Mark Alan Dodson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CACR 01-43

October 24, 2001

MARK ALAN DODSON APPEAL FROM CRAWFORD COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE FLOYD G. ROGERS

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

The appellant, Mark Alan Dodson, was found guilty by a Crawford County jury of first-degree violation of a minor. As recommended by the jury, he was sentenced to a term of ten years in prison of which seven years were suspended. Appellant's sole contention on appeal is that the trial court erred in refusing his request to call the victim as a witness during the sentencing phase of trial. We find no reversible error and affirm.

The female victim, C.B., at age fifteen, was placed by the Arkansas Department of Human Services in the home of appellant andhis wife, the victim's cousin. She lived with them from April through September 1999. Appellant, age twenty-nine, had a sexual relationship with C.B., who became pregnant. Appellant and his wife have since divorced.

Jennifer Berry, the victim's caseworker at DHS, testified that C.B. ran away after she was returned to DHS custody and that she was not found until December. At that time, C.B. disclosed that she was pregnant, but would not say who fathered the child. C.B. eventually disclosed that appellant was the father of her unborn child. She gave birth to a son in May, and there has been an adjudication that appellant is the father of the child.

Elizabeth Carter investigated the case for the Arkansas State Police. She interviewed appellant in January 2000. Officer Carter testified that appellant admitted that he had engaged in a sexual relationship with C.B., that he was divorcing his wife, and that he hoped to marry C.B.

C.B. testified that she and appellant had carried on a sexual relationship and that she had become pregnant. She also testified that she had not cooperated in the investigation because she had wanted to keep appellant out of trouble.

In his testimony, appellant admitted that he had a sexual relationship with C.B. while she was living in his home and that he was the father of her child. He said that what he had done waswrong, that he wanted to make it right, and that he had been working two jobs so as to have enough money to marry C.B.

At sentencing, appellant called C.B. as a defense witness. The State objected, and the trial court refused to allow the child to testify. As a proffer, appellant's counsel stated:

We believe that [C.B.], if called to testify, would, as the victim, have a right to testify and that she would state that what she wanted the outcome of the case to be and that she would have a right to do so. That is what's been denied by the trial court.

On appeal, appellant contends that the trial court erred in its ruling.

When the trial court excludes evidence as irrelevant, the standard of review is whether the court abused its discretion. Leaks v. State, 66 Ark. App. 254, 990 S.W.2d 564 (1999). Here, appellant's proffer did not include the substance of the victim's proposed testimony. When challenging the exclusion of testimony, appellant must make a proffer of the excluded evidence at trial so that we can review the decision, unless the substance of the evidence is apparent from the context. Ark. R. Evid. 103; Halford v. State, 342 Ark. 80, 27 S.W.3d 346 (2000). Absent a proffer, we have no means of determining if prejudice occurred, and the failure to proffer evidence so that the appellate court can make that determination precludes review of the issue on appeal. Haltiwanger v. State, 322 Ark. 764, 912 S.W.2d 418 (1995). Appellant's failure to include in his proffer what the witness might have said is fatalto his appeal because we are left to speculate about what the testimony might have been. See, e.g., McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). On this record, we can find no abuse of discretion.

Affirmed.

Stroud, C.J., and Hart, J., agree.