Finfrock v. State

Cite as 2017 Ark. App. 90
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-16-516
Opinion Delivered February 15, 2017
GREGORY WAYNE FINFROCK
APPEAL FROM THE WASHINGTON
APPELLANT COUNTY CIRCUIT COURT
[NO. 72CR-2014-2195]
V.
HONORABLE MARK LINDSAY,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED
N. MARK KLAPPENBACH, Judge
Appellant Gregory Wayne Finfrock was convicted by a jury in Washington County
Circuit Court of two counts of rape and one count of sexual indecency with a child. The
charges were based on allegations that appellant, a man in his forties, digitally and orally
penetrated the vagina of a twelve-year-old girl, MA; that appellant had MA place appellant’s
penis in her mouth; that appellant sent nude photographs of himself to MA; and that appellant
exposed himself in person to MA. Appellant admitted that he had committed sexual crimes
against MA, the daughter of appellant’s friend who lived next door. Appellant was sentenced
by the jury to 30 years in prison on each count of rape and to 6 years in prison on the count
of sexual indecency with a child.1 The trial judge imposed consecutive sentences, resulting
in a total term of 66 years of incarceration. Appellant appeals, contending that the trial court
1
The sentencing range considered by the jury for each count of rape was 25 to 40
years, or life imprisonment. The sentencing range considered by the jury for the count of
sexual indecency with a child was not more than 6 years in prison, a fine of up to $10,000,
or a combination of both.
Cite as 2017 Ark. App. 90
abused its discretion in refusing his request to give the jury certain model jury instructions
during the sentencing phase that pertained to concurrent and consecutive sentences, to
transfer and parole eligibility, and to application of the 70 percent rule. We affirm the trial
court’s discretionary decision.
We will not reverse a trial court’s decision to give or reject a jury instruction unless the
court abused its discretion. Gay v. State, 2016 Ark. 433, __ S.W.3d __; Akers v. State, 2015
Ark. App. 352, 464 S.W.3d 483. Abuse of discretion is a high threshold that does not simply
require error in the trial judge’s decision but requires that the trial judge acted improvidently,
thoughtlessly, or without due consideration. Craigg v. State, 2012 Ark. 387, 424 S.W.3d 264;
Squyres v. State, 2015 Ark. App. 665, 476 S.W.3d 839. Additionally, absent a showing of
prejudice, we will not reverse. Miller v. State, 97 Ark. App. 285, 248 S.W.3d 487 (2007).
During trial, but outside the presence of the jury, the prosecuting attorney, the defense
attorney, and the trial judge discussed the matter of jury instructions. The prosecuting
attorney asserted that the State “would rather not have” the model jury instructions on
nonbinding recommendations for consecutive sentences or on parole eligibility. Defense
counsel argued that the jury should be aware of the model jury instructions regarding
recommendations for consecutive sentences, stating that
[the jury should have] the opportunity to decide that without guessing because I don’t
want them back in the jury room wondering . . . . If they’ve got a term of years, I
want to be able to talk to them in sentencing how the math is going to work out…
at least I can talk about it at sentencing that they have some options . . . the fact that
it’s not binding, you [the trial court] still have the ultimate authority and discretion to
give him whatever it is if they come back with some numbers [of years]. . . . I would
like to be able to address that to them so that they don’t go back there and get
confused.
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Cite as 2017 Ark. App. 90
With regard to instructing the jury regarding parole eligibility, defense counsel stated that it
was the same argument and that he did not want the jury to think appellant would serve only
half of a sentence prior to being released from prison. Defense counsel stated that he wanted
the jury to make the best decision for the community knowing the parameters of how the
sentence would play out, that this was relevant to sentencing, and that he wanted the
opportunity to talk to the jury about those instructions. The trial judge stated that he would
think about it during a break in the proceedings and make a ruling when they reconvened.
After the break, the trial judge announced which jury instructions he intended to give
the jury, which did not include the model jury instructions that the defense wanted. Defense
counsel proffered those four jury instructions as defense exhibits, which read as follows:
(1) AMCI2d 9112- Stage Two: Consecutive Sentence Recommendation–
You have convicted Gregory Wayne Finfrock of more than one offense, and
you may sentence him to a term of imprisonment on each offense. If you sentence
him to more than one term of imprisonment, you may also make a recommendation
that any two or more terms of imprisonment be consecutive. A sentence to
consecutive terms of imprisonment means that the terms of imprisonment will be
added together to determine the total term of imprisonment.
You are advised that a recommendation by you that terms of imprisonment be
consecutive will not be binding on the court.
(2) AMCI2d 9318- Stage Two: Consecutive Sentence Recommendation–
If you sentence Gregory Wayne Finfrock to two or more terms of
imprisonment, you may make ONE of the following recommendations:
____ We, the Jury, recommend that all of the terms of imprisonment be
consecutive.
_____ We, the Jury, recommend that none of the terms of imprisonment be
consecutive.
____ We, the Jury recommend that the terms of imprisonment for the
following offenses be consecutive: __________________________
_____________________
Foreman
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Cite as 2017 Ark. App. 90
(3) AMCI2d 9401– Transfer Eligibility: Felonies Below Transfer Eligibility
Line on Sentencing Grid–
In your deliberations on the sentence to be imposed, you may consider the
possibility of the transfer of Gregory Wayne Finfrock from the Department of
Correction to the Department of Community Correction. After he serves 1/3 of any
term of imprisonment to which you may sentence him, he will be eligible for transfer
from the Department of Correction to the Department of Community Correction.
If transfer is granted, he will be released from prison and placed under post-prison
supervision. The term of imprisonment may be reduced further, up to 1/6 of any
period you impose, if he earns the maximum amount of meritorious good time during
his imprisonment.
Meritorious good time is time-credit awarded for good behavior or for certain
achievements while an inmate is confined in a Department of Correction or
Community Correction facility, or in a jail while awaiting transfer to one of those
facilities. An inmate may be awarded up to one day for every day served. Accrual of
meritorious good time does not reduce the length of a sentence but does decrease the
time the defendant is required to be imprisoned before he becomes eligible for transfer
to community supervision, under which the remainder of his sentence will be served.
(4) AMCI2d 9404-A– Release Eligibility: Seventy Percent Law [Act 570]–
In your deliberations on the sentence to be imposed, you may consider the
possibility that Gregory Wayne Finfrock will be paroled or transferred to community
correction supervision. Eligibility for parole or transfer to community correction
supervision is as follows:
I.
Rape is punishable by life imprisonment, or a term of years. Persons under
sentence of life imprisonment are not eligible for parole or transfer to community
correction supervision.
II.
If you sentence Gregory Wayne Finfrock to imprisonment to a term of years,
he will be eligible for parole or transfer to community correction supervision after he
serves seventy percent (70%) of the term of his sentence. This percentage of
imprisonment will not be reduced by the earning of meritorious good time during his
imprisonment.
The State reiterated that it believed these instructions were unnecessary and confusing
to the jury. The trial judge decided that the nonbinding-recommendation instructions would
not be given because they did not serve any purpose in this particular case, he did not want
the jury to be confused, nor did he want the jury “to feel, well, why are we even here.” As
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Cite as 2017 Ark. App. 90
to the parole-eligibility instruction and the 70 percent rule, the State again asserted that these
were unnecessary and potentially confusing to the jury. The trial judge agreed with the State,
rejecting those jury instructions.
During deliberations, the jury sent out a written question, which read, “For each count
of rape, does the sentence run concurrent or consecutive?” The trial judge proposed to both
attorneys that he inform the jury to not consider a rule of law that was not in the jury
instructions that had been given, but the other alternative was to give the jury instruction on
nonbinding recommendations, which the judge thought was “destructive to the jury system.”
The State was in agreement that the jury instruction should not be given. At that point,
defense counsel stated, “I think that we’ll just at this point, go with the Court on the way it’s
done. . . . I feel comfortable under these circumstances that the jury will make the – they’ll
give us a sentence with the instructions they have[.]” The jury was brought to open court,
and the trial judge responded to the question by telling them to refer to the jury instructions
already given, which included an admonition not to consider any rule of law that was not
included in those jury instructions.2 The jury deliberated accordingly, and it sentenced
appellant to the two 30-year sentences for rape and to the 6-year sentence for sexual
indecency with a child.
As appellant’s sentence was pronounced, the trial judge remarked to appellant that he
had taken something from this girl that the justice system could not restore to her; that the
goal of the justice system was to punish, reform, and deter the defendant but also to deter
2
The jury had been instructed that it “should not consider any rule of law with which
you may be familiar unless it is included in my instructions.”
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Cite as 2017 Ark. App. 90
others from committing the same crimes; that appellant admittedly knew that all the sexual
behaviors toward this girl were wrong but did not stop, despite several opportunities to do
so; and that appellant’s concern was obviously for himself and not the harm caused to this
child. The trial judge imposed the jury’s sentences, deciding that they should run
consecutively. This appeal followed.
In determining whether the trial court erred in refusing an instruction in a criminal
trial, the test is whether the omission infects the entire trial such that the resulting conviction
violates due process. Hickman v. State, 372 Ark. 438, 277 S.W.3d 217 (2008); Henderson v.
State, 349 Ark. 701, 80 S.W.3d 374 (2002); Bell v. State, 2014 Ark. App. 458. We hold that
appellant’s rights to due process were not violated. Just because an appellant’s proffered
instructions contain correct statements of the law does not mean that it was error for the trial
court to refuse to give them. Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008). Appellant
has failed to demonstrate reversible error. The trial judge clearly took time to consider
defense counsel’s request for these particular instructions, and he exercised his discretion in
declining to give them. Appellant effectively consented to the trial court’s action when the
question was presented by the jury during deliberations, and appellant has not demonstrated
an abuse of discretion. Compare Bell, supra (affirming refusal to instruct the jury on
nonbinding alternative sentencing recommendations); Benjamin v. State, 102 Ark. App. 309,
285 S.W.3d 264 (2008) (same). Moreover, pursuant to Arkansas Code Annotated section
16-97-103(1) (Repl. 2016), evidence relevant to sentencing “may” include the law applicable
to parole, meritorious good time, or transfer. The word “may” is not mandatory. Walden
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Cite as 2017 Ark. App. 90
v. State, 2012 Ark. App. 307, 419 S.W.3d 739. See also Carroll v. Hobbs, 2014 Ark. 395, 442
S.W.3d 834 (holding that the supreme court had repeatedly held that the Arkansas
Department of Correction, not the sentencing court, determines parole eligibility). Appellant
waived any objections he had regarding the trial court’s failure to give these instructions when
his attorney stated, in response to the jury’s query, that he “felt comfortable” that the jury
would “give us a sentence with the instructions they have.” Appellant’s attorney did not
request again that these jury instructions be given to the jury, acquiescing to the trial judge’s
actions. For the foregoing reasons, we affirm.
Affirmed.
GRUBER , C.J., and GLOVER , J., agree.
Knutson Law Firm, by: Gregg A. Knutson, for appellant.
Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
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