ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

GREGORY DEON SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1316

OCTOBER 31, 2001

APPEAL FROM THE DESHA COUNTY CIRCUIT COURT

[NO. CR 99-81-2]

HONORABLE SAMUEL B. POPE,

CIRCUIT JUDGE

AFFIRMED

The appellant, Gregory Smith, was convicted by a jury sitting in Desha County Circuit Court of robbery, two counts of aggravated robbery, and three counts of misdemeanor theft of property. Appellant was sentenced to an aggregate term of eighteen years in the Arkansas Department of Correction. For his sole point on appeal, appellant argues that the trial court erred by refusing to sequester the victims from a pre-trial suppression hearing and from trial after he invoked Arkansas Rule of Evidence 615. We find no error, and affirm.

Appellant was convicted in connection with robberies of three businesses in Dumas in early September 1999. The first incident occurred on September 5, 1999, when the appellant entered the 65 One-Stop, threatened Rebecca Bradshaw with a knife, and took approximately $275. The second incident occurred on September 7, 1999, when the

appellant struggled with Charlotte Henry of the Regency Inn and took approximately $300. The last incident occurred on September 8, 1999, at the Discount Plus department store. On that date, appellant used a knife to threaten Angela Beckton and Norma Medrano and took approximately $300. On appeal, appellant does not challenge the sufficiency of the evidence; instead he argues that the victims should not have been allowed to remain in the courtroom after he invoked "The Rule." We note that Arkansas Rule of Evidence 615 is commonly known as "The Rule."

Arkansas Rules of Evidence 615 states in pertinent part: "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion." It is undisputed that appellant attempted to invoke Rule 615 so as to not allow the victims to be in the courtroom before their testimony. However, the trial court, pursuant to Ark. R. Evid. 616, denied appellant's request and overruled his objection. Rule 616 states:

Notwithstanding any provision to the contrary, in any criminal prosecution, the victim of a crime, and in the event that the victim of a crime is a minor child under eighteen (18) years of age, that minor victim's parents, guardian, custodian or other person with custody of the alleged minor victim shall have the right to be present during any hearing, deposition, or trial of the offense.

Appellant argues that Rule 616 contributes nothing to the judicial process, and that the impact of Rule 616 can taint a criminal defendant's trial by swayed testimony. Appellant points out that the victims were privy to the testimony of the lead detective, Officer Michael Donigan, of the Dumas Police Department, as well as the testimony of the other victims. Appellant argues that this tainted the victims' testimony.

As our supreme court stated in Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986), Rule 616 was added to the Rules of Evidence by Act 462 of 1985, and was adopted in that opinion. Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996). The presence of a victim in the courtroom throughout the trial conceivably could put the fairness of the trial in jeopardy under some circumstances, but that was not the case in Stephens. Nor has Smith succeeded in showing us how fairness was jeopardized at the suppression hearing and at his trial by the presence of the victims. As the State points out, appellant appears to argue that prejudice should be presumed because the taint of the victims' testimony is too subtle to expose. Prejudice is not presumed and we do not reverse absent a showing of prejudice. Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996). Thus, we hold that the court did not err in allowing the victims to attend the suppression hearing and the trial.

Affirmed.

Bird and Griffen, JJ., agree.