Earnest A. Pipkins v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISIONS I & IV

EARNEST A. PIPKINS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-867

May 16, 2001

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

[NO. CR 00-64]

HONORABLE WILLIAM PICKENS MILLS, CIRCUIT JUDGE

AFFIRMED

Appellant, Earnest A. Pipkins, pleaded guilty to the crime of first-degree sexual abuse in that, being eighteen years old or older, he engaged in sexual contact with a person not his spouse who was less than fourteen years old. See Ark. Code Ann. § 5-14-108(a)(4) (Repl. 1997). At the sentencing hearing, the judge heard the testimony of the victim's father and sentenced appellant to ninety months in the Arkansas Department of Correction and fined him $7,500. On appeal, appellant argues that the judge erred by permitting the victim's father to testify and, further, by allowing the father to testify that appellant shouldn't "walk with this" because "it will just happen to another child." We affirm.

At the hearing, the State informed the judge that the victim would not testify and that the victim's father would testify on the victim's behalf. Appellant objected, arguing that the victim should testify and that the father could testify as to the effect the crime had on himbut not on what he had observed regarding the effect the crime had upon the victim. The judge denied the motion, and the father testified on several matters.

On appeal, appellant contends that the judge should not have permitted the father to testify because his testimony was not relevant and served no purpose other than to incite the court to impose a heavier sentence. He does not, however, argue, as he did at the hearing, that the father could testify as to the effect the crime had on him but not on what he had observed regarding the effect the crime had upon the victim. Clearly, appellant's argument on appeal exceeds the scope and nature of his objection at the hearing. It is well settled that parties are bound on appeal by the scope and nature of their objections at trial. See Johnson v. State, 342 Ark. 186, 199, 27 S.W.3d 405, 413-14 (2000). Thus, we conclude that his argument on appeal is barred. Nevertheless, we note that if a victim is, as in this case, a minor, then a member of the victim's family may exercise the rights of the victim and present victim-impact testimony. See Ark. Code Ann. § 16-90-1114(a) (Supp. 1999); Ark. Code Ann. § 16-90-1112 (Supp. 1999).

During the hearing, the father was asked by the deputy prosecutor what the judge should do with appellant. The father testified that appellant should go to prison and that nothing else was acceptable. The father then testified, "I'm not saying to have something done to him that wouldn't happen, because a person shouldn't walk with this, there's no way, because it will just happen to another child." Appellant's counsel objected, stating, "That's his opinion, and he's not an expert." The judge ruled, "I think he is entitled to his

opinion."

At the conclusion of the hearing, the judge departed from the presumptive sentence and stated in part as follows:

I have read the presentence report, and it does bother me that Mr. Pipkins says that he just wasn't man enough to get away from a child. Mr. Petty, that shows me there's a problem. And even arguing, I assume, the child would say she didn't want him to go to prison, she's been subjected to this conduct for a period of time since she was in at least the fifth grade. Possibly she's had her life destroyed, I don't know. It certainly hasn't enhanced her life. The Court will take judicial notice that the defendant is fifty-five years old. After listening to the evidence, reviewing the presentence report, I can't help but find that this is a deviant behavior, not to be condoned, excused, not something that can be handled with probation. I do not enjoy sending people to prison, but I think that's what justice demands. It is the judgment of this court that Mr. Pipkins will be ordered to be taken and placed in the Arkansas Department of Correction for a period of ninety months, and fined the sum of $7,500 and costs.

Appellant argues that the trial court abused its discretion in permitting the father to give his opinion regarding whether appellant would commit this offense again.1 The introduction of evidence during sentencing is governed by the rules of evidence. See Walls v. State, 336 Ark. 490, 493, 986 S.W.2d 397, 399 (1999). We, however, are unable to address the appellant's argument because he failed to abstract the presentence report. The trial court plainly relied on the presentence report without objection, but that report is not in the record. Consequently, not all evidence relied on by the judge in making his sentencing decision is before this court. Thus, we cannot determine whether there was other evidenceadmitted showing whether appellant has proclivity to commit such crimes. "It is the appellant's burden to produce a record sufficient to demonstrate error ...." See Atchison v. State, 68 Ark. App. 231, 234, 5 S.W.3d 491, 493 (1999). The presentence report is necessary for a proper understanding of the question presented to this court, and because appellant failed to present this court with the presentence report, we affirm. See id.(holding that appellant's failure to abstract a presentence report relied upon by the judge in determining appellant's sentence barred his argument on appeal that improper evidence was submitted during sentencing).

Affirmed.

Jennings, Bird, Griffen, Neal, and Baker, JJ., agree.

1 Though not necessary for our disposition of this case, we note that the Arkansas Supreme Court recently held that "[o]pinions on the appropriate sentence from family members of the victim would be confusing to the jury and interfere with its role." Greene v. State, 343 Ark. 526, 534, 37 S.W.3d 579, 585 (2001).