White v. State

2012 Ark. 221

408 S.W.3d 720

Chad Lee WHITE, Appellant

v.STATE of Arkansas, Appellee.

No. CR 11–872.

Supreme Court of Arkansas.

May 24, 2012.

Paul J. Teufel, Jonesboro, for Appellant.

Dustin McDaniel, Atty. Gen., Kathryn Henry, Asst. Atty. Gen., for Appellee.

JIM GUNTER, Justice.

Appellant was convicted of rape and second-degree battery and now appeals his convictions, arguing that the circuit court erred in (1) ordering him to complete a sex-offender treatment program while incarcerated, and (2) allowing evidence of prior alleged misconduct involving a minor to be introduced during the sentencing phase of the trial. Because this is a criminal appeal in which life imprisonment has been imposed, this court has jurisdiction pursuant to Ark. Sup.Ct. R. 1–2(a)(2). We remand for modification of appellant's sentence on the first point and affirm on the second point.

Because appellant is not challenging the sufficiency of the evidence supporting his convictions, only a brief recitation of the facts is necessary. In a criminal information filed May 10, 2010, appellant with charged, as a habitual offender, with one count of rape and one count of battery in the first degree. It was alleged that appellant had engaged in deviate sexual activity with, and caused serious physical injury to, a two-year-old boy. The battery charge was later reduced to second-degree battery.

A jury trial was held March 15–17, 2011, at which the State presented evidence that appellant had anally penetrated a neighbor's two-year-old son while babysitting him. The jury found appellant guilty of rape and second-degree battery and recommended sentences of life imprisonment and twelve years' imprisonment, respectively. The court imposed the recommended sentences to run concurrently and also ordered appellant to complete a sex-offender treatment program while incarcerated. A judgment and commitment order was entered on March 24, 2011, and appellant filed a notice of appeal on March 25, 2011. Specific facts pertinent to the points on appeal will be discussed below.

For his first point on appeal, appellant argues that the circuit court had no authority to order him to complete a sex-offender treatment program while in the custody of the Department of Correction. Appellant concedes he made no objection to this part of his sentence below but contends that the sentence is an illegal sentence, which he can raise for the first time on appeal. This court views an issue of a void or illegal sentence as being an issue of subject-matter jurisdiction, which we may review whether or not an objection was made to the circuit court. Richie v. State, 2009 Ark. 602, 357 S.W.3d 909. A sentence is void or illegal when the circuit court lacks the authority to impose it. Id.

In Arkansas, sentencing is entirely a matter of statute. Donaldson v. State, 370 Ark. 3, 257 S.W.3d 74 (2007). Arkansas Code Annotated section 5–4–104(a) (Supp.2011) states that “[n]o defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.” In the present case, appellant argues that he was sentenced according to Ark. Code Ann. § 5–4–401 (Repl.2006) and Ark.Code Ann. § 5–4–501 (Supp.2011), and that neither of these statutes authorizes the court to order a defendant to complete a sex-offender treatment program. Therefore, appellant asserts, that part of his sentence is illegal.

Based on this court's recent decision in Richie, supra, appellant is correct that the circuit court erred in ordering him to complete a sex-offender treatment program. In Richie, the defendant was ordered to submit to drug and alcohol treatment during his incarceration, and on appeal, he argued that the court lacked the authority to impose such a condition. This court agreed, noting that, pursuant to Ark.Code Ann. § 5–4–303, a circuit court may clearly place conditions on a defendant when the court suspends the imposition of sentence or places the defendant on probation, but that “there is no similar provision in section 5–4–104(d) that would allow a court to place specific conditions on a sentence of incarceration.” 2009 Ark. 602, at 8, 357 S.W.3d at 914. We explained: “[G]enerally speaking, absent a statute, rule, or available writ, once the circuit court enters a judgment and commitment order, jurisdiction is transferred to the Department of Correction—the Executive Branch—and it is for that branch to determine any conditions of incarceration, such as whether the defendant will undergo drug treatment.” Id. at 11, 357 S.W.3d at 915. Thus, we held that the court imposed an illegal sentence when it attempted to require Richie to undergo drug and alcohol treatment and remanded to the circuit court with directions to strike the unlawful condition. Likewise, in the present case, we hold that the condition of appellant's incarceration requiring sex-offender treatment is illegal, and to correct this error, we remand for the circuit court to strike the unlawful condition and enter a corrected judgment and commitment order.

For his second point on appeal, appellant argues that the circuit court erred in allowing evidence of prior alleged misconduct involving a minor to be introduced during the sentencing phase of his trial. This court has made clear that the rules of evidence apply to evidence introduced at the sentencing phase; however, pursuant to Ark.Code Ann. § 16–97–103 (Repl.2006), certain evidence is admissible at sentencing that would not have been admissible at the guilt phase of the trial. Brown v. State, 2010 Ark. 420, 378 S.W.3d 66. A circuit court's decision to admit evidence in the penalty phase of a trial is reviewed for an abuse of discretion. MacKool v. State, 365 Ark. 416, 231 S.W.3d 676 (2006).

Prior to trial, appellant filed a motion in limine to prevent the introduction of certain 404(b) evidence, specifically evidence regarding an alleged incident that occurred in 2008 in which appellant was accused of kissing a nine-year-old boy on the neck and side, leaving hickeys on the boy. There was an investigation by the police, but no charges were ever filed. Appellant argued that this was improper character evidence and that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Thus, appellant asked the court to find that “the State should not be allowed to introduce evidence of the alleged conduct against him in any way.”

The motion was discussed at a pretrial hearing held March 14, 2011. The State explained that appellant, in his statement to the police, had made a reference to this prior alleged incident, and it was the State's understanding that appellant wished to redact that part of his statement. The prosecutor stated, “I don't intend on putting that evidence in with live testimony of my own during my case in chief. I do intend for those witnesses to testify at sentencing. But I am opposed to redacting the confession away.” The court delayed ruling until the second day of trial; however, at that time, framing the issue as whether appellant's statement should be redacted, the court found that there was not enough similarity between the alleged incident and the present case and that “the possible prejudicial—unfair prejudice outweighs the probative value, and I'm going to grant your motions.” Thus, appellant's reference to the incident in his statement was redacted.

After the jury found appellant guilty and the case proceeded to the penalty phase, the State called Detective Gary Connor with the Washington County Sheriff's Office to testify regarding the alleged incident in 2008. Detective Connor testified:

The allegation was called in to the sheriff's office because a mother thought that her nine-year-old son had been sexually abused by a neighbor. The neighbor was identified as Mr. White. The mother noticed a hickey on the nine-year-old son's neck and another on his side.... When I interviewed Mr. White later on that afternoon, I asked him about that and just asked him to explain to me how that happened or what had happened. He admitted that he held the boy down, kissed him on the neck and on his side but denied any real sexual contact with the boy.

On cross-examination, Detective Connor explained that no charges were ever filed in that case. The State also presented the testimony of Jessica Winters, appellant's former probation officer, who stated that, in 2008, she told appellant to stay away from little boys after he told her of “an incident of inappropriate contact that he had, um, biting young children.” The defense raised no objection to either witness's testimony.

On appeal, appellant argues that the admission of the above testimony constituted a violation of his rights under the Confrontation Clause. The Confrontation Clause bars admission of testimonial statements of a witness who does not appear at trial, unless the witness is unavailable to testify, and the defendant previously had the opportunity to cross-examine the declarant. Vankirk v. State, 2011 Ark. 428, 385 S.W.3d 144 (citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). This court recently held in Vankirk that the right of confrontation applied to a sentencing proceeding before a jury. We also explained that

[w]here a statement is made to a government official, it is presumptively testimonial, but the statement can be shown to be nontestimonial where the primary purpose of the statement is to obtain assistance in an emergency. Where a statement is made to a nonofficial, it is presumptively nontestimonial, but can be shown to be testimonial if the primary purpose of the statement is to create evidence for use in court.

Id. at 5, 385 S.W.3d at 148 (quoting Seely v. State, 373 Ark. 141, 152, 282 S.W.3d 778, 787 (2008)). If a statement is not testimonial, there is no Confrontation Clause issue, but if a statement is testimonial, the Confrontation Clause is implicated. Vankirk, 2011 Ark. 428, at 6, 385 S.W.3d...