, a sentencing hearing was held before a jury. The victim, K.S., testified that she was eleven years old when Pascuzzi, whom she described as her “uncle-in-law,” forced her to touch his penis while he masturbated. After K.S. reported the assault through the child-abuse hotline, Investigator Jennifer Tonseth with the Garland County
Pascuzzi conceded that he was babysitting K.S. and his four children at the time of the assault, and he testified that since his incarceration his children were being cared for by his mother-in-law. Pascuzzi denied assaulting any other children. The prosecutor then asked, “Would you agree with me that you‘ve acted sexually inappropriate with your mother-in-law?” Defense counsel objected to the question on the bases that it was irrelevant and prejudicial and that “we have not heard any testimony about the mother-in-law.” The prosecutor said, “Your Honor, [Pascuzzi]‘s saying he‘s so sorry, that he wishes he could undo it again. I think the fact that if he‘s sexually inappropriate with other individuals indicates—.” After some discussion, the prosecutor withdrew the question.
II. Argument
¶2 Pascuzzi argues that the trial court should have declared a mistrial following the prosecutor‘s improper and highly prejudicial question. Relying on the third exception in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), Pascuzzi argues that the trial court had a duty to intervene and correct the serious error. He contends that the question violated his fundamental right to a fair trial and tainted the minds of the jurors.
III. Discussion
Pascuzzi cites Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993), in which our supreme court reversed and remanded for a new trial after the prosecutor left an impression in the jurors’ minds that complaints existed against the police-officer defendant for threatening to plant drugs on women if they refused him sex. The court noted that the prosecutor‘s questions and comments tainted the jury‘s decision and violated the fundamentals of the criminal-justice system.
Dillon, however, is readily distinguishable in that defense counsel moved for a mistrial and sought an admonishment to the jury and, therefore, there was no argument concerning the Wicks exceptions. Here, Pascuzzi did not request a mistrial or an admonition to the jury. Further, once the prosecutor withdrew the question, Pascuzzi received all the relief he had requested. See Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994).
¶3 It is a well-settled general rule that we will not consider issues raised for the first time on appeal; a contemporaneous objection is required to preserve an issue for appeal. Davis v. State, 2011 Ark. App. 561, 2011 WL 4477941. Our supreme court in Wicks set forth four narrow exceptions to the contemporaneous-objection rule. The only exception at issue here is the third one: when the trial court has a duty to intervene, without an objection, and correct a serious error either by an admonition to the jury or by ordering a mistrial.
The type of serious error contemplated by this exception deals with errors affecting the very structure of the criminal trial. See, e.g., Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003) (holding that court would consider, without contemporaneous objection, issues involving infringement on right of presumption of innocence and State‘s burden of proof); Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995) (reversing conviction where defendant was tried before a jury of only six members rather than twelve); Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992) (reversing convictions where there was no express waiver by defendant of right to jury trial).
Affirmed; remanded to correct error in sentencing order.
Hixson and Brown, JJ., agree.