Weatherford v. State
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION I
No. CACR08-816
Opinion Delivered
March 18, 2009
APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT,
[NO. CR2006-2973]
BOBBY R. WEATHERFORD
APPELLANT
V.
HONORABLE DAVID L.
REYNOLDS, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
LARRY D. VAUGHT, Chief Judge
Appellant Bobby Weatherford claims that the trial court erred in its denial of his
motion for mistrial and improperly allowed inadmissible evidence to be considered by the
jury. We affirm.
A Faulkner County jury found Weatherford guilty of sexual assault in the second
degree under Ark. Code Ann. § 5-14-125(a)(4) (Repl. 2006), and sentenced him to twenty
years’ imprisonment in the Arkansas Department of Correction with an accompanying
$15,000 fine. The finding was supported by trial testimony showing that when Weatherford’s
daughter (who was seventeen at the time of trial) was eleven and twelve years old, he
occasionally entered her bedroom and fondle her breasts. She also testified that he also made
her undress and threatened her if she cried. She noted that when she was in the ninth grade,
he conducted home-based OB-GYN exams on her—requiring her to open her vagina so he
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could look inside and describe to her what he was observing; on one occasion he manipulated
her vagina so he could touch her clitoris. He asked her if she masturbated, to describe—in
detail—her sexual experiences, presented himself nude in both a flaccid and erect state (so that
she would not be alarmed by the sight of a nude man), and washed her back while she
showered.
After being retained to represent Weatherford, his trial counsel requested that
Weatherford receive a pre-trial mental examination to evaluate the possibility of a mentaldefect defense. On appeal, Weatherford argues that the trial court allowed the State to
question him “with information gleaned from his act-three mental evaluation and the sole
purpose of these questions was to create manifest prejudice against him within the jury.”
Indeed, at trial the prosecutor asked questions of Weatherford relating to information
contained in his mental-evaluation report involving his religious studies, meditation practices,
illegal drug use, Christianity, and whether he had been a witch. However, despite the
supposedly inflammatory nature of the line-of-questioning, Weatherford answered several of
the questions before a motion for mistrial was made. In fact, only after Weatherford responded
that the mental-evaluation report as authored had “misquoted” him was there a mistrial
motion. Further, although Weatherford’s counsel requested (at a bench conference) that two
of the questions—based on the alleged misquotes contained in the mental evaluation—be
struck from the record, there is no indication in the record that the judge did so.
In order to preserve this issue for appeal, the mistrial motion must have been tendered
contemporaneously with the supposedly prejudicial remarks. King v. State, 361 Ark. 402, 206
S.W.3d 883 (2005). If the motion is not made at the first opportunity that the objectionable
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information is brought to the jury’s attention, the review of the denial of the motion is waived
for appeal. Ellis v. State, 366 Ark. 46, 233 S.W.3d 606 (2006). Because Weatherford’s
objection was not offered at the first possible opportunity and was not contemporaneous with
the allegedly improper remarks, we do not reach the merits of his claim relating to the
prejudice—if any—he suffered during the pendency of the prosecutor’s questioning and
whether he was due a mistrial.
Affirmed.
G LADWIN and K INARD, JJ., agree.
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