DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR00-1330

June 13, 2001

MARK JAMES ENGEBRETSON AN APPEAL FROM GARLAND

APPELLANT COUNTY CIRCUIT COURT

[CR99-502-I]

V. HON. JOHN HOMER WRIGHT, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Mark Engebretson pleaded guilty to raping his adopted daughter and was sentenced by a jury to serve forty years in prison. He argues that the trial court erred during the sentencing phase erred in failing to strike information regarding the child's sexual history and in admitting irrelevant evidence. We find no error and affirm.

Appellant does not challenge the sufficiency of the evidence, so only a brief recitation of facts is necessary. The State alleged that appellant raped his adopted daughter, D.E., from the time she was seven years old until she was fifteen years old. Appellant pled guilty to the charge, admitting that he engaged in sexual relations with her between January 1, 1996, and March 14, 1998, when she was between twelve to fourteen years old and at a time when hewas over twenty-one.1 Appellant was sentenced by a jury to forty years in prison. He asserts only sentencing error on appeal. A defendant may allege sentencing error where he pleads guilty. See, e.g., Marshall v. State, 342 Ark. 172, 27 S.W.3d 392 (2000).

I. Evidence Regarding the Victim's Sexual History

During sentencing, appellant testified that he began having a sexual relationship with D.E. when she was twelve, after he learned that she was sexually involved with her boyfriend. The State objected that this testimony was inadmissible under the Rape Shield Statute and requested that the remark be stricken from the record. Appellant's counsel argued that the State opened the door by the questions it asked during cross-examination. The following exchange then occurred:

Court: He can testify as to his contact with her, or lack of, but he can't testify what she told him that there was sexual contact with somebody else [because that] is prohibited by the Rape Shield.

Appellant's

Counsel: I understand that, but my objection is that they went past the time the information alleged, and so, I've go to at least be allowed to ask questions about that.

Court: Well, you can ask questions about it. He can't testify in violation of the Rape Shield. But, I mean, you can go into the time frame.

Appellant's

Counsel: Good.

Court: But you might need to have a word with him and advise him that he needs to stick . . .

Appellant's

Counsel: Can we take a recess and I'll do that?

Court: I think you can do it right here.

Appellant's

Counsel: That will be kind of difficult for the jury.

State: Well, we'll withdraw the objection.

Court: Okay.

In its closing argument, the State reasserted its contention that the abuse began when D.E. was seven. In his closing statement, appellant's counsel referred at length to D.E.'s assertion that the abuse began when she was seven, and reiterated appellant's assertion that it did not start until she was twelve.

During the State's closing rebuttal, the prosecutor commented on appellant's previous allusion to D.E.'s relationship with her boyfriend, stating, "he had the audacity to make that suggestion about a sexual relationship that we don't know whether or not she had." Appellant immediately requested to approach the bench, whereby the following colloquy occurred:

Appellant's

Counsel: The Court's already ruled on that. Now he's commented on that.

Prosecutor: We withdrew our objection, Your Honor.

Appellant's

Counsel: Tell him just not to go forward.

Court: I don't want you arguing anything under the Rape Shield, though.

Appellant's

Counsel: Thank you, Your Honor.

The prosecutor made no further mention of appellant's testimony regarding D.E.'s relationship with her boyfriend.

Arkansas's Rape Shield statute, codified at Arkansas Code Annotated section 16-42-101(b)(Repl. 1999), provides that in a prosecution for rape: opinion evidence, reputation evidence, or evidence of specific instances of the victim's prior sexual conduct with the defendant or any other person, evidence of a victim's prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.

(Emphasis added.)

Appellant argues for the first time on appeal that Arkansas's Rape Shield statute violates his Fifth Amendment due process rights because it requires different rules for the State and an accused, "thereby preventing evidence of truth and relevance." He maintains that the statute allowed the State to introduce evidence regarding the victim's sexual background, but prevents an accused from introducing that same evidence.

However, appellant did not raise his constitutional argument to the trial court, and we do not address arguments raised for the first time on appeal, even constitutional arguments. See Woods v. State, 342 Ark. 89, 27 S.W.3d 367 (2000). Further, it is well-settled that an appellant is limited by the nature and scope of his objections and arguments presented at trial. See, e.g., Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). Therefore, we areprecluded from addressing this argument on appeal.2

Appellant also maintains that the trial court erred in not striking his statement regarding the victim's relationship with her boyfriend from the record. We find no error because appellant "opened the door" for the prosecution to refer to the statement when he attempted to admit his testimony regarding when the relationship began. When appellant first made the statement regarding the victim's alleged relationship with her boyfriend, the State objected and asked that the statement be stricken. The trial court made a ruling sustaining the objection when it stated that appellant could testify with regard to the time frame of the relationship but that he could not testify to matters prohibited under the Rape Shield law. However, the State thereafter withdrew its objection, and appellant's statement was not stricken.

When an objection is withdrawn, it is as if no objection was made. See Upton v. State, 68 Ark. App. 84, 4 S.W.3d 510 (1999)(affirming where defendant withdrew his objection after the court's ruling). Therefore, when appellant introduced the evidence regarding D.E's alleged sexual relationship with her boyfriend, he opened the door for the prosecution to refer to the remark in its closing. By opening the door, that which might have been impermissible becomes permissible. See McFadden v. State, 290 Ark. 177, 717S.W.2d 812 (1986). Moreover, when a defendant introduces inadmissible evidence, he cannot thereafter assert error in that regard on appeal. See King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998).

Further, appellant did not actually request that his statement be stricken and it appears that appellant obtained the relief for which he asked. During closing, when the State referred to appellant's statement, appellant objected, but did not ask that the statement be stricken. Instead, his counsel stated, "Tell him just not to go forward." The trial court responded that it did not want anything argued in violation of the Rape Shield Statute, and appellant's counsel thanked the court. The prosecutor made no further mention of appellant's testimony regarding D.E.'s relationship with her boyfriend. Thus, appellant did not request that his statement be stricken, and because the State subsequently withdrew its objection, appellant's statement remained part of the record. Thereafter, when the State referred to the statement in its rebuttal closing, appellant neither requested that the statement be stricken, nor did he request a mistrial. He merely requested that no further mention of the statement be made, and the State complied by not raising the issue again.

Error may not be predicated upon a ruling admitting or excluding evidence where the defendant makes no motion to strike. See Ark. R. Evid. 103(a)(1). Here, appellant made no motion to strike and he received all of the relief that he requested. Consequently, he cannot now ask for additional relief. See Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). Therefore, we hold that the trial court did not err in failing to strike appellant's statement from the record.

II. Relevancy

Appellant's second argument is that the trial court erred in admitting irrelevant evidence during the sentencing phase. Appellant called his employer, Robert McNanna, as a character witness in his defense. McNanna testified on direct examination that appellant had told him "the truth" regarding his sexual relationship with D.E. During the State's cross-examination of McNanna, the following exchange occurred:

Prosecutor: You stated on direct examination to [appellant's counsel] that the defendant had told you the truth about what had taken place?

McNanna: Yes, sir.

Prosecutor: Okay. Did he tell you that he had sexual contact with D.E. from the age [of] seven until age fifteen?

McNanna: Pretty much so. I mean, we didn't discuss the dates and times and stuff like that . . . but pretty much.

Prosecutor: He acknowledged that he had a . . . sexual relationship with her as early as the age of seven?

McNanna: No, sir. We didn't discuss any age . . . or dates or times and stuff like that.

Prosecutor: So really you're not - I mean only the victim in this case and the defendant would know everything that had taken place?

At this point, appellant objected that the prosecutor's statement was irrelevant. The court overruled the objection and the prosecutor rephrased the question, stating, "[w]hen he say[s] he told you the truth, you believed what he told you. But if there was additional stuff that had taken place, you would have no way of knowing that." McManna replied, "Yes, sir."

Appellant argues that the prosecutor's statement that the question "only the victim in this case and the defendant would know everything that had taken place" exceeded the scope of direct exam, was not relevant to his sentencing, and was prejudicial because it was onlyintended to "draw out the details of the intimate nature" of his relationship with D.E. by showing that they are the only two people who know the exact details.

Appellant's argument is not persuasive. Although not cited by either party, Arkansas Code Annotated section 16-97-103(4)-(6) (Supp. 1999) provides that in the sentencing phase of the trial, evidence relevant to sentencing may include evidence of aggravating circumstances and relevant character evidence. We will not reverse a trial court's finding with regard to the relevancy of evidence under this statute absent an abuse of discretion. See, 73 Ark. App. 237 e.g., Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999).

With the above line of questioning, the State attempted to establish that the sexual abuse of D.E. began when she was seven and lasted until she was age fifteen. Appellant disputed this, but admitted that he sexually abused her from age twelve to age fourteen. Arkansas Code Annotated section 16-90-804(d)(2)(B) (Supp. 1999) provides that the age and vulnerability of the victim are aggravating circumstances. In addition, section 16-90-804 (d)(2)(F) provides it is an aggravating factor if the offense was a sexual offense and was part of a pattern of criminal behavior with the same victim under eighteen manifested by multiple incidents over a prolonged period of time. Therefore, the length of the relationship was also relevant.

Further, the State's questions did not exceed the scope of direct examination and were relevant to determine precisely what McManna meant when he asserted that appellant had told him "the truth," and as the State asserts, the questions were also intended as a challenge to the credibility of McNanna's statement that appellant had told him "the truth." Matters affecting the credibility of a witness are always relevant. See Fowler v. State, 339 Ark. 207,5 S.W.3d 10 (1999).

Based on the foregoing authorities, we affirm appellant's conviction.

Affirmed.

Robbins and Crabtree, JJ., agree.

1 The State originally alleged that appellant engaged in this behavior from January 1, 1996 until September 15, 1999. However, at trial, appellant's counsel noted that the victim turned fourteen in March 1998. Therefore, the State orally amended the charges at trial to reflect this date, since it alleged that the abuse occurred when she was under fourteen.

2 However, it is worth noting that contrary to appellant's assertion, the Rape Shield Statute provides a method for a defendant to petition the trial court to admit evidence that is normally inadmissable under subsection (b). Moreover, our supreme court has held that this section does not deny equal protection of the law by restricting the defendant's freedom to introduce evidence without placing a similar restriction upon the prosecution. See Dorn v. State, 267 Ark. 365, 590 S.W.2d 297 (1979); Burrow v. State, 301 Ark. 222, 783 S.W.2d 52 (1990).