Eliott v. State

27 S.W.3d 432, 342 Ark. 237, 2000 Ark. LEXIS 450
CourtSupreme Court of Arkansas
DecidedOctober 5, 2000
DocketCR 00-309
StatusPublished
Cited by33 cases

This text of 27 S.W.3d 432 (Eliott v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eliott v. State, 27 S.W.3d 432, 342 Ark. 237, 2000 Ark. LEXIS 450 (Ark. 2000).

Opinion

Ray Thornton, Justice.

This appeal comes from Nathan Eliott’s second conviction of two counts of rape of his stepdaughter, C.E., who was twelve and thirteen years old at the time of the crimes. 1 While awaiting his trial in this case, appellant escaped from the Van Burén County Jail, remaining at large for approximately one month before his apprehension. As a result of that incident, appellant pleaded guilty to second-degree escape, and a judgment and commitment order reflecting the escape conviction was entered into evidence at trial. A transcript of a taped phone conversation between appellant and the victim was also admitted into evidence. On appeal, appellant argues that the trial court erred in admitting the order and the transcript. We affirm the trial court’s rulings.

Ms. Alma Eliott, appellant’s former wife, testified that she noticed a change in her daughter’s behavior in early 1996. As a result, Ms. Eliott bought a tape recorder and attached it to her home telephone system. In May or June 1996, she retrieved a recorded conversation between C.E. and appellant in which appellant said, “Yes, I want to have sex with you.” C.E. and appellant discussed their prior sex acts. Ms. Eliott later confronted her daughter about the recording, and the child initially denied it. Ms. Eliott then turned the tape over to law enforcement officials.

C.E., sixteen years old at the time of trial, testified that appellant raped her in January 1996 when she was twelve and again in April 1996 when she was thirteen. She further testified that appellant threatened her, slapped her in the face, and threatened to kill the entire family if she told anyone. She also testified that she had the phone conversation, which her mother recorded, with appellant when he worked in Texas for two weeks on an oil job.

Following the introduction of evidence to establish that appellant raped C.E., the state called Officer James Paget, who testified that appellant escaped from the Van Burén County Jail in June 1997 while awaiting trial in this matter. After his capture, appellant was convicted of second-degree escape and sentenced to seventy-two months for the offense. A certified copy of the judgment and commitment order for appellant’s escape was admitted into evidence. Acting pro se, appellant objected, asserting that the introduction of the conviction was “just like before on [his] last jury trial, bringing up prior convictions.” The prosecutor responded by noting that the conviction of escape reflected a consciousness of guilt of the rape offenses. The trial court overruled the objection and allowed the admissibility of the escape order.

Appellant first argues that the trial court erred because the escape judgment and commitment order was improperly admitted as character evidence under Ark. R. Evid. 404(b) (2000). Arkansas Rule of Evidence 404(b) states:

Other Crimes, Wrongs, or Acts. 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.

Id. We have noted that the list of exceptions expressed by 404(b) is not an exclusive list, but rather is exemplary of the purposes for which otherwise inadmissible evidence of other crimes, wrongs, or acts would be admissible. Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). Such evidence must, however, be independently relevant under Rule 404(b), and the probative value of the evidence must outweigh any danger of unfair prejudice in accordance with Rule 403. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). Another crime is “independently relevant” if it tends to prove a material point and is not introduced merely to demonstrate that the defendant is a criminal. See Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998); Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994); White, supra. The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992).

When evidence of a prior crime reflects a consciousness of guilt, it is independently relevant and admissible under Rule 404(b). Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). Arkansas case law is replete with the proposition that the flight of a person charged with the commission of a crime has some evidentiary value on the question of his probable guilt. See Houston v. State, 215 Ark. 754, 223 S.W.2d 188 (1949); Herren v. State, 169 Ark. 636, 276 S.W. 365 (1925); Steven v. State, 143 Ark. 618 S.W.218, 221 S.W. 186 (1920).

Here, appellant’s escape conviction was not used to show his character, but to show his consciousness of guilt of the rape offenses. As stated above, the judgment and commitment order from appellant’s escape is relevant under 404(b). Skiver, supra. The escape conviction was relevant to the question of appellant’s guilt. Houston, supra. For these reasons, we hold that the trial court did not abuse its discretion in allowing appellant’s conviction into evidence.

Appellant also argues that the trial court erred by not giving the jury a cautionary instruction regarding the purpose of the admissibility of the escape conviction. This argument may not be reached because he failed to request a cautionary instruction at trial. When an appellant contends that the failure to give a cautionary instruction at trial constitutes reversible error, the failure to request the instruction precludes reversal based on that claim. See Regalado, supra. The pro se appellant should be aware before he elects to proceed pro se that pro se appellants receive no special consideration of their argument and are held to the same standard as a licensed attorney. Wade v. State, 288 Ark. 94, 702 S.W.2d 28 (1986).

As his second point on appeal, appellant argues that the trial court erred in allowing the admissibility of the transcript of a taped phone conversation between appellant and the victim. Specifically, appellant argues that the State failed to lay a proper foundation for the admission of a transcript of a taped phone conversation between appellant and the victim. At trial, the State attempted to play the taped conversation and to publish the transcript to the jury. Appellant only objected to the publication of the transcript by stating that the “transcript hasn’t been entered as evidence, yet ....

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Bluebook (online)
27 S.W.3d 432, 342 Ark. 237, 2000 Ark. LEXIS 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eliott-v-state-ark-2000.