Finfrock v. State

514 S.W.3d 483

Gregory Wayne FINFROCK, Appellant

v.STATE of Arkansas, Appellee

No. CR–16–516

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered February 15, 2017

Knutson Law Firm, by: Gregg A. Knutson, Benton, for appellant.

Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., Little Rock, for appellee.

N. MARK KLAPPENBACH, Judge

Appellant Gregory Wayne Finfrock was convicted by a jury in Washington County Circuit Court of two counts of rape and one count of sexual indecency with a child. The charges were based on allegations that appellant, a man in his forties, digitally and orally penetrated the vagina of a twelve-year-old girl, MA; that appellant had MA place appellant's penis in her mouth; that appellant sent nude photographs of himself to MA; and that appellant exposed himself in person to MA. Appellant admitted that he had committed sexual crimes against MA, the daughter of appellant's friend who lived next door. Appellant was sentenced by the jury to 30 years in prison on each count of rape and to 6 years in prison on the count of sexual indecency with a child.¹ The trial judge imposed consecutive sentences, resulting in a total term of 66 years of incarceration. Appellant appeals, contending that the trial court abused its discretion in refusing his request to give the jury certain model jury instructions during the sentencing phase that pertained to concurrent and consecutive sentences, to transfer and parole eligibility, and to application of the 70 percent rule. We affirm the trial court's discretionary decision.

We will not reverse a trial court's decision to give or reject a jury instruction unless the court abused its discretion. Gay v. State , 2016 Ark. 433, 506 S.W.3d 851 ; Akers v. State , 2015 Ark. App. 352, 464 S.W.3d 483. Abuse of discretion is a high threshold that does not simply require error in the trial judge's decision but requires that the trial judge acted improvidently, thoughtlessly, or without due consideration. Craigg v. State , 2012 Ark. 387, 424 S.W.3d 264 ; Squyres v. State , 2015 Ark. App. 665, 476 S.W.3d 839. Additionally, absent a showing of prejudice, we will not reverse. Miller v. State , 97 Ark. App. 285, 248 S.W.3d 487 (2007).

During trial, but outside the presence of the jury, the prosecuting attorney, the defense attorney, and the trial judge discussed the matter of jury instructions. The prosecuting attorney asserted that the State "would rather not have" the model jury instructions on nonbinding recommendations for consecutive sentences or on parole eligibility. Defense counsel argued that the jury should be aware of the model jury instructions regarding recommendations for consecutive sentences, stating that

[the jury should have] the opportunity to decide that without guessing because I don't want them back in the jury room wondering .... If they've got a term of years, I want to be able to talk to them in sentencing how the math is going to work out... at least I can talk about it at sentencing that they have some options ... the fact that it's not binding, you [the trial court] still have the ultimate authority and discretion to give him whatever it is if they come back with some numbers [of years]. ... I would like to be able to address that to them so that they don't go back there and get confused.

With regard to instructing the jury regarding parole eligibility, defense counsel stated that it was the same argument and that he did not want the jury to think appellant would serve only half of a sentence prior to being released from prison. Defense counsel stated that he wanted the jury to make the best decision for the community knowing the parameters of how the sentence would play out, that this was relevant to sentencing, and that he wanted the opportunity to talk to the jury about those instructions. The trial judge stated that he would think about it during a break in the proceedings and make a ruling when they reconvened.

After the break, the trial judge announced which jury instructions he intended to give the jury, which did not include the model jury instructions that the defense wanted. Defense counsel proffered those four jury instructions as defense exhibits, which read as follows:

(1) AMCI2d 9112—Stage Two: Consecutive Sentence Recommendation—

You have convicted Gregory Wayne Finfrock of more than one offense, and you may sentence him to a term of imprisonment on each offense. If you sentence him to more than one term of imprisonment, you may also make a recommendation that any two or more terms of imprisonment be consecutive. A sentence to consecutive terms of imprisonment means that the terms of imprisonment will be added together to determine the total term of imprisonment.

You are advised that a recommendation by you that terms of imprisonment be consecutive will not be binding on the court.

(2) AMCI2d 9318—Stage Two: Consecutive Sentence Recommendation—

If you sentence Gregory Wayne Finfrock to two or more terms of imprisonment, you may make ONE of the following recommendations:

____ We, the Jury, recommend that all of the terms of imprisonment be consecutive.

____ We, the Jury, recommend that none of the terms of imprisonment be consecutive.

____ We, the Jury recommend that the terms of imprisonment for the following offenses be consecutive: _________________________

_____________________

Foreman

(3) AMCI2d 9401—Transfer Eligibility: Felonies Below Transfer Eligibility Line on Sentencing Grid—

In your deliberations on the sentence to be imposed, you may consider the possibility of the transfer of Gregory Wayne Finfrock from the Department of Correction to the Department of Community Correction. After he serves 1/3 of any term of imprisonment to which you may sentence him, he will be eligible for transfer from the Department of Correction to the Department of Community Correction. If transfer is granted, he will be released from prison and placed under post-prison supervision. The term of imprisonment may be reduced further, up to 1/6 of any period you impose, if he earns the maximum amount of meritorious good time during his imprisonment.

Meritorious good time is time-credit awarded for good behavior or for certain achievements while an inmate is confined in a Department of Correction or Community Correction facility, or in a jail while awaiting transfer to one of those facilities. An inmate may be awarded up to one day for every day served. Accrual of meritorious good time does not reduce the length of a sentence but does decrease the time the defendant is required to be imprisoned before he becomes eligible for transfer to community supervision, under which the remainder of his sentence will be served.

(4) AMCI2d 9404–A—Release Eligibility: Seventy Percent Law [Act 570]—

In your deliberations on the sentence to be imposed, you may consider the possibility that Gregory Wayne Finfrock will be paroled or transferred to community correction supervision. Eligibility for parole or transfer to community correction supervision is as follows:

I.

Rape is punishable by life imprisonment, or a

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