Atchison v. State

Olly Neal, Judge.

Appellant, Donald (Don) O. Atchison, Jr., appeals from a sentence given by the trial court following his guilty plea to one count of sexual abuse in the first degree and a plea of nolo contendere to one count of arson. After reviewing a presentence report and the sentencing ranges found in Ark. Code Ann. § 5-4-401 (Repl. 1996), the trial court sentenced Atchison to ten years’ imprisonment for sexual abuse in the first degree and five years’ imprisonment for arson with the sentences to be served consecutively. On appeal, Atchison contends that during the sentencing phase of trial, the trial court erred in permitting the State to present evidence of offenses for which he had not been convicted.

The evidence presented in the record showed that, from January through April of 1997, Don Atchison sexually molested his girlfriend’s young son. On February 23, 1998, Atchison entered the pleas mentioned above, and the trial court conducted a sentencing hearing on March 25, 1998. At the hearing, the victim’s mother and two law enforcement officials testified for the prosecution as witnesses. However, prior to the testimony of Detective Jeff Wataski, the prosecutor asked the circuit judge for permission to consider a statement of Miranda rights signed by Atchison in regard to a sexual-abuse allegation that Atchison had fondled another young child. At that point, the circuit judge told the prosecutor that “I’m going to consider it if you want to proffer it.”

JeffWataski thereafter testified that on March 11, 1998, he and Detective Mike Shepherd came in contact with Atchison and read Atchison his Miranda rights. Wataski testified that Atchison understood and signed the statement-of-rights form. When the prosecutor moved to admit the Miranda rights form into evidence, defense counsel objected on grounds that the officers violated Atchison’s Sixth Amendment rights when they questioned Atchison with knowledge that he had a sentencing hearing set for this case and that Atchison was represented by counsel at that time. Defense counsel further objected on the ground that Wataski’s testimony was irrelevant because it focused on an incident that occurred after the present crimes were committed. The circuit judge overruled defense counsel’s objections and allowed the prosecutor to proceed. The following colloquy occurred after the circuit judge stated to defense counsel that he would note his objections for appeal purposes:

PROSECUTOR: As to relevance, again, that is in the sentencing and if this is a situation where there are multiple victims of sex offenders that it is admissible.

The COURT: But he’s only been charged with those at this point, he’s not been convicted, correct?

PROSECUTOR: That’s correct. But, again, that’s evidence that the Court can consider.

The COURT: That’s where I think that you and I differ in our agreement but you may proceed.

The circuit judge allowed the Miranda rights form to be admitted into evidence.

The next witness called on behalf of the State was Detective Mike Shepherd. He testified that on March 11, 1998, he was assigned to investigate Atchison concerning allegations of fondling a five-year-old child in the North Little Rock area, other than his girlfriend’s child. He testified that during his investigation, he found that Atchison’s personal computer contained several photographs of child pornography. He stated that Atchison appeared to be coherent when the officers read him his rights and when he signed his name on the rights form. Shepherd further testified that Atchison gave a voluntary, taped statement about the allegations and that Shepherd had a transcribed version of the interview to present to the court. At that point, the defense counsel renewed his previous objection. However, the circuit judge overruled the objection and allowed the State to mark the statement for identification. The prosecutor was then able to elicit testimony from Shepherd that Atchison admitted to a history of molesting children, including Atchison’s own daughter. Shepherd testified that Atchison sought rehabilitation some eight years ago. Defense counsel objected once again to Shepherd’s testimony on the basis that the taped version of Atchison’s statement should have been presented to the trial court instead of the officer’s recollection. The trial court sustained the objection. Shortly thereafter the circuit judge pronounced sentence.

Atchison does not dispute the victim-impact testimony offered by the victim’s mother in this case. However, Atchison does contend that the trial court erred in allowing the State to introduce evidence concerning the March 11, 1998, allegation of sexual abuse. In support of this point, he argues that the record reflects that the trial court considered this evidence in making its sentencing decision..

In the present case, the circuit judge did state that he relied on the presentence report in departing from the sentencing standards grid under Ark. Code Ann. § 16-90-803 (1987). In regard to the presentence report, the circuit judge made the following remarks:

I see what the grid shows that [sic] the presumptive sentence to be, but because of the details listed in the pre-sentence report, which I have gone over rather carefully, both before the hearing started this morning and since that time, it will be the judgment and sentence of the Court that on Count I, the arson charge, the defendant is ordered to serve a term of five years in the Arkansas Department of Correction. On Count II, the sexual abuse charge, he is sentenced to serve a term of ten years in the Arkansas Department of Correction and those terms will be served consecutively one to the other.

Here, the trial court announced that it relied on the presentence report, without objection from appellant. Further, appellant has not abstracted the presentence report in the record on appeal. It is a fundamental rule that arguments will not be considered where the supporting testimony or evidence has not been abstracted. Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999). Information necessary for a proper understanding of the questions presented to the court must be contained within the abstract. Id. It is the appellant’s burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that which is abstracted. Martin v. State, 337 Ark. 451, 989 S.W.2d 908 (1999).

Because the presentence report provides the basis for appellant’s contention that his sentence was “at least in part” based upon the additional sexual-abuse allegation against him, we cannot say that the trial court committed error in sentencing appellant.¹ For these reasons, the trial court’s decision is affirmed.

Affirmed.

Robbins, C.J., Bird, and Crabtree, JJ., agree. Jennings, J., concurs. GRIFFEN, J., dissents.

1 The dissent cites Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999), as the controlling authority in this case. However, we distinguish the present case from Walls. In Walls, the supreme court reversed and held that the circuit judge abused his discretion “when he allowed testimony about the Stocks murders in as victim-impact evidence and when he held Walls responsible for those murders in fixing his sentence.” Id. at 501, 986 S.W.2d at 403 (emphasis added). In the present case, however, Atchison has failed to abstract the presentencing report, which he contends the trial court considered in determining his sentence. The record on appeal is limited to what is abstracted. K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998).