Nicholas Hernandez-Lopez v. State of Arkansas

2020 Ark. App. 109

• Court: Court of Appeals of Arkansas
• Decided: February 12, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 109 Reason: I attest to the ARKANSAS COURT OF APPEALS accuracy and integrity of this document DIVISION I Date: 2021-06-30 12:03:39 Foxit PhantomPDF Version: No. CR-19-523 9.7.5

Opinion Delivered: February 12, 2020

NICHOLAS HERNANDEZ-LOPEZ APPELLANT APPEAL FROM THE POPE COUNTY CIRCUIT COURT V. [NO. 58CR-18-324]

STATE OF ARKANSAS HONORABLE WILLIAM PEARSON, APPELLEE JUDGE AFFIRMED

MIKE MURPHY, Judge

Appellant Nicholas Hernandez-Lopez was convicted by a Pope County jury of one

count of second-degree sexual assault. In accordance with the jury’s recommendation, the

circuit court sentenced Hernandez-Lopez to serve five years in the Arkansas Department of

Correction. On appeal, Hernandez-Lopez argues that the circuit court erred in permitting

witness testimony regarding the victim’s credibility. We affirm.

Hernandez-Lopez was charged by information with the rape and second-degree

sexual assault of then twelve-year-old M.A. 1 The offenses were alleged to have occurred

beginning when she was nine years old.

Because Hernandez-Lopez does not challenge the sufficiency of the evidence, only

a brief summary of the facts supporting his conviction is necessary. According to Alyssa

1 The jury acquitted him of the rape charge. Petty, M.A.’s school counselor, a student came to her with troubling information regarding

M.A. and her stepfather, Hernandez-Lopez. Petty testified that she confronted M.A. with

the allegations, and as a result of M.A.’s response, the school contacted the child-abuse

hotline.

At trial, M.A. first testified about a specific incident that occurred in April 2018. She

stated Hernandez-Lopez crawled into bed with her and, laying with his front to her back,

he touched her chest and buttocks. She also recalled feeling his penis become erect. She

then generally described other inappropriate interactions between her and Hernandez-

Lopez—some involving him putting his mouth on her vagina—but she testified that he

“very rarely” touched her vagina.

Hernandez-Lopez also testified. He generally denied the allegations and challenged

M.A.’s credibility.

On appeal, Hernandez-Lopez argues that the circuit court abused its discretion in

admitting Petty’s testimony regarding M.A.’s credibility. He directs us to her specific

testimony in response to the State’s question about whether she had an occasion to develop

an opinion regarding M.A.’s character for truthfulness or reputation for truthfulness. Petty

responded, “She has never given me any reason to think that she had lied or was lying to

me, so I would say she has a good reputation.” Following the testimony, Hernandez-Lopez

did not object, and the State passed the witness.

This argument is not preserved for appeal because Hernandez-Lopez did not make a

contemporaneous objection during this testimony, which is required to preserve an issue

for appeal. See Gadsden v. State, 2019 Ark. App. 153, at 5, 570 S.W.3d 527, 530; see

2 also Johnson v. State, 2013 Ark. 494, at 3, 430 S.W.3d 755, 756 (holding that a defendant’s

failure to make a contemporaneous objection to testimony prevents him from asserting on

appeal any error on the part of the circuit court for admitting the evidence).

We note that Hernandez-Lopez filed a pretrial motion in limine “to prevent State

witnesses from giving opinion as to alleged victim’s truthfulness of statements made.” Our

supreme court has held that a contemporaneous objection at trial is not required when the

objection was made in a motion in limine and was overruled, but if the court did not clearly

overrule the pretrial objection and it specifically informed the parties that they may object

at the time and they do not, the issue is not preserved for appeal. Johnson, 2013 Ark. 494,

430 S.W.3d 755. Here, the circuit court did not rule on Hernandez-Lopez’s motion, and it

specifically advised the parties “to wait until the trial” and the court would address it then.

Hernandez-Lopez did not object to Petty’s testimony regarding her opinion of M.A.’s

character for truthfulness.

Accordingly, because no specific objection was made to the circuit court,

Hernandez-Lopez’s argument is not preserved, and we affirm.

Affirmed.

GRUBER, C.J., and ABRAMSON, J., agree.

Lisa-Marie Norris, for appellant.

Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Sr. Ass’t Att’y Gen., for appellee.