Hill v. State

2014 Ark. App. 31

• Court: Court of Appeals of Arkansas
• Decided: January 15, 2014
• Docket: CR-13-233
• Status: Published

Opinion

Cite as 2014 Ark. App. 31

ARKANSAS COURT OF APPEALS DIVISION IV No. CR-13-233

Opinion Delivered January 15, 2014

APPEAL FROM THE SEBASTIAN BRIAN ROBERT HILL COUNTY CIRCUIT COURT, APPELLANT GREENWOOD DISTRICT [NO. G-CR-2012-6] V. HONORABLE STEPHEN TABOR, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED; MOTION TO WITHDRAW GRANTED

ROBIN F. WYNNE, Judge

Brian Robert Hill appeals from his conviction on a charge of sexual assault in the

second degree. In accordance with Anders v. California, 386 U.S. 738 (1967), and Arkansas

Supreme Court and Court of Appeals Rule 4-3(k), his counsel has filed a motion to withdraw

accompanied by a no-merit brief. We affirm and grant the motion to withdraw.

On February 21, 2012, appellant was charged with one count of sexual assault in the

second degree. Prior to trial, the State filed a motion in limine in which it stated that it

intended to have the victim testify at trial as to additional incidents of sexual assault committed

by appellant in Mississippi and sought to have the testimony declared admissible. In the

motion, the State alleged that the testimony was admissible under Arkansas Rule of Evidence

404(b) to prove motive, intent, plan, and lack of mistake on the part of the defendant. The Cite as 2014 Ark. App. 31

State also alleged that the testimony was admissible under the pedophile exception to Rule

404(b).

At the time of the alleged incident, C.H., the victim, lived with her mother, appellant,

who was her stepfather, and her siblings in Mississippi. C.H., who was fourteen years old at

the time of trial, testified that in July 2011, while she and her family were staying at her aunt’s

home in Greenwood, Arkansas, appellant asked her to rub his penis. After she refused, he put

her hand on his penis and rubbed for “a minute or two.” C.H. also testified that there were

approximately thirty additional incidents that occurred in Mississippi when appellant made her

rub his penis and perform oral sex on him. Appellant did not object to the testimony.

After the close of the State’s evidence, appellant made a general motion for directed

verdict, which was denied. Appellant testified that he was forty-five years old. He denied

ever having sexual contact with C.H. Appellant rested without renewing his motion for

directed verdict.

The jury found appellant guilty of sexual assault in the second degree. The trial court

sentenced him to 240 months’ imprisonment. This appeal followed.

A request to withdraw on the ground that the appeal is wholly without merit shall be

accompanied by a brief including an abstract and addendum. Ark. Sup. Ct. R. 4-3(k)(1)

(2013). The brief shall contain an argument section that consists of a list of all rulings adverse

to the defendant made by the circuit court on all objections, motions and requests made by

either party with an explanation as to why each adverse ruling is not a meritorious ground for

reversal. Id. The abstract and addendum of the brief shall contain, in addition to the other

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material parts of the record, all rulings adverse to the defendant made by the circuit court.

Id. Appellant was provided with a copy of counsel’s motion and brief and was informed of

his right to submit pro se points for reversal in accordance with Rule 4-3(k)(2). Appellant did

not file pro se points for reversal.

Counsel argues in the brief that there would be no merit to a challenge to the

sufficiency of the evidence to support the jury’s verdict because any such challenge would not

be preserved. Arkansas Rule of Criminal Procedure 33.1 requires that a defendant make a

specific motion for directed verdict in which the defendant states the respects in which the

evidence is deficient. In this case, appellant made a general motion for directed verdict that

was insufficient to preserve the issue for review. Rule 33.1 also requires a defendant in a trial

before a jury to make a motion for directed verdict at the close of the State’s case and to

renew the motion at the close of all of the evidence. Appellant failed to properly renew his

motion at the close of the evidence. We agree with counsel that any challenge to the

sufficiency of the evidence to support the jury’s verdict would not be preserved.

The only other ruling identified by counsel as being arguably adverse to appellant was

C.H.’s testimony regarding the alleged incidents in Mississippi, which constitutes an implicit

grant of the State’s motion in limine by the trial court. As counsel points out, appellant never

objected to the testimony, nor does the record contain any indication that appellant opposed

the motion in limine. In order to preserve an evidentiary challenge for appellate review, a

party must object at the first opportunity. Fields v. State, 81 Ark. App. 351, 101 S.W.3d 849

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(2003). We agree with counsel’s assertion that appellant would be barred from arguing on

appeal that the trial court erred by allowing the testimony.

We hold that counsel has complied with the requirements of Rule 4-3(k). The trial

court’s sentencing order is affirmed, and the motion to withdraw as counsel is granted.

Affirmed; motion to withdraw as counsel granted.

HIXSON and BROWN, JJ., agree.

Kent McLemore, for appellant.

No response.