DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

CACR 01-1160

August 28, 2002

FRANKLIN D. MOORE APPEAL FROM JOHNSON COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE JOHN S. PATTERSON

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

A jury in Johnson County found appellant guilty of rape in violation of Ark. Code Ann. § 5-14-103(a)(1)(C)(i) (Supp. 2001). He was sentenced to a term of ten years in prison. On appeal, appellant contends that the trial court erred in admitting a video tape of a Montel Williams television program and in denying his motion for a mistrial when the prosecutor allegedly violated the "golden rule" in closing argument during the sentencing phase of trial. We find no error and affirm.

There is no dispute about the facts of this case. From September 2000 through January 2001, appellant, at age nineteen,had an intimate relationship with a thirteen-year-old girl who became pregnant. This was established through the testimony of the child, and a confession appellant made to the police. The State also introduced into evidence a short excerpt from the Montel Williams television show where appellant, the child, and the child's sister had appeared. During this portion of the tape, appellant admitted that he and the child had sexual relations and that he was the father of her unborn child. Appellant also disclosed that he had known that the child was only thirteen years old when their sexual relationship began, although in his confes sion to the police he had maintained that he did not learn of her age until after the sixth time they had had intercourse.

Appellant first argues that the trial court erred in allowing the jury to view the excerpt from the television show. He contends that the tape was inadmissible under Ark. R. Evid. 403 because its prejudicial effect exceeded its probative value. However, appellant did not make this precise argument below, and thus the issue is not preserved for appeal. A defendant must specifically ask the trial court to weigh the probative value of evidence against its prejudicial effect before we will consider the issue on appeal. See Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990); Shaver v. State, 37 Ark. App. 124, 826 S.W.2d 300 (1992).

During the State's closing argument at sentencing, the prosecutor made the following remark:

An important part of the jury's verdict and sentence is not only with this particular defendant and not only protecting this partic ular victim, but there are other girls out there, your daughters and granddaughters ...

At this juncture appellant objected and moved for a mistrial arguing that the State had violated the "golden rule."

A golden rule argument is one where the jury is implored to place themselves in the position of the victim. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). It is impermissible because it tends to subvert the objectivity of the jury in that it is seen as an attempt to dissuade jurors from their duty to weigh the evidence and instead to view the case from the standpoint of a litigant or party. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994).

The State argues that the prosecutor's remark did not implicate the golden rule but that it was instead the kind of "send a message" argument that is not impermissible. See Lee v. State, supra. Because appellant's objection interrupted the prosecutor's statement in mid-sentence, we cannot say with confidence that the remark constituted a "golden rule" argument. But even were we to accept appellant's argument that the rule was violated, we would find no reversible error.

A mistrial is an extreme remedy that should be granted only when the error is beyond repair and cannot be corrected by curative relief. Donovan v. State, 71 Ark. App. 226, 32 S.W.3d 1 (2000). Remarks that require reversal are rare and require an appeal to the jurors' passions. Puckett v. State, 324 Ark. 81, 918 S.W.2d 707 (1996). When an improper statement has been made, an admonition to the jury usually cures any prejudice unless the argument is so patently inflammatory that justice cannot be served by continuing the trial. Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001). Here, appellant did not ask for an admonition and the remark was not so inflammatory as to require a mistrial. See Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001). The comment was made during the sentencing phase of trial, where appellant had testified, admitting that he had made a mistake and asking the jury to return the statutory minimum sentence of ten years in prison. The jury did recommend the minimum sentence.

Affirmed.

Neal and Griffen, JJ., agree.