John Michael Meeks v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

JOHN MICHAEL MEEKS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-629

March 21, 2001

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[NO. CR99-138]

HON. JOHN S. PATTERSON,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case was charged with committing the offense of rape by engaging in deviate sexual activity with a person less than fourteen years of age. After a jury trial, he was convicted of that offense and sentenced to seventeen years in the Arkansas Department of Correction. From that decision, comes this appeal.

For reversal, appellant contends that the trial court erred in denying his motion for a mistrial. We find no error, and we affirm.

Because the sufficiency of the evidence is not at issue there is no need to specifically detail the facts. Suffice it to say that, at the time of the offense, appellant was approximately twenty-five years of age, single, unemployed, and living in the home of his sister. Appellant's sister testified that she had permitted appellant to come and live in her home and that, in return, appellant was to help take care of the house and the children. There was

evidence that several children were frequently present in the home, including children who were in the custody of appellant's sister and brother-in-law and who resided in the home, and other children of appellant's brother-in-law who were in the custody of others and who frequently visited the home. There was also evidence that, on several occasions, appellant engaged in deviate sexual activity with one of his sister's children who resided in the home, a boy who was then approximately twelve years old.

On direct examination by the State, the victim testified that on one occasion he and his step-brother asked appellant if they could help appellant paint a room in the home, and that appellant responded by saying "Yeah, if you will let me touch you." Appellant moved for a mistrial on the grounds that testimony concerning appellant's solicitation of the victim's step-brother was inadmissible character evidence, and that the State had not provided this information to appellant in discovery. The trial court denied appellant's motion for mistrial; on appeal, appellant asserts that the trial court erred in so doing. We do not agree.

A trial court has wide latitude in its discretion to grant or deny a mistrial and will not be reversed absent an abuse of that discretion. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000). Appellant argues that the trial court should have granted a mistrial because he was severely prejudiced by inadmissible character evidence in the form of the victim's testimony that appellant also solicited sex from another child, the victim's step-brother.

Arkansas Rule of Evidence 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted inconformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Our supreme court has held that testimony is admissible pursuant to Rule 404(b) if it is independently relevant to the main issue, tending to prove some material point rather than merely to prove that the defendant is a criminal or a bad person. Berger v. State, 343 Ark. 414, ___ S.W.3d ___ (2001). Furthermore, in cases where sexual conduct with a child is at issue, evidence of similar acts with the same or other children in the defendant's care or under his authority is admissible when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship, because such evidence helps to prove the depraved sexual instinct of the accused. Id. We think that, on the facts of this case, the victim's testimony that appellant also solicited sex from the victim's step-brother was admissible, and we hold that the trial judge did not abuse his discretion in denying a mistrial on this ground.

Appellant also asserts that a mistrial should have been granted because the State had not provided appellant, pursuant to discovery, with the substance of the victim's testimony concerning appellant's statements made while soliciting the victim's step-brother. Appellant argues that the State must have been aware of the substance of the victim's testimony concerning the solicitation of his step-brother, and argues that the State was therefore required to inform him of the substance of this testimony pursuant to Ark. R. Crim. P. 17.1(a)(ii). We do not agree. Even assuming that the State was aware of appellant'sstatements to the victim's step-brother, an assumption that is not fully supported by the record, we think that any surprise to appellant could have been cured by permitting a brief interview with the witness or by granting a continuance. Where a defendant does not seek any of the lesser forms of relief established by Ark. R. Crim. P. 19.7 for failure to disclose discoverable material, and chooses instead only to request a mistrial, the most extreme remedy available to the trial court, a mistrial may properly be denied except where the fundamental fairness of the trial itself is at stake. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). We cannot say that a mistrial would have been the only appropriate remedy in the case at bar, and we find no prejudicial error on this point

Affirmed.

Baker and Roaf, JJ., agree.