Allen Shane Kelley v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

ALLEN SHANE KELLEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA CR 04-99

January 25, 2006

APPEAL FROM THE CIRCUIT COURT OF WASHINGTON COUNTY

[NO. CR03-1134-1]

HONORABLE WILLIAM A. STOREY,

JUDGE

AFFIRMED

Terry Crabtree, Judge

In a jury trial, Allen Shane Kelley was convicted of second-degree sexual assault and was sentenced as an habitual offender to eight years in prison. On appeal, he contends that the trial court erred in excluding evidence that the victim's mother continued to meet with him after the child's allegation of misconduct, and he argues that the trial court erred by limiting his cross-examination of a witness.1 We find no error and affirm.

The victim in this case is thirteen-year-old C.H. Appellant was married to the child's mother, but in May 2003, they were separated and getting a divorce. At that time, the mother worked long hours at a distant location, and it was often necessary for the child to stay at the home of her friend, A.C.

On Sunday, May 11, 2003, the mother asked appellant to look after the child for the evening. C.H. testified that she had fallen asleep that night in the bedroom of appellant's mother, but that she moved to an air mattress in the den when his mother got home from work. She fell asleep while appellant was watching television on the couch, but she woke up when she felt him get onto the mattress

with her. She fell asleep again but was awakened by appellant rubbing her leg. His hand moved under her shirt to her stomach, but she said that this did not alarm her because appellant often touched her in this manner to help her fall asleep. She woke up again, however, to find his hand underneath her bra. C.H. said that he pulled up her bra and began rubbing her breasts. He then pulled up her shirt and put his mouth on her breast. As he touched her, he asked if she liked it, and he called her "baby." C.H. testified that appellant tried to put his hand down her shorts, but that he stopped when she moved around as if she were waking up. Appellant pulled her shirt down a bit, but he called her name, as if he were trying to wake her up. C.H. told him that she was cold. He then pulled the covers over her, and she turned over and pulled her shirt farther down. She went back to sleep.

The next morning at school, C.H. told her friend, A.C., what had happened. They then contacted the school resource officer and the school's counselor, Tara Stumbaugh. Ms. Stumbaugh testified that, when she first encountered the child, C.H. was sitting in a chair in a fetal position and that she was visibly upset and shaken, and gnawing on her fingernails. Ms. Stumbaugh said that it took a long time for the child to relate the story and that a steady stream of tears rolled down her face as she told it.

Detective Shaun Caley of the Fayetteville Police Department then spoke with C.H. Afterward, he interviewed the appellant. According to the detective, appellant did not specifically deny the child's allegations, but appellant said, in essence, that it may have happened, or it may not have happened.

Appellant's first argument is that the trial court erred by excluding evidence that the child's mother had an ongoing relationship with him after the child accused him of molesting her. Appellant argues that the evidence shed light on the child's credibility and was relevant to his defense that the child had fabricated the allegations in order to capture her mother's attention. In other words, appellant suggests that, by continuing to see him, the mother did not believe the child's accusations.

Appellant's proffer was as follows:

Your honor, I believe the evidence will show that the Defendant had maintained a social relationship with the victim's mother after these allegations were made; they hung out - they spent time together on several occasions and the Defendant will also testify that they had wentout for drinks and I believe this will go to show that the victim's mother did not find her story to be credible based upon her actions.

The trial court ruled that appellant's insinuation that the mother's actions had a bearing on the child's credibility was a "stretch" and thus not relevant. We agree.

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Ark. R. Evid. 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Ark. R. Evid. 403. The admission or rejection of evidence is within the discretion of the trial court, which this court will not reverse in the absence of manifest abuse of that discretion. Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002).

In our view, the mother's opinion as to whether the child was or was not telling the truth is not relevant. The proffer in this case indicates only that the mother met with appellant socially on several occasions after the child's accusations. We are hard-pressed to accept appellant's position that these encounters necessarily lead to a conclusion that the mother disbelieved the child. There are a myriad of reasons why the mother might have had contact with appellant. To name but a few, she may have met with him to discuss the divorce, to seek an explanation of his behavior, to elicit an admission, or her meeting with the appellant, her husband of two years, could have resulted from personal weakness despite what he may have done to her daughter. We also find it significant that appellant chose to mount this attack on the child's credibility by suggestion and innuendo, rather than by calling the mother as a witness, as it is she who could best explain her motivations. We thus agree with the trial court that the relevance of the proposed testimony was remote and potentially misleading. We find no abuse of discretion.

Appellant next argues that the trial court erred by not allowing him to ask Detective Shaun Caley if he had asked the child during his interview whether she might have been making up the allegation to gain her mother's attention. Appellant contends that the trial court's ruling prevented him from impeaching the officer's credibility and that it handicapped the development of his defense that the child invented the allegations to gain her mother's attention. When challenging the exclusion of evidence, a party must make a proffer of the excluded evidence at trial so this court can review the decision, unless the substance of the evidence is apparent from the context. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003). Absent a proffer of the excluded evidence, we have no way of knowing whether appellant was prejudiced by the challenged ruling. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). Here, without a proffer, we cannot ascertain whether the witness's answer to the question would have furthered appellant's purposes for making the inquiry. Therefore, this issue has not been preserved for appeal. Moreover, the witness had previously testified that he had impressed on the child the importance of telling the truth and to not make false accusations. In addition, appellant was able throughout the trial to elicit testimony suggesting that the child may have fabricated the allegations in order to get attention from her mother. If the argument had been preserved, we would have been unable to find prejudicial error.

Affirmed.

Pittman, C.J., and Griffen, J., agree.

1 This case has been before us on a previous occasion. On December 7, 2004, we issued an unpublished opinion ordering rebriefing for counsel to correct a deficient abstract.