Moe v. State , 2017 Ark. App. LEXIS 643 ( 2017 )

Cite as 2017 Ark. App. 546
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-17-13
Opinion Delivered: October 25, 2017
JAMES MOE
APPELLANT
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. 04CR-15-1520]
STATE OF ARKANSAS
APPELLEE
HONORABLE BRADLEY LEWIS
KARREN, JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
James Moe appeals his Benton County Circuit Court convictions of third-degree
domestic battery and aggravated assault on a family or household member. The sole issue
on appeal is whether the circuit court abused its discretion by denying Moe’s motion for a
mistrial. We affirm.
On October 28, 2015, the State charged Moe with third-degree domestic battery
and aggravated assault of his girlfriend, Christina Burt. The State also charged Moe as a
habitual offender. Prior to trial, on May 9, 2016, Moe moved to appear at trial in civilian
clothing and without restraints. On May 13, 2016, the circuit court granted Moe’s request.
At trial on May 20, 2016, Corporal Brent Farrer testified that he responded to Moe
and Burt’s residence on September 9, 2015. When Farrer arrived, Burt was crying and
trembling and reported that Moe had headbutted and choked her and then fled the
household. Farrer explained that during his conversation with Burt, Moe called Burt’s cell
Cite as 2017 Ark. App. 546
phone and that Farrer spoke with Moe over the phone. Farrer testified that he asked Moe
to return to the house. The prosecutor then asked Farrer, “And apparently, [Moe] was not
agreeable to come back to the house like you asked him?” Farrer responded, “That is
correct. He said he wanted to talk to his parole officer first.”
Moe’s attorney immediately moved for a mistrial based on Farrer’s statement
concerning Moe’s parole officer. His attorney acknowledged that the State did not elicit the
statement and that Farrer inadvertently made the statement, but he maintained that the
statement was highly prejudicial to his client. He did not object to admonishment if the
court denied his mistrial motion. The court denied the motion and instructed the jury to
disregard Farrer’s statement concerning Moe’s parole officer.
Burt testified that on September 9, 2015, Moe became upset with her when she did
not clean their house or cook dinner, and Moe headbutted and choked her. She explained
that she ran across the street and called 911, and after she called the police, Moe fled the
scene in his car.
The jury convicted Moe of both charges. Moe was sentenced to twelve years’
imprisonment for aggravated assault and one year in the Benton County jail and was fined
$1,000 for third-degree domestic battery. Moe timely appealed his convictions to this court.
A mistrial is an extreme and drastic remedy that will be resorted to only when there
has been an error so prejudicial that justice cannot be served by continuing with the trial or
when the fundamental fairness of the trial has been manifestly affected. Moore v. State, 355
Ark. 657, 144 S.W.3d 260 (2004). Declaring a mistrial is proper only where the error is
beyond repair and cannot be corrected by any curative relief. McClinton v. State, 2015 Ark.
2
 Cite as 2017 Ark. App. 546
425, 464 S.W.3d 913 (citing Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001)). The
judge presiding at trial is in a better position than anyone else to evaluate the impact of any
alleged errors. Id. Therefore, the circuit court has wide discretion in granting or denying a
motion for mistrial, and the decision of the circuit court will not be reversed except for
abuse of that discretion or manifest prejudice to the complaining party. Id. (citing Hall v.
State, 314 Ark. 402, 862 S.W.2d 268 (1993)). Our supreme court has stated that among the
factors to be considered in determining whether a circuit court abused its discretion in
denying a motion for mistrial are whether the prejudicial response was deliberately induced
and whether an admonition to the jury could have cured any resulting prejudice. McClinton,
2015 Ark. 425, 464 S.W.3d 913 (citing Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002)).
In this case, Moe argues that the circuit court abused its discretion in denying his
motion for a mistrial. He acknowledges that Farrer inadvertently made the statement;
however, he claims that the comment was so prejudicial that an admonishment to the jury
was insufficient to cure the error. He points to Box v. State, 348 Ark. 116, 71 S.W.3d 552
(2002), wherein our supreme court stated that when a defendant’s prior incarceration status
is not concealed from the jury, his right to a fair trial is in serious jeopardy. Moe
acknowledges that the factual circumstances here are similar to those in Jones, 349 Ark. 331,
78 S.W.3d 104. However, he asserts that Jones conflicts with Box.
In Jones, the prosecutor asked an officer what happened after the officer made contact
with the defendant, and the officer responded that he discovered the defendant was on
parole. 349 Ark. 331, 78 S.W.3d 104. Jones’s attorney moved for a mistrial because the
officer had disclosed that the defendant was a parolee. Id. The circuit court denied the
3
Cite as 2017 Ark. App. 546
motion, and Jones declined to have the jury instructed to disregard the statement out of
concern that it would only draw more attention to the comment. Id. Our supreme court
affirmed, reasoning that nothing about the prosecutor’s question indicated that he was
attempting to elicit Jones’s criminal history. Id. The prosecutor had merely asked what
happened after the officer contacted Jones, and a comment about the defendant’s parole
status was not the answer that the question was intended to evoke. Id.
In this case, we hold that the circuit court did not abuse its discretion by denying
Moe’s motion for a mistrial. As Moe concedes, the circumstances here are similar to those
in Jones. Nothing about the prosecutor’s statement indicated that he was attempting to elicit
the statement. Further, the court admonished the jury to not consider the statement.
Moreover, this case and Jones are distinguishable from Box. In Box, our supreme court
reversed a conviction when the circuit court denied the defendant’s continuance so that he
could change from his Arkansas Department of Correction uniform to civilian clothes. Box,
348 Ark. 116, 71 S.W.3d 552. It did not involve a statement concerning a defendant’s parole
status. See id. Further, to the extent that Moe argues that Jones should be overruled, this
court lacks the authority to overrule decisions of the Arkansas Supreme Court. See Flores v.
State, 87 Ark. App. 327, 194 S.W.3d 207 (2004). Accordingly, we hold that Moe has failed
to establish a reversible error.
Affirmed.
VAUGHT and HIXSON, JJ., agree.
Jeffrey Weber, for appellant.
Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., and Bryan
Foster, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing
Admission to the Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson,
Deputy Att’y Gen., for appellee.
4