ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION III

JOSEPH WAYNE EADS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-984

January 23, 2002

AN APPEAL FROM CRAWFORD COUNTY CIRCUIT COURT

CR99-95

HONORABLE GARY R. COTTRELL,

CIRCUIT JUDGE

AFFIRMED

ANDREE LAYTON ROAF, Judge

While on patrol looking for illegal dumping, deputies of the Crawford County Sheriff's Office came upon a pickup truck occupied by Joseph Wayne Eads and his minor daughter, who were both in a state of undress. Eads and his daughter were transported to the Sheriff's Office, and after being Mirandized, Eads signed a written statement admitting several incidents of sexual conduct between himself and his minor daughter. Based on his statement and information provided by his daughter, Eads was charged with five counts of incest and was further charged as a habitual offender based upon three prior felony convictions. A jury convicted Eads of all five counts, and he was sentenced to forty years on each count, to be served consecutively, for a total sentence of 200 years in the Arkansas Department of Correction. A no-merit brief and a motion to withdraw as counsel was previously filed with this court; however, this court remanded for rebriefing because counsel failed to abstract and discuss all adverse rulings. See Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001).

On rebriefing, pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Eads's counsel has again filed a motion to withdraw on the grounds that there were no reversible errors in the proceedings. This motion was accompanied by a brief with an adequate abstract that demonstrated that Eads's trial counsel made nineteen objections and a motion for directed verdict. The clerk of the this court furnished Eads with a copy of his counsel's brief and notified him of his right to raise any points that he believed would support a merit appeal. Eads submitted such a document. After review of the entire record, including the points raised by Eads, we agree that an appeal would be without merit; consequently, we affirm and grant counsel's motion to withdraw.

Adverse Rulings

The appellate court is required, based upon double jeopardy considerations, to consider a challenge to the sufficiency of the evidence before other points are raised. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). On appellate review, this court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001). When this court reviews a challenge to the sufficiency of the evidence, the court will affirm the conviction if there is any substantial evidence to support it, viewing the evidence in the light most favorable to the State. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Stephenson v. State, 334 Ark. 520, 975 S.W.2d 830 (1998).

Eads's counsel made a motion for directed verdict in which he claimed that the State had failed to prove that any deviate sexual activity or sexual intercourse occurred on February 28, 1999, and that the State failed to prove with any specificity that any of the events alleged in the other fourcounts of incest occurred. However, the victim, Eads's daughter, testified as to the events on February 28, 1999, claiming that Eads had removed her pants and that he penetrated her digitally and stated that he wished to have sexual intercourse. She also testified about numerous other incidents of sexual intercourse and sexual conduct between herself and Eads. The victim, who was fourteen at the time of Eads's arrest and fifteen at the time of the trial, stated that Eads forced her to have intercourse three or four times every week since she had turned twelve. She also stated that Eads made her perform oral sex upon him every day or at least every chance he got. In his statement to Deputy Deason, Eads admitted that on February 28, 1999, the victim performed oral sex upon him. Eads further stated that he had sexual intercourse with his daughter three or four times in the past. Viewing the evidence in the light most favorable to the State, there is substantial evidence to sustain the convictions on the five counts of incest.

The first adverse ruling abstracted and discussed by Eads's counsel relates to a disagreement over whether or not Eads had accepted a plea offer. Eads indicated that he wanted to accept a plea offer from the State; however the State claimed that the offer was extended and Eads rejected it. The trial court failed to intervene, and the record contains no further details as to whether or not Eads had accepted or declined the plea offer. The supreme court has held that until a trial court accepts a plea bargain, it has no binding effect. See Ark. R. Crim. P. 25.3 (2001); Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). Here, there is no evidence in the record that indicates that Eads accepted a plea offer or that he ever informed the trial court that he had accepted a plea offer. See Pyle, supra. As such, this court cannot say that the trial court erred in failing to intervene and determine whether the plea agreement was accepted or rejected.

The second adverse ruling abstracted and discussed by Eads's counsel relates to a motion to dismiss made prior to trial alleging that incest was a continuing course of conduct and would onlysubstantiate one count of incest in this case. Arkansas Code Annotated § 5-26-202(a)(1) (Repl. 1997) states that a person commits incest if, being sixteen years of age or older, he has sexual intercourse or engages in deviate sexual activity with a person he knows to be an ancestor or descendent. In Fletcher v. State, this court stated that "one commits the crime of incest each time he engages in sexual intercourse." 53 Ark. App. 135, 138, 920 S.W.2d 42 (1996). This court further stated that there is no provision in the incest statute that prevents a person from being prosecuted more than once and that by analogy, since rape is not a continuing offense but rather a single crime, the same rule applies to incest. See Ricks v. State, 327 Ark. 513, 940 S.W.2d 422 (1997) (stating rape is not a continuing offense if there are successive impulses, even though all the impulses may unite in a common course of action, where there were multiple penetrations of the victim over a two-hour period). As such, the trial court did not err in failing to grant the motion to dismiss because incest is not a continuing course of conduct, and Eads could be charged and convicted with multiple counts of incest.

Eads's counsel next addressed the denial of the motion to suppress Eads's statement made to law enforcement officers admitting to sexual intercourse and deviate sexual activity with his daughter. The evidence presented at the Denno hearing was that Deputy Deason Mirandized Eads and that he then signed a written waiver acknowledging a waiver of his rights. After being Mirandized, Eads then made the statement admitting to inappropriate sexual activity with his daughter. The trial court found that Eads had voluntarily and knowingly made a waiver of his rights. If, following an independent determination based on the totality of circumstances, we conclude that a denial of a suppression motion was not clearly against the preponderance of the evidence, then we will affirm. Goodman v. State, 74 Ark. App. 1, 45 S.W.3d 399 (2001). Therefore, based upon the testimony offered by Deputy Deason and corroborated by Deputy Blount, it cannot be said that the trial court erred in finding a knowing and intelligent waiver of rights by Eads when he gave his signed statement.

Eads's counsel discusses the partial denial of a motion in limine to prohibit the State from bringing forth evidence of any conduct prior to August 7, 1996, the time frame charged in the information. In Hernandez v. State, the supreme court noted that the pedophile exception to Ark. R. Evid. 404(b), which governs the admission or rejection of evidence of other crimes, wrongs, or acts, allows evidence of similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person with whom the defendant has had an intimate relationship. 331 Ark. 301, 962 S.W.2d 756 (1998). The supreme court stated that "such evidence helps to prove the depraved sexual instinct of the accused." Id. at 307. In the present case, the victim testified to numerous incidents of sexual intercourse and deviate sexual activity between August 7, 1996, and February 28, 1999. The victim further testified that the sexual activity "started happening when [she] was about six and a half" which would have been prior to August 7, 1996; however, based on the pedophile exception to Ark. R. Evid. 404(b), this evidence is permissible, and the trial court did not err in allowing such evidence.

The fifth adverse ruling abstracted and discussed by Eads's counsel related to a hearsay objection that was made when one of the investigating officers, Deputy Gray, testified that when he arrived at the scene he asked the victim for her name and her relationship to Eads. The trial court overruled the hearsay objection. The statements of the victim given to the officer fall within the statement of personal or family history exception to hearsay. Ark. R. Evid. 804(b)(4)(i). Additionally, such evidence was elicited during the trial itself. Since the decision to admit or refuse evidence is within the trial court's discretion and there was not a showing of an abuse of that discretion or a showing of prejudice, the trial court's ruling will not be reversed upon appeal. See Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001).

The next adverse ruling dealt with an objection based upon speculation in which Eads's counsel asked Deputy Mentink if he thought that if two people were in a secluded place and a police car pulled up whether they would be surprised. The trial court sustained the State's objection. Thequestion called for speculation; however, Deputy Mentink responded by stating that the only alarm that the victim showed was when she was replacing her clothing. Consequently, absent an abuse of discretion or a showing of prejudice, the trial court's ruling as to admission or rejection of evidence will not be reversed. See Madden, supra.

While Deputy Deason was testifying with regard to Eads's statement, Eads's counsel objected to the introduction of the statement and to Deputy Deason's testimony with regard to the content of the statement. The trial court overruled the objection. Since Deputy Deason conducted the interview with Eads and was present when the statement was made, he was testifying based upon his personal knowledge of the events in question. Moreover, the statement was previously deemed voluntary and was properly admitted into evidence.

The eighth adverse ruling abstracted and discussed by Eads's counsel relates to statements made by the victim while she was testifying. The victim stated that she never told her mother or the police about the sexual conduct and intercourse prior to the incident which resulted in Eads's arrest because she feared that Eads would harm her or her mother. Eads's counsel objected to the statements and requested a mistrial because the trial court had earlier ruled that conduct against the victim's mother would not be admissible; however, the trial court overruled the objection and denied the motion for mistrial. The trial court stated that it did not believe it had limited any testimony with regard to personal statements between the victim and Eads, such as threats. The testimony offered by the victim was outside the scope of the limitation set by the trial court. Additionally, the statement is relevant and admissible in its own right because it explains why the victim failed to report the earlier conduct, for which Eads was also charged, to the police or her own mother. Because the trial court is granted wide discretion in granting or denying a motion for mistrial and absent an abuse of discretion or a showing of prejudice, the trial court's ruling will not be disturbed on appeal. See Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001).

Eads's counsel then addressed an objection by the State when the victim was being cross-examined by the defense. Eads's counsel was attempting to impeach the victim; however, he was attempting to use a statement that was not the victim's own but rather a statement made by one of the law enforcement officers summarizing the victim's statements. Since the statement was not the victim's, it could not be used to impeach her on the stand, and thus, the trial court properly admonished the jury and compelled defense counsel to rephrase. See Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998) (stating that generally an admonition to the jury will cure a prejudicial statement unless it is so "patently offensive" that justice could not be served by continuing the trial). Eads's counsel next made an objection when the State was questioning the victim. Eads's counsel objected to the State's question as leading, and the trial court overruled the objection. The State asked the victim, "so, you mean by middle [of the sexual activity], not necessarily his penis was inside you?" The trial court properly overruled Eads's objection because the question was asked to clarify testimony that was previously elicited from the victim, and thus, was not an improper leading question.

The next adverse ruling occurred when Eads was testifying on his own behalf and his counsel asked if there were events in his life while he was in jail that convinced him that his acts were wrong. The State objected to the question claiming that it was sentencing testimony and was not proper during the current phase of the trial. Although the trial court sustained the objection because the question did not address Eads's innocence or guilt but rather was proper for sentencing purposes, Eads has failed to provide any evidence that the trial court abused its discretion or that he was prejudiced by the trial court's ruling. See Madden, supra.

The next two adverse rulings dealt with objections made by the State that were sustained by the trial court. Eads's counsel asked Eads whether or not the victim's statement as to her giving him oral sex every day was true, and the State objected, stating that the question had been asked and answered. The State also objected when Eads's counsel stated, "Now, Joe, you understand that the issue, we're facing today, is not whether it was consensual..., but we're talking about if thisrelationship did occur...and how many times...you've had an opportunity, you know, having been in jail for eleven months to think about this...." The State objected to the form of the question. The trial court sustained both objections on the grounds of the questions being leading and moving into the very leading category, respectively. Eads's counsel offered to rephrase the question, and since the trial court is granted wide discretion in admitting or refusing evidence and since there was no showing of an abuse of discretion or prejudice, the trial court's ruling will be upheld. See Madden, supra.

Eads's counsel objected when the State asked Eads about the number of occurrences of sexual intercourse or activity. Eads's counsel objected that the question had been asked and answered, but the trial court overruled the objection. Because Eads was charged with five counts of incest, it was not improper for the State to attempt to elicit testimony from Eads as to the number of occurrences of sexual intercourse or conduct. Eads testified that "there could have been one or two as opposed to three or four occasions [of sexual intercourse]." However, in further testimony, Eads stated that "[i]t could have been more than three or four times." Due to Eads inconsistent statements as to the relevant number of occurrences of sexual activity or conduct and the State's burden of proving five counts of incest, we cannot say that the trial court erred in overruling Eads's objection.

The next adverse ruling related to Eads's objection to the State's use of a rebuttal witness, Michael Eads, who had not been previously identified to Eads's counsel as a potential witness. The trial court overruled the objection. The Arkansas Rules of Criminal Procedure do not require that the State disclose rebuttal witnesses. See Ark. R. Crim. P. 17.1. In addition, the testimony offered by Michael Eads was neither critical to the case nor prejudicial to Eads, and thus, the trial court's ruling will be upheld on appeal.

At the close of all the evidence, Eads's counsel renewed his motions for directed verdict, mistrial, and suppression. However, the trial court overruled all the motions. Since there issubstantial evidence to support Eads's convictions and there was no showing of prejudice or an abuse of discretion with regard to the other rulings, the trial court's rulings on these motions will not be reversed on appeal.

During the State's closing argument, Eads's counsel objected when the prosecutor stated that "every child should expect that their father is there to love them...not to abuse them, not to rape them, not to sexually abuse, not have incest with them." Eads's counsel objected stating that rape was not a charge in the present trial, and as such, he requested a mistrial. The trial court admonished to the jury that the only thing they should consider in this case is incest and that there was no association with any other crime. Generally, an admonition to the jury cures a prejudicial statement unless it is so "patently offensive" that justice could not be served by continuing the trial. Williams, supra; Kemp, supra. Since the statement was not so patently offensive that justice could not be served by continuing the trial, the trial court will not be reversed. Moreover, the trial court has wide discretion in granting or denying a motion for mistrial and absent an abuse of that discretion, the trial court's decision will not be disturbed on appeal. Williams, supra; Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).

While the State continued its closing argument, Eads's counsel again made an objection stating that it did not feel that the State's argument that "not once, did [defense counsel] ever say, you contradicted yourself in your testimony today and what you put on that statement" was a proper statement, claiming that the State was saying what he did or did not do. The trial court overruled the objection stating that it believed that the jury should determine the issue of whether or not Eads's counsel had impeached the victim's testimony or not. It is the province of the jury to determine the credibility of witnesses, and thus, the trial court did not err in concluding that the jury could indeed consider whether or not the victim had been impeached. See Chrobak v. State, 75 Ark. App. 281, 58 S.W.3d 387 (2001).

During the defense's closing argument, the State objected to statements made by Eads'scounsel. Eads's counsel stated, "The State told you when they started this case they were going to prove beyond a reasonable doubt four instances of incestuous behavior...[t]hey have not done so. Because in order to prove it, you have to prove specifics of the case; you have to prove dates." The State objected stating that the statement was an incorrect statement of the law. The trial court sustained the objection because the State was not required to prove with specificity the dates but merely that the counts occurred between August 1996 and February 1999. Because there was sufficient evidence presented by the testimony of the victim and by Eads, the trial court did not err in sustaining the State's objection as to their burden of proof.

The last adverse ruling related to the defense's statement during closing that "when you retire to the jury room...what you'll do is consider this Class-A felony...you might think, well, if we don't convict him on all five counts, maybe he's going to get some light sentence...." The State objected to the statement claiming that Eads's counsel was not supposed to talk about the sentencing phase of the case during the current part of the case. The trial court sustained the objection after Eads's counsel agreed to rephrase the question, and as such, there was no error or prejudice associated with the ruling.

Points for Reversal

Since Eads has chosen to file a list of points that he believes to provide possible grounds for reversal, this court must review the record with regard to the points raised by Eads. In his filing, Eads has set forth fourteen points for reversal which are addressed in the remainder of this opinion. Eads first claims that he was denied an attorney when he was arrested and was told by the law enforcement officers that he could have an attorney after they were through with him. Since it was determined that Eads gave a voluntary and intelligent waiver of his rights when he was Mirandized, there is no merit to this argument because he effectively waived his right to have counsel present when he was giving his statement. Eads also claims that his attorney never sought his rendition of the events precipitating the arrest, that his counsel presented an antagonistic voirdire, alienating the jury pool, that the State was allowed to make prejudical statements without objection, and that his counsel failed to cross-examine prosecution witnesses. Although there may be merit to these arguments, they are not arguments properly before this court and would be better addressed by Rule 37 relief rather than on appeal to this court. A petitioner may qualify for Rule 37 relief if he demonstrates error so fundamental to render the judgment of conviction of void and subject to collateral attack. Cothren v. State, 344 Ark. 697, 42 S.W.3d 543 (2001).

Eads further contends that there was no positive chain of custody for the physical evidence used at trial, that he was denied a bifurcated trial as a habitual offender, and that one of the jurors was a friend of the victim's family. A party is bound on appeal by the scope and nature of the objections and arguments presented to the trial court. Holland v. State, 71 Ark. App. 84, 27 S.W.3d 753 (2000). The appellate court will not consider arguments on appeal in the absence of a specific contemporaneous objection at trial, and as such, each of these grounds are not preserved for review by this court. See Ramaker, supra.

Eads further contends that he was denied a fair trial, due process, and equal protection of the law because of the enhancement portion of the habitual offender statute. Specifically, he argues that the copy of the judgment of his prior conviction merely shows that he entered a plea to three offenses (possession of cocaine, possession of marijuana with the intent to deliver, and possession of drug paraphernalia) and that the three charges were contained in one information such that the single information was the product of a single crime rather than three separate prior felony convictions. However, Eads also did not raise the argument to the trial court. Moreover, Ark. Code Ann. § 5-4-501 (Repl. 1997) provides that a defendant who has previously been convicted of more than than one but less than four felonies may be sentenced to an extended sentence. Here, Eads had been convicted of three felony counts, and he was thus sentenced under the same habitual category that would apply if he had had only one conviction; therefore, this point is based upon an argument that misconstrues the habitual-offender provisions.

Eads next argues that he was denied a fair trial and due process of law because he was placed in double jeopardy by being tried and convicted for multiple crimes resulting from a single course of conduct, and that the trial judge abused his discretion in denying his motion to dismiss. Because this court held in Fletcher, supra, that incest was not a continuous course of conduct, as noted earlier in the portion of this opinion devoted to the discussion of adverse rulings, this point does not provide a basis for a merit appeal.

During the State's closing arguments, Eads contends that improper statements were made to the jury in the penalty phase of the trial such that he was prejudiced. However, no objections were made during the trial to these allegedly "prejudicial" statements. In addition, Eads further contends that he was tried and convicted in the State's opening statement because the prosecutor used closing arguments rather than opening statements, and thus, he claims that he was denied a fair trial. Again, no objection was made as to any comment or argument made by the State during its opening statement. A contemporaneous objection is necessary to preserve the issue for appellate review. Mackey v. State, 329 Ark. 229, 947 S.W.2d 359 (1997). Therefore, this court will not review this issue because it has not been preserved for our review.

Eads also claims that he was denied a fair trial and due process of law because the trial court violated the separation of powers doctrine by allowing the jury to consider when he would be released on parole. One of the jury instructions stated, "[i]n you deliberations on the sentence to be imposed, you may consider the possibility of transfer of [Eads] from the Department of Correction to the Department of Community Punishment...If transfer is granted, he will be released from prison and placed under post-prison supervision." However, no objection was made to the use of the jury instruction. Since Eads did not object to the use of the instruction his objection is deemed waived for failure to make a timely objection. See Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993). As such, this argument is not preserved for review on appeal.

Since the jury made a handwritten notation on each of the five verdict forms stating, "wewould like these to run consecutively," Eads contends that the trial court committed a fundamental error. Essentially, Eads argues that the trial judge allowed the jury to undertake consideration of whether the sentences should run consecutively as opposed to the judge utilizing his own discretion to determine whether the sentences should be served consecutively. The question of whether sentences should run consecutively or concurrently lies solely within the province of the trial court, and the appellant bears the burden of demonstrating that the trial judge failed to exercise his discretion in ordering consecutive sentences. Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997). The fact that the trial court considered the jury's recommendation does not establish that the trial judge failed to exercise his own discretion; however, the trial court should make it clear that the court is exercising its own discretion when making the decision of whether multiple sentences are to be served concurrently or consecutively. See Blagg v. State, 72 Ark. App. 32, 31 S.W.3d 872 (2000); Kellogg v. State, 37 Ark. App. 162, 827 S.W.2d 166 (1992). In the present case, the trial judge stated during sentencing, "These terms should be consecutive with each other. The jury, I believe, made it clear as to their feelings in this matter. And, so, these terms would be consecutive, one with the other...." However, there is no evidence in the record that an objection was made to the terms of imprisonment being imposed consecutively. See Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997); Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993). Consequently, this court could not address this issue in a merit appeal.

Based on the foregoing, we find that there would be no merit to an appeal and no grounds that would even arguably support a reversal. Eads's counsel has properly abstracted and discussed all adverse rulings, and we grant the motion to withdraw as counsel and affirm the conviction.

Affirmed.

PITTMAN AND BIRD, JJ., agree.