DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR01-498

November 14, 2001

CARY WAYNE GRAVES AN APPEAL FROM SALINE

APPELLANT COUNTY CIRCUIT COURT

[CR00-237-2]

V. HON. GARY ARNOLD, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Cary Wayne Graves challenges his convictions following a jury trial of four counts of first-degree sexual abuse and two counts of first-degree violation of a minor. The jury imposed a sentence of a $2,500 fine and recommended an alternative sentence of three years' probation on each count of first-degree sexual abuse. It also imposed a term of five years' imprisonment on each count of violating a minor in the first degree, but recommended a term of five years' probation as an alternative sentence on one of the counts. The trial court accepted the jury's recommended probationary sentence for sexual abuse, but rejected the recommendation regarding probation for violation of a minor. Instead, the trial court sentenced appellant to five years' imprisonment for each count of first-degree violation of a minor, and ordered that the sentences run consecutively. Appellant now contends that the trial court abused its discretion by rejecting the jury's recommended probationary sentence, by ordering the sentences to run consecutively, and by refusing to allow appellant to cross examine the victims regarding prior sexual abuse during the sentencing phase of the trial. We hold that the trial court did not abuse its discretion when it rejected the probationary sentence recommended by the jury. We also hold that the trial court did not abuse its discretion when it ordered appellant's prison sentence on the two counts of first-degree violation of a minor to be served consecutively. Finally, we hold that the trial court properly refused to allow appellant to cross-examine the victims about prior sexual abuse during the sentencing phase of the trial. Thus, we affirm appellant's convictions and sentences.

Appellant was the live-in boyfriend of the mother of two daughters who were the victims in this matter.1 On March 13, 2000, the younger daughter asked to see her school counselor and relayed to the counselor that she had witnessed appellant and her sister, the older daughter, engaging in sexual activity the previous night. The younger girl also told the counselor that appellant had forced her to engage in sexual activity with him as well. Appellant was subsequently arrested and charged with two counts of rape, four counts of sexual abuse in the first degree, and two counts of violation of a minor in the first degree. Following a two-day trial, a jury convicted appellant of four counts of sexual abuse in the first degree and two counts of violation of a minor in the first degree.

During the sentencing phase of the trial, the older daughter testified regarding the impact that appellant's conduct had on her life. After her direct-examination, but beforecross-examination, the following bench conference occurred outside the hearing of the jury:

Appellant's Counsel: I know during the main part of the trial the rape shield applied.2

Prosecuting Attorney: Yes.

The Court: That statute still applies in the sentencing phase.

Appellant's Counsel: That's what I wanted to make sure of.

Prior to closing arguments, the court gave the jury instructions on sentencing.3 Afterdeliberations, the jury recommended alternative sentences of three years' probation and fines of $2,500 on each count of sexual abuse in the first degree. It fixed one count of appellant's sentence for violation of a minor in the first degree at a term of five years' imprisonment. The jury also recommended an alternative sentence of a term of five years' probation. Lastly, it fixed appellant's sentence on the second count for first-degree violation of a minor at a term of five years.

While the court accepted the jury's recommendations regarding appellant's sentence for first-degree sexual abuse and one count of first-degree violation of a minor, the court imposed a term of five years' imprisonment on appellant's second count of first-degree violation of a minor, and ordered the sentences to run consecutively. This appeal followed.

Rejection of Jury's Recommendation of Probation

We review challenges to a trial court's decision regarding alternative sentencing using an abuse of discretion standard. See Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000). Criminal law statutes are strictly construed, with all doubt resolved in favor of the accused. See Slaughter v. State, 69 Ark. App. 65, 12 S.W.3d 240 (2000). However, we also adhere to the first rule of statutory construction, which is to construe a statute as it reads and to givethe words used by the legislature their ordinary and commonly accepted meaning. See Hagar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000).

Arkansas Code Annotated section 5-4-103(a) (Repl. 1997) provides that when "a defendant is charged with a felony and is found guilty of an offense by a jury, the jury shall fix punishment in a separate proceeding as authorized by this chapter."

Section 16-97-101 of the Arkansas Code Annotated (Supp. 1999), which governs bifurcated sentencing procedures, reads as follows:

If the defendant is found guilty of one (1) or more charges, the jury shall then hear additional evidence relevant to sentencing on those charges. Evidence introduced in the guilt phase may be considered, but need not be reintroduced at the sentencing phase.

Following the introduction of additional evidence relevant to sentencing, if any, instruction on the law, and argument, the jury shall again retire and determine a sentence within the statutory range.

The court, in its discretion, may also instruct the jury that counsel may argue as to alternative sentences for which the defendant may qualify. The jury, in its discretion, may make a recommendation as to an alternative sentence. However, this recommendation shall not be binding on the court.

In Dale v. State, 55 Ark. App. 184, 935 S.W.2d 274 (1996), the appellant contended that the trial court erred in refusing to include a jury instruction regarding alternative sentences of probation or a suspended sentence. The Dale court interpreted section 16-97-101(4) as allowing the trial court, in its discretion, to instruct the jury that counsel for the accused may argue for alternative sentences for which the accused may qualify, and allowing the jury, in its discretion, to recommend an alternative sentence. However, the Dale court stressed that the jury's recommendation of an alternative sentence was not binding on the trial court due to the permissive language used in section 16-97-101(4). Seeid.

A similar result occurred in Higgins v. State, 326 Ark. 1030, 936 S.W.2d 740 (1996), when our supreme court interpreted section 16-97-101(4), and held that although a jury may recommend an alternative sentence, the actual assessment of whether to place a convicted felon on probation lies within the sound discretion of the trial court.

When considering whether to place a defendant on probation, Arkansas Code Annotated section 5-4-301(b) (Supp. 1999) lists four factors that the trial court must consider. These factors include: (1) whether there is an undue risk that the defendant will commit another offense during the probationary period; (2) whether the defendant needs correctional treatment that could best be provided by confinement to a correctional facility; (3) whether probation will discount the seriousness of the offense; or (4) whether the defendant is gainfully employed or has the means available such that compensation to the victim will benefit the defendant's rehabilitation. In addition, section 5-4-301(c) lists several factors that, while not controlling in whether the trial court should exercise its discretion, are to be accorded weight in favor of probation. These factors include the fact that the defendant had no previous criminal history and the fact that the defendant had led a law-abiding life for a substantial period of time before committing the offense.

In the present case, appellant urges us to ignore the permissive language used in section 16-97-101(4) and to abandon case law interpreting section 16-97-101(4) as giving the trial court sound discretion to accept or reject a jury's recommendation of alternative sentencing. Although appellant indicated in the informational statement portion of his brief that there was no basis for supreme court jurisdiction, he acknowledged in his jurisdictional statement of his brief that a ruling in his favor would entail our overruling, entirely or in part, several Arkansas Supreme Court cases. However, we lack authority to overrule supreme court decisions. See Huckabee v. State, 30 Ark. App. 82, 785 S.W.2d 223 (1990).

Moreover, appellant's argument that the trial court lacks discretion to reject a jury's recommended alternative sentence once the trial court exercises its discretion by instructing the jury that counsel may argue alternative sentencing, is not an accurate reading of section 16-97-101(4). This subsection is composed of three sentences and uses the word "may" four times. Lest there be any doubt as to the discretion given the trial court, the last sentence of the section reads "however, this [jury] recommendation shall not be binding on the court." While appellant argues that the trial court rejected the jury's recommendation without making specific findings in accordance with the factors enumerated by sections 5-4-301(b) and 5-4-301(c), he points to no authority requiring a trial court to make specific findings as to every factor before accepting or rejecting a jury's recommended alternative sentence. Be that as it may, the record demonstrates that the trial court did consider 5-4-301(b)(3), when it stated that it had "no doubt that the defendant engaged in sexual activity with the victims at ages 11 and 14 and that the girls were probably more vulnerable to sexual abuse than other children may have been at their age." The court also noted, "the defendant is well thought of by his friends, family, and acquaintances[.]" This statement indicates that the trial court considered section 5-4-301(c)(7), the fact that appellant led a law abiding life prior to the commission of the offense.

Section 16-97-101(4) plainly states that the trial court (1) has discretion to instruct thejury that counsel for an accused may argue for alternative sentences, and (2) has discretion to accept or reject the jury's recommendation. In view of the record before us, we hold that the trial court's rejection of the alternative sentence recommended by the jury did not constitute an abuse of discretion.

Imposition of Consecutive Sentences

Arkansas Code Annotated section 5-4-403 (Repl. 1997) provides in part that "when multiple sentences of imprisonment are imposed on a defendant convicted of more than one (1) offense, . . . the sentences shall run concurrently unless the court orders the sentences to run consecutively." A trial court is given sound discretion to determine whether multiple sentences should be served concurrently or consecutively, and we will not disturb a trial court's decision on appeal unless there is a demonstration that the trial court clearly abused its discretion. See Kellogg v. State, 37 Ark. App. 162, 827 S.W.2d 166 (1992).

In Kellogg, supra, the court held that a trial court should make it clear that the court is exercising its own discretion, and not that of the jury's when making the decision of whether multiple sentences are to be served concurrently or consecutively. The Kellogg court concluded that the judge's statement deeming it appropriate that the appellant serve consecutive sentences indicated that the trial judge properly exercised his own discretion. See Kellogg, supra.

Our court recently reviewed the issue of consecutive versus concurrent sentences in Blagg v. State, 72 Ark. App. 32, 31 S.W.3d 872 (2000). The appellant in Blagg argued that the trial court erred by relying on the jury's recommendation rather than by exercising itsown discretion. After citing section 5-4-403, we noted that appellate courts will not presume that a trial court failed to exercise its discretion. Given the fact that the trial court stated for the record that it would make the ultimate decision, we held that the trial court did not abuse its discretion in sentencing the appellant to serve consecutive sentences. See Blagg, supra.

In the present case, appellant concedes that the decision to impose concurrent versus consecutive sentences lies within the trial court's discretion. He further concedes that a trial court abuses its discretion when it accepts the jury's intent rather than exercising its own discretion pursuant to Wing v. State, 296 Ark. 494, 696 S.W.2d 311 (1985), Patton v. State, 281 Ark. 36, 660 S.W.2d 939 (1983), Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980), and Hinton v. State, 260 Ark. 42, 537 S.W.2d 800 (1976). However, appellant urges us to revisit this issue, and to hold that a trial court abuses its discretion when it rejects a jury's expressed intent. To accept appellant's argument would require us to overrule supreme court case law that requires a trial court to exercise its own discretion prior to imposing a concurrent or consecutive sentence. Again, we lack authority to grant appellant's request.

Even if we were to consider appellant's argument, the record does not support his contention that the trial court failed to consider the jury's recommendation. Instead, the record indicates that after the trial court announced its decision to impose the multiple sentences consecutively, appellant moved for the court to reconsider. The court declined to do so, stating as follows: "the sentence imposed by the court, in light of all the other testimony and the proof and the jury recommendations, is appropriate and will stand as Iindicated. The court reaffirms that the probationary periods on counts 3-6 will run concurrently." (emphasis added). Because the record demonstrates that the court considered the jury's recommendation prior to exercising its own discretion, we hold that the trial court did not err in sentencing appellant to serve consecutive sentences.

Cross-Examination of Victims Regarding Past Sexual Abuse During Sentencing Phase

Lastly, appellant argues that the trial court erred by refusing to permit him to cross examine the minor victims about previous instances in which another person allegedly sexually abused them. In response, the State argues that appellant did not preserve his argument on appeal because appellant did not file a pre-trial motion to admit the evidence and did not proffer the testimony he claimed was improperly excluded. Alternatively, the State argues that the evidence was explicitly barred by the rape-shield statute.

The rape shield statute, which is defined in Arkansas Code Annotated section 16-42-101(c) (Repl. 1999) provides that:

[E]vidence directly pertaining to the act upon which the prosecution is based or evidence of the victim's prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of the evidence is determined in the following manner:

A written motion shall be filed by the defendant with the court at any time prior to the time the defense rests stating that the defendant has an offer of relevant evidence prohibited by subsection (b) of this section and the purpose for which the evidence is believed relevant;

(A) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the court may for good cause permit.

(B) A written record shall be made of the in camera hearing and shall be furnished to the [appellate] court on appeal.

If, following the hearing, the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs itsinflammatory or prejudicial nature, the court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence.

Essentially, the rape-shield statute serves to limit evidence of a victim's past sexual conduct to prevent the victim from needless humiliation. See Terrell v. State, 26 Ark. App. 8, 759 S.W.2d 46 (1988). The statute is not a complete bar to evidence regarding a victim's sexual conduct; however, it makes the admissibility of the evidence solely within the trial court's discretion when the appellant follows the procedure outlined in section 16-42-101. See Hill v. State, 74 Ark. App. 28, 45 S.W.3d 406 (2001). Trial courts are given discretion in ruling on the relevancy of a victim's prior sexual conduct, and we will not reverse the trial court unless we determine that the ruling was clearly erroneous. See Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).

Rule 103(a)(2) of the Arkansas Rules of Evidence (2001) provides that:

[an] error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . in case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

In Gaines, supra, the appellant filed a written motion with the court pursuant to the rape shield law. However, he failed to proffer what the testimony would have been in order for the court to determine relevancy. As a result, our supreme court declined to address the issue of whether the evidence was admissible. See Gaines, supra.

Here, the record demonstrates that appellant failed to file a written motion with the trial court stating what he planned to offer as relevant evidence and the purpose for whichthe evidence was relevant. Nor did appellant proffer the testimony he sought to introduce. Instead, at trial, appellant asked the court whether he would be permitted to ask the victim anything at all about her relationship with her boyfriend. When the court told appellant he had to abide by the rape shield statute, appellant replied "okay." Again, during the sentencing phase of the trial, appellant made the following comment during a bench conference: "I know that during the main part of the trial, the rape shield applied." When the court responded that the statute still applied in the sentencing phase, appellant responded, "that's what I wanted to make sure of." Appellant never proffered the evidence that he sought to have admitted, and failed to inform the court that he wanted to offer testimony that the victims were previously abused by a family member to impeach their testimony regarding the impact of his conduct upon their lives. This failure precludes our consideration of appellant's argument on appeal.

Even if we were to consider appellant's argument, it would fail. Essentially, appellant requests that we conclude that the trial court erred by refusing to allow him to impeach the victims' testimony regarding the effect that his illegal conduct had on their lives by introducing evidence that another person had also sexually abused them. To adopt appellant's argument would be tantamount to accepting the untenable proposition that the rape shield statute should operate in favor of an accused when the victim has suffered prior incidents of sexual abuse. We have no basis for concluding that the legislature intended the rape shield statute to operate this way.

Affirmed.

Stroud, C.J., and Pittman, J., agree.

1 At the time of trial, the older daughter was fifteen years of age and the younger daughter was eleven. The acts that are the basis of this appeal occurred when the older daughter was thirteen or fourteen years of age, and the younger daughter was nine or ten.

2 The rape shield statute issue arose during the direct examination of SHS at trial when the following conference occurred outside the presence of the jury:

Appellant's Counsel: Am I going to be permitted to delve into her prior sexual experiences?

The Court: No.

Appellant's Counsel: Because [the Deputy Prosecutor] just asked her all about her sex with her boyfriend and how often she had it-

The Court: [The Deputy Prosecutor] had to do that - well, she did that so she could explain why she was using birth control pills. And, unless you can show me the relevancy and why you should be permitted to go around the rape shield statute beyond that, I certainly don't consider that giving you free reign to delve into her sex life. I don't understand the relevance.

Appellant's Counsel: Well, I don't necessarily intend to delve into her entire sex life. I mean, that wasn't my point but am I going to be permitted to ask her anything about her relationship with her boyfriend at all?

The Court: You have to abide by the rape shield statute.

Appellant's Counsel: Okay.

3 The relevant portions of the instructions follow:

Cary Wayne Graves has been found guilty of sexual abuse in the first degree. Sexual abuse in the first degree is punishable by imprisonment in the Department of Correction for not less than three years and not more than 10 years or by a fine not exceeding $10,000 or both imprisonment and a fine.

Cary Wayne Graves has been found guilty of violation of a minor in the first degree. Violation of a minor in the first degree is punishable by imprisonment in the Department of Correction for not less than three years and not more than 10 years or by a fine not exceeding $10,000 or both imprisonment and a fine.

Cary Wayne Graves may also contend that he should receive an alternative sentence. You may recommend that he receive an alternative sentence but you are advised that your recommendations will not be binding on the Court.