Howerton v. State

413 S.W.3d 861, 2012 Ark. App. 331, 2012 WL 1608574, 2012 Ark. App. LEXIS 437
CourtCourt of Appeals of Arkansas
DecidedMay 9, 2012
DocketNo. CA CR 11-646
StatusPublished
Cited by4 cases

This text of 413 S.W.3d 861 (Howerton v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howerton v. State, 413 S.W.3d 861, 2012 Ark. App. 331, 2012 WL 1608574, 2012 Ark. App. LEXIS 437 (Ark. Ct. App. 2012).

Opinion

ROBIN F. WYNNE, Judge.

hln August 2010, Mark Stephen Hower-ton pled guilty to one count of computer child pornography and three counts of internet stalking of a child. After conducting a sentencing hearing, the trial court entered a judgment and commitment order in which it sentenced appellant to 120 months’ suspended sentence for the computer child-pornography charge, 240 months’ imprisonment for the first internet-stalking-of-a-child charge, forty-eight months’ imprisonment for the second internet-stalking-of-a-child charge to run consecutively to the first internet stalking charge, and 120 months’ suspended sentence on the third internet-stalking-of-a-child charge to run concurrently with the 120 months’ suspended sentence on the computer child-pornography charge. Appellant was also ordered to complete the Reduction of Sexual Victimization Program while in the Department of Correction, to comply with sex-offender registration requirements, and to undergo sex-offender treatment counseling upon his release from incarceration. One of the conditions of appellant’s 1 ^suspended imposition of sentence on the computer child-pornography charge is that he refrain from having access to the internet or unsupervised contact with minors during the course of the suspended sentence. Appellant now appeals, alleging error in his sentencing. We affirm the trial court, but modify the judgment as detailed below.

When appellant pled guilty, the following agreed statement of facts was entered into the record:

In March 2009, Mark Stephen Howerton began a 5½ month correspondence via internet chat and email, with an individual he believed to be a fourteen (14) year-old female named “Chloe” residing in Miami, Oklahoma. This individual was, in fact, Detective Chris Leaman with the Miami, Oklahoma Police Department.
During the course of this correspondence, Mr. Howerton routinely' sent to “Chloe” photographs and video of his penis and him masturbating. He informed “Chloe” that he would often cruise around the Promenade Mall and masturbate while watching young girls walking around the mall. Mr. Howerton sent “Chloe” images of one such event.
Mr. Howerton frequently solicited “Chloe” to send him nude pictures of herself and photos of her engaging in sexual contact with other minors that “Chloe” mentioned were her friends.
In addition, Mr. Howerton, on at least three occasions, solicited a meeting with “Chloe” for the purpose of engaging in sexual intercourse and deviate sexual activity with “Chloe.”

Prior to the sentencing hearing, appellant filed a motion in limine to exclude certain opinion testimony of probation officer Mike Markum and evidence related to guilt not presented in the first stage of this case. • In the motion, appellant objected to certain portions of a presentence report prepared by Mr. Markum that he alleged constituted opinions regarding appellant’s psychological state that Mr. Markum was not qualified to give.

Is At the sentencing hearing, appellant objected to the admission of the presen-tence report by Mr. Markum and the transcript of the chats between appellant and “Chloe.” The trial court denied appellant’s motion in limine as to both the pre-sentence report and the chat transcript. Kimberly Ray, appellant’s sister, testified that appellant dated two girls who were “very abusive'’ toward him. Ms. Ray also testified that their mother had recently passed away after an' illness that overlapped the criminal proceeding. She denied ever feeling that appellant was a threat to her children. Ms. Ray stated that she did not have' knowledge of appellant having any sexual attraction to children prior to this incident, although she was aware of his previous offenses of indecent exposure. Ms. Ray admitted that it would scare her to allow her daughter to be around someone who was not her brother but who had admitted to the same activity as appellant. Sherry Kick testified that she had been in a relationship with appellant for a year and eight months and that she had no problems with appellant being around her daughter, who was thirteen at the time of the hearing.

Appellant testified that' he was convicted of indecent exposure in 1995 and again in 1999. He admitted on cross-examination that he did not get caught the first time he exposed himself. He stated that, at the time of his online activity, he had involuntarily left a relationship with a woman for whom he cared. Appellant admitted that he learned early that “Chloe” claimed to be fourteen and that he initially had doubts about his conduct. Appellant denied that he was seeking out teenagers. He claimed that, because the relationship was over the internet, it was not real in his mind. He admitted to discussing the possibility of meeting with “Chloe” but denied, ever determining a place to meet. Appellant said that if “Chloe” |4had shown up at his door, he would have been “scared to death” because the relationship would have become real at that point.

Appellant stated that he felt Detective Leaman instigated the chats. He claimed that “Chloe” played an aggressive role during the chats. He stated that, because “Chloe” claimed to have sexual experience he would hope people of that age did not have, it made him feel as though he were not corrupting someone who was totally innocent. Appellant claimed that the first time he masturbated while driving around the Promenade Mall was when he was chatting with “Chloe.” Appellant also admitted to showing “Chloe” video of him masturbating within, seven to eight minutes of the first chat. Appellant denied trying to groom “Chloe” into trusting him and having sex with him. According to appellant, he was not being serious when he talked to “Chloe” about wanting to expose himself to Ms. Kick’s minor daughter.

Helen Miller, a therapist who began treating appellant in August 2009, testified that appellant was lonely and seeking a relationship. She stated that she thought appellant continued to interact with “Chloe” because “Chloe” admired him and he is secretive. She stated she did not believe appellant interacted with “Chloe” because of her age. Ms. Miller also stated that appellant believed he would not get caught and that she felt he drew a boundary at actually meeting “Chloe.” Ms. Miller further stated that she does not believe that exhibitionism and cyber-crimes are precursors to rape. She stated that on a low-moderate-high risk scale, she would rate appellant as moderate.

| ¡jThe trial court continued the hearing in order to read the documentary evidence, which included the presentence report, the chat-room transcript, and Ms. Miller’s report. When the hearing resumed, the trial court pronounced appellant’s sentence after hearing closing arguments by the parties. On February 25, 2011, appellant filed an objection to the length and conditions of his sentence and a motion for reconsideration. The judgment and commitment order was entered on February 28, 2011. Appellant’s posttrial motion was denied in an order entered on March 22, 2011. This timely appeal followed.

Appellant’s first point on appeal is that the trial court abused its discretion when it allowed admission of cumulative evidence not introduced for any relevant sentencing purpose. Trial courts have broad discretion in deciding evidentiary issues, and we will not reverse absent an abuse of discretion. Reed v. State, 2012 Ark. App. 225, 2012 WL 1111428.

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Cite This Page — Counsel Stack

Bluebook (online)
413 S.W.3d 861, 2012 Ark. App. 331, 2012 WL 1608574, 2012 Ark. App. LEXIS 437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howerton-v-state-arkctapp-2012.