Thomas v. State

• Decision Date: 27 June 2002
• Docket Number: No. CR 01-974.,CR 01-974.
• Citation: 79 S.W.3d 347,349 Ark. 447
• Parties: Roy Lee THOMAS v. STATE of Arkansas.
• Court: Arkansas Supreme Court

Page 347

79 S.W.3d 347

349 Ark. 447

Roy Lee THOMAS v. STATE of Arkansas.

No. CR 01-974.

Supreme Court of Arkansas.

June 27, 2002.

Cymber L. Tadlock, Public Defender, Pine Bluff, for appellant.

Mark Pryor, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellee.

DONALD L. CORBIN, Justice.

Appellant Roy Lee Thomas appeals the judgment of the Jefferson County Circuit Court, Second Division, convicting him of sexual solicitation of a child, a Class D felony, and sentencing him to six years' probation, a $6,000 fine, a $350 public defender fee, various court costs, 120 hours of community service, and counseling. For reversal, Thomas argues that the trial court erred in excluding relevant testimony of the victim's family life and background. The State has filed a cross-appeal from the sentencing order, asserting that the trial court erred by placing Thomas on probation after the jury had rejected any alternative sentence and fixed a sentence of imprisonment. As this case involves an appeal by the State, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(8) and Ark. R.App. P. — Grim. 3. We affirm the trial court's judgment.

Because Thomas does not challenge the sufficiency of the evidence to convict him, we will only discuss those facts pertinent to the issues raised. We first address Thomas's argument that evidence of the victim's background and family life was relevant to the issue of the victim's credibility. Thomas asserts that he should have been allowed to question the victim's grandmother, Lillie Hunter, about the victim's relationship with her estranged mother. We note at the outset that the decision to admit or exclude evidence is within the sound discretion of the trial court. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2002); McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001). We will not reverse a trial court's evidentiary ruling absent an abuse of discretion. Id. Nor will we reverse absent a showing of prejudice. Id. With this standard in mind, we review Thomas's argument.

The record reflects that Thomas was charged with having committed the offense of sexual abuse in the first degree by engaging in sexual contact with the victim, who was ten years old at the time. The charge stemmed from an incident that occurred on November 30, 1999, in which the victim went to Thomas's house to collect money that Thomas owed her for doing some work around his house. According to the victim, Thomas had told her that the money was in the bedroom on his dresser, and he instructed her to come in there to get it. At the time, Thomas was only wearing a robe. Once she went into the bedroom, Thomas began to remove the girl's clothes. He then laid her on the bed, took off his robe, laid on top of her, and rubbed his penis on the outside of her vagina.

The victim's grandmother, Ms. Hunter, testified on behalf of the State. During her cross-examination, it was revealed that the victim had come to live with Ms. Hunter when she was one-and-a-half years old. Ms. Hunter explained that the victim's mother was unfit, and that she had agreed to take care of the child to keep her from being placed in a foster home. Defense counsel asked Ms. Hunter if the child's mother came around often. Ms. Hunter stated that she did not. Defense counsel then asked Ms. Hunter when the victim had last seen her mother. The State objected to the question as being irrelevant. The trial court agreed and sustained the objection. At that point, defense counsel ended her cross-examination of Ms. Hunter.

Thomas now argues that the trial court erred in sustaining the State's objection and excluding the testimony, because the victim's family life and background were such that she could have had a motivation to lie about Thomas's actions. He contends that the jury could have used that information in assessing the credibility of the victim's testimony. The State contends that this argument is procedurally barred because Thomas never made the argument below, nor did he proffer the substance of the testimony that he wished to elicit from the witness.

We agree with the State that this point is barred because Thomas failed to apprise the trial court of the evidence that he now claims was relevant. Our rules of evidence require that when challenging the exclusion of evidence, a party must make a proffer of the excluded evidence at trial so that this court can review the decision, unless the substance of the evidence is apparent from the context. See Halford v State, 342 Ark. 80, 27 S.W.3d 346 (2000); Goff v. State, 341 Ark. 567, 19 S.W.3d 579 (2000); Ark. R. Evid. 103(a)(2). Thomas did not proffer the particular evidence that he now claims is relevant, and its substance is not apparent from the context of the questions. Moreover, we are at a loss as to how the fact that the victim's mother had abandoned her at a young age was in any way relevant to the victim's credibility as a witness. We are not aware of any direct correlation between a child's difficult or unstable background and her ability to tell the truth. Not surprisingly, Thomas cites no authority for this novel theory. Accordingly, we affirm the trial court's ruling on this issue.

Cross-Appeal

For its cross-appeal, the State argues that the trial court erred in placing Thomas on probation after the jury had already rejected probation and fixed his punishment at six years' imprisonment, the maximum prison sentence for a Class D felony. The State contends that the trial court exceeded its statutory authority in reducing Thomas's sentence, as it contends that Acts 535 and 551 of 1993 placed that authority solely in the jury.¹ The State does not challenge the actual terms of the sentence, only the trial court's authority to make any reduction in the jury's sentence. Before we address the merits of this issue, we must first determine that we have jurisdiction of the State's appeal.

The State's ability to appeal is not a matter of right; rather, it is limited to those cases described under Ark. R.App. P. — Crim. 3. See State v. Pruitt, 347 Ark. 355, 64 S.W.3d 255 (2002); State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000). Under Rule 3, we accept appeals by the State when our holding would establish important precedent or would be important to the correct and uniform administration of the criminal law. See State v. Osborn, 345 Ark. 196, 45 S.W.3d 373 (2001); State v. Stephenson, 340 Ark. 229, 9 S.W.3d 495 (2000). Sentencing and the manner in which statutory punishment provisions may be imposed arise in every criminal case where a conviction is obtained; hence, the application of our statutory sentencing procedures requires uniformity and consistency. Id. The issue raised by the State in this case concerns the trial court's authority to reduce a sentence fixed by a jury. Resolution of this issue will undoubtedly affect every criminal case tried before a jury. Accordingly, we have jurisdiction of the State's appeal.

The record reflects that the jury returned its verdict at the trial on September 26, 2000. The trial court did not pronounce sentence on Thomas at that time; rather, the trial court only addressed Thomas's right to appeal and the need for an appeal bond. Two days later, the State filed a motion asking the trial court to hold a sentencing hearing within thirty days. No action was taken on the motion. On November 15, 2000, the State filed a second motion to set a sentencing hearing. Again, no action was taken. Finally, on December 5, 2000, without a hearing or notice to the State or the victim, the trial court entered an order sentencing Thomas to six years' probation and a $6,000 fine, plus costs, counseling, and 120 days of community service. The State filed a motion for reconsideration of the sentence, but that motion was subsequently denied. Thereafter, the State timely filed a notice of cross-appeal.

For reversal, the State contends that the trial court lacked authority to reject the sentence fixed by the jury and impose an alternative sentence of probation. The State contends that the power afforded to the jury to fix punishment in criminal cases tried to a jury, pursuant to Ark.Code Ann. §§ 5-4-103 (Repl.1997) and 16-97-101 (Supp.2001), conflicts with the authority given to the trial judge to reduce a jury's sentence, pursuant to Ark.Code Ann. § 16-90-107(e) (1987). Because sections 5-4-103 and 16-97-101 were enacted after section 16-90-107(e), the State contends that section 16-90-107(e) has been repealed by implication. We disagree.

It is well settled that statutes relating to the same subject should be read in a harmonious manner, if possible. Wells v. State, 337 Ark. 586, 991 S.W.2d 114 (1999); Reed v. State, 330 Ark. 645, 957 S.W.2d 174 (1997). All legislative acts relating to the same subject are said to be in pari materia and must be construed together and made to stand if they are capable of being reconciled. Id. It is also well settled that repeal by implication is not favored. See Manatt v. State, 311 Ark. 17, 842 S.W.2d 845 (1992), cert. denied, 507 U.S. 1005, 113 S.Ct. 1647, 123 L.Ed.2d 268 (1993); Uilkie v. State, 309 Ark. 48, 827 S.W.2d 131 (1992); Watson v. State, 71 Ark.App. 52, 26 S.W.3d 588 (2000). Repeal by implication is only recognized in two situations: (1) where the statutes are in irreconcilable conflict, and (2) where the legislature takes up the whole subject anew, covering the entire subject matter of the earlier statute and adding provisions clearly showing that it was intended as a substitute for the former provision. Uilkie, 309 Ark. 48, 827 S.W.2d 131.

Section 5-4-103(a) provides: "If a defendant is charged with a felony and is found guilty of an offense by a jury, the jury shall fix punishment in a separate proceeding as authorized by this chapter." Subsection (b) then provides five instances in which the court shall fix punishment, none of which is relevant to this case. Section 5-4-103 was originally enacted in Act...