Marshall v. State

27 S.W.3d 392, 342 Ark. 172, 2000 Ark. LEXIS 430
CourtSupreme Court of Arkansas
DecidedSeptember 28, 2000
DocketCR-00-019
StatusPublished
Cited by20 cases

This text of 27 S.W.3d 392 (Marshall 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
Marshall v. State, 27 S.W.3d 392, 342 Ark. 172, 2000 Ark. LEXIS 430 (Ark. 2000).

Opinion

Ray Thornton, Justice.

Appellant, Raymond Clinton Marshall, a habitual offender with a prior child-molestation conviction in another state, pleaded guilty to multiple child sexual-abuse charges in Arkansas, and following his conviction on those charges, a sentencing hearing was held to develop evidence of other factors, including aggravating and mitigating circumstances, relating to the imposition of sentences for these two new convictions. The issue in this case is whether appellant’s status as a fugitive from an indictment for sexual solicitation of a child in that other state could appropriately be considered by the trial court as an aggravating circumstance in determining the sentence of appellant for multiple child sexual-abuse convictions in Arkansas. We con-elude that, because the trial judge specifically stated that he would not be considering the indictment for purposes of a conviction or as evidence of guilt, appellant has not met his burden to overcome the presumption that the trial court will only consider competent evidence. Finding no error in the rulings of the trial court, we affirm.

Appellant Raymond Clinton Marshall was a twenty-seven-year-old employee of Skate Connection in Sherwood when he befriended a twelve-year-old boy who will be referred to as H.K. Sometime in the early part of July, 1997, appellant was allowed by H.K.’s grandmother to spend the night in the family home, where he performed oral sex on the child. For this crime, appellant was charged with the crime of rape.

Similarly, appellant met another twelve-year-old boy, D.S., at Skate Connection. On May 17, 1998, appellant offered to show the child pornography, rubbed his own genitals in the child’s presence, and also rubbed D.S.’s genitals under his clothing. For this crime, appellant was charged with committing the act of sexual abuse in the first degree.

When these instances were reported to the Sherwood Police Department, their investigation uncovered a video camera that appellant had installed to videotape boys at the urinals in the restroom at the skating rink. Tape recordings of these scenes were found in appellant’s living quarters in a backroom of the skating rink.

On May 4, 1999, appellant changed his plea to guilty on the charges alleged against these two victims, and the State introduced evidence of eleven prior felony convictions from the state of Georgia for purposes of establishing his status as a habitual offender. In 1990, on a charge of burglary, appellant received a sentence of twenty years, with seventeen years suspended. Also in 1990, in two different cases, appellant pleaded guilty to two additional counts of burglary and entering an automobile with intent to commit theft. He was sentenced to five years with three suspended for these charges. Again in 1990, appellant pleaded guilty to two counts of theft of a motor vehicle and received a sentence of ten years with seven suspended, and entered a plea to four counts of burglary, for which he was sentenced to five years, with two suspended. Then, in 1992, he was sentenced to twenty years in prison, with seventeen suspended, for committing the crime of child molestation. The defense offered no objection to the introduction of evidence of appellant’s prior convictions.

A sentencing hearing was held on June 7, 1999, and appellant was sentenced to life in prison for the rape of H.K. and to thirty years for the abuse of D.S., to be served concurrently. Appellant brings this appeal, seeking resentencing on the grounds that the trial court improperly considered inadmissible evidence and based his sentence on this evidence, in contravention of this court’s holding in Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999). We do not agree that Walls v. State, supra, which concerned a trial judge’s statement at sentencing that he was holding the appellant responsible for crimes committed by another person, not a defendant before the court, should be extended to prohibit the admission of evidence of aggravating circumstances relating to appellant’s status as a fugitive from a pending indictment in another state.

When sentencing is by the court, as was the case here, Ark. Code Ann. § 16-97-102 (Supp. 1999) provides that “when either party requests to present evidence relevant to sentencing, the court shall hear or receive such evidence and any rebuttal by the opposing party. . . .” Id. Evidence relevant to sentencing may include, but is not limited to, prior convictions of the defendant, victim-impact evidence or statements, relevant character evidence and evidence of aggravating and mitigating circumstance. Ark. Code Ann. § 16-97-103 (Supp. 1999). In sum, it is anticipated that the trial judge, when sitting as the sentencing body, will accept all relevant evidence on the question of sentencing. Id. It is presumed that a trial judge will only consider competent evidence. Clinkscale v. State, 269 Ark. 324, 602 S.W.2d 618 (1980). This presumption can be overcome only when there is an indication that the judge gave some consideration to inadmissible evidence. Id. The introduction of evidence during this stage must be governed by our rules of admissibility and exclusion; otherwise, these proceedings would not pass constitutional muster, which is all the more reason to permit appeal. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).

Specifically, appellant charges that the trial court erred in allowing the State to introduce evidence that appellant had been indicted by a grand jury in Georgia for the crime of enticing a child for indecent purposes, accusing him of soliciting oral sex from a young boy, and that a bench warrant was outstanding for his return to Georgia to answer to these charges. Defense counsel objected to these documents when the State offered them for proof of his state of mind in fleeing the charges and as relevant to any possibility of rehabilitation. The trial court overruled the objection and noted that, “The court accepts it not as a conviction or not for purposes of guilt.” Appellant contends on appeal that the trial court erred in admitting the evidence and then improperly relied upon it in pronouncing sentence.

Appellant bases his contention that the trial court improperly considered inadmissible evidence on the judge’s comments at sentencing:

Mr. Marshall, at this point this isn’t even about you. It’s at this point so far out of hand that it’s about the kids. And the court is especially troubled by the fact that you had a case pending in Georgia at the time you left there. You fled rather than facing it, where you might have gotten some help or at least you would have been kept away from [D.S.] and [H.K.] But you consciously left the state of Georgia and you came here and you did these things with these children. And, therefore, the court has to make a determination. Not that the court has any malice towards you, period; but it’s not about you at this point. It’s about what we do to protect these children. Your interests no longer are on an even keel or of concern at this point.
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Bluebook (online)
27 S.W.3d 392, 342 Ark. 172, 2000 Ark. LEXIS 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-state-ark-2000.