Hunt v. State , 454 S.W.3d 771 ( 2015 )

Cite as 2015 Ark. App. 53ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-14-484
Opinion Delivered February 4, 2015
STANLEY RAY HUNT II
APPELLANT APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
[NO. CR-2013-186]
V.
HONORABLE CHARLES E.
CLAWSON, JR., JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
M. MICHAEL KINARD, Judge
Stanley Ray Hunt II appeals from his conviction at a jury trial of three counts of rape,
for which he was sentenced to concurrent terms of forty years in the Arkansas Department
of Correction. He contends that the trial court erred in admitting evidence that he fled from
police when they sought to arrest him on the charges and erred in giving a nonmodel jury
instruction stating that evidence of flight could be considered as circumstantial evidence
corroborative of guilt. We affirm.
In May 2012, appellant’s niece, N.H., told her school principal and vice-principal that
appellant had been sexually assaulting her for a number of years. N.H. was fourteen years old
at the time that she first reported the abuse, and she stated that it began some five years earlier,
when she was in the fifth grade. Appellant admittedly was made aware of the victim’s
allegations almost immediately after they had first been made. Appellant was not arrested for
the alleged rapes, however, until almost one year later, in April 2013. When police officers
Cite as 2015 Ark. App. 53finally located appellant and went to arrest him, he fled and escaped, eventually turning
himself in a few days later. Prior to trial, appellant moved in limine to prohibit the State from
introducing any evidence concerning his flight to avoid arrest. At the hearing, appellant’s trial
counsel argued that appellant’s flight was irrelevant to the rape charges. He contended that
flight to avoid arrest is simply immaterial in any way to one’s guilt or innocence of any offense
other than the crime of fleeing itself, something with which appellant was not charged. While
at one point counsel made a passing reference to appellant’s flight having occurred “almost
a year after the victim” was first interviewed, he repeatedly argued that appellant’s flight was
probative of nothing more than that appellant did not want to be arrested for crimes that he
had not committed. He insisted that flight is not probative of one’s consciousness of guilt
because “the state of mind of the defendant can only be known to him.” At the end of the
hearing, appellant’s counsel also stated that appellant could have fled because of the possibility
that the police would find drugs in the residence. The trial court denied appellant’s motion
in limine and permitted the State to introduce evidence of appellant’s flight as being
independently relevant to appellant’s consciousness of guilt.
At trial, the State first presented evidence of the charged crimes through the testimony
of the victim, school officials to whom she confided, and a pediatrician who examined the
victim. The State then called Detective Melissa Smith of the Conway Police Department,
who testified that the matter was first assigned to her on May 7, 2012. She began trying to
contact appellant. Despite her efforts contacting other law enforcement and following several
leads regarding where appellant might have been, the detective was unable to locate appellant
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Cite as 2015 Ark. App. 53over the next nine months. In February 2013, a warrant for appellant’s arrest on these charges
was obtained. At that time, Officer Chris Derrick took over the search for appellant. The
officer familiarized himself with the background information in the case, spoke to the
investigators, questioned his contacts in the community, and spoke to appellant’s family
members and friends, including appellant’s girlfriend and his mother, in an unsuccessful effort
to locate appellant. On several occasions in February and March 2013, Officer Derrick
discussed the case with appellant’s girlfriend and mother in unsuccessful attempts to have them
convince appellant to turn himself in to face the charges.
On April 11, 2013, Officer Derrick received a tip that appellant might be found at a
particular address just outside the Conway city limits. After having an undercover investigator
approach the residence and visually confirm that appellant was present, Officer Derrick
enlisted the assistance of other police officers and members of the United States Marshals
Service to go with him to the residence to arrest appellant. Over appellant’s earlier relevancy
objection, officers were allowed to testify that appellant ran out the back door as they
approached the residence. They identified themselves as police officers and ordered appellant
to stop, but he refused and escaped. Despite an intense search using additional officers, a
helicopter, and police dogs, appellant could not be found. Appellant turned himself in four
days later.
After the State rested its case, appellant testified in his own defense. He categorically
denied having ever sexually abused the victim. He further testified, in response to his own
attorney’s questions on direct examination, that he had, indeed, fled and escaped when the
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Cite as 2015 Ark. App. 53police came to arrest him on April 11. He maintained that he was unaware that he was being
sought for the rape charges, insisting that he ran because his friend had been dealing drugs
from the residence and that he (appellant) was afraid of being arrested for possession of a
controlled substance. Appellant admitted, however, that no drugs were actually found in the
house.
On appeal, appellant’s new counsel first contends that the trial court erred in denying
the motion in limine. Appellant has abandoned that part of the argument that he made below
that evidence of flight is per se irrelevant to consciousness of guilt. Instead, he now argues
that evidence of flight to avoid detection or arrest is inadmissible unless the State first shows
the existence of a connection between the flight and the particular crime for which one is
then being tried. Appellant maintains that a sufficient connection was not shown in this case.
He specifically relies on (1) the eleven-month length of time between the original allegations
by the victim and the date on which the authorities attempted to arrest him and he fled; (2)
his position that he did not know at the time of his flight from police that there was a warrant
for his arrest on the rape charges; and (3) his position that there were other reasons unrelated
to the rape charges causing him to flee on the day in question, namely his fear that he would
be arrested for the drugs present in the residence. To the extent that appellant’s current
argument was preserved for appeal by being made below, we find no reversible error.
Arkansas Rule of Evidence 404(b) prohibits introduction of evidence of other crimes,
wrongs, or acts to prove the character of a person in order to show that he acted in
conformity therewith. However, the rule expressly permits introduction of such evidence if
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Cite as 2015 Ark. App. 53it is admissible for another purpose, including proof of intent, motive, or knowledge. The
rule applies to evidence of prior and subsequent bad acts. Anderson v. State, 2009 Ark. App.
804; Fitting v. State, 94 Ark. App. 283, 229 S.W.3d 568 (2006). Moreover, the rule’s list of
permissible purposes for other-acts evidence is not exhaustive. It has long been the law, for
example, that application of the rule permits proof of acts by the accused that constitute
admissions by conduct designed to obstruct justice or avoid punishment for a crime. See Kidd
v. State, 24 Ark. App. 55, 748 S.W.2d 38 (1988). Proof of such acts can “constitut[e]
circumstantial evidence of consciousness of guilt and hence of the fact of guilt itself.” Id. at
62, 748 S.W.2d at 41 (quoting E. Cleary, McCormick on Evidence § 271(c), at 803 (3rd ed.
1984)). Included in this class of acts are flight from the scene or from one’s usual haunts after
the crime, resisting arrest, and escapes or attempted escapes from confinement. Kidd, 24 Ark.
App. at 62, 748 S.W.2d at 41. See also Hayes v. State, 2014 Ark. 104, 431 S.W.3d 882(evidence of flight is admissible to show consciousness of guilt, even if the flight was not
immediately after the alleged commission of the crime); Eliott v. State, 342 Ark. 237, 27
S.W.3d 432 (2000) (flight of a person charged with the commission of a crime has some
evidentiary value on the question of his probable guilt); Flowers v. State, 342 Ark. 45, 25
S.W.3d 422 (2000) (evidence of flight to avoid arrest may be considered by the jury as
corroborative of guilt); Murphy v. State, 255 Ark. 90, 498 S.W.2d 884 (1973) (evidence of
flight, even if it does not immediately follow a crime, is generally admissible as a circumstance
to be considered in determining guilt).
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Cite as 2015 Ark. App. 53Evidence offered under Rule 404(b) must be independently relevant, thus having a
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. Turner v. State, 2009
Ark. App. 822. On appeal, we accord the trial judge wide discretion in balancing the
conflicting interests to determine whether the probative value of such evidence is substantially
outweighed by the danger of unfair prejudice. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654(1997). We will not disturb the trial court’s decision to admit or reject evidence submitted
under Rule 404(b) absent a showing of manifest abuse of discretion. Bond v. State, 2011 Ark.
App. 429. Abuse of discretion is a high threshold that does not simply require error in the
trial court’s decision but requires that the trial court have acted improvidently, thoughtlessly,
or without due consideration. Dixon v. State, 2011 Ark. 450, 385 S.W.3d 164.
From our review, we cannot conclude that the trial court erred in determining that
a sufficient showing was made that evidence of appellant’s flight was independently relevant
to his consciousness of guilt. While it is true that almost a year had passed since the victim’s
allegations against appellant first came to light, appellant cites nothing for the proposition that
the amount of time that passes before flight is determinative of admissibility. Here, there was
also evidence that Conway police had been actively seeking to contact appellant to investigate
the rape charges since the case was first turned over to the police department. The search for
appellant included considerable contact with various members of the community. When the
warrant for appellant’s arrest on the rape charges was issued in mid-February 2013, just weeks
before the failed arrest attempt, the search intensified, and police held multiple discussions
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Cite as 2015 Ark. App. 53about the case with some of appellant’s close friends and family in an effort to get appellant
to turn himself in. Considering appellant’s knowledge of the victim’s allegations against him
almost immediately after they had first been made; the continual, active, and unsuccessful
search for appellant throughout the ensuing eleven-month period; the issuance of a warrant
for appellant’s arrest for the rapes relatively close in time to the arrest attempt and his
accompanying flight; and the knowledge of appellant’s close friends and family that he was
still being sought in connection with this case, we conclude that one could reasonably infer
that appellant knew that he was wanted by the police for the alleged rapes and that he fled to
avoid being arrested for them. Under the circumstances of this case, appellant’s insistence that
he was unaware of the rape charges and his claim instead that he ran simply because he was
afraid of potential drug charges do not render the evidence of flight inadmissible; rather, his
own version of why he fled was a matter of weight and credibility for the jury. See Cooper
v. State, 317 Ark. 485, 879 S.W.2d 405 (1994); Killcrease v. State, 310 Ark. 392, 836 S.W.2d
380 (1992). We find no abuse of discretion by the trial court.
Appellant next contends that the trial court erred when it instructed the jury that
“[e]vidence that the defendant fled to avoid arrest or detection by the police may be
considered by you in your deliberations as circumstantial evidence corroborative of the guilt
of the defendant.” He argues that, when evidence of flight is introduced as circumstantial
evidence of a separate, charged crime, the jury must be told how to use the evidence. He
contends that the instruction given was insufficient because it did not contain sufficient
cautionary language. Specifically, he argues that the court should have spelled out more
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Cite as 2015 Ark. App. 53particularly that guilt could not be presumed from evidence of flight alone and that the jury
was entitled to disregard the proof of flight altogether given the existence of reasons to flee
other than to avoid capture for the crimes charged. We find no reversible error.
First, we agree with the State that this issue largely was not preserved for appeal. At
trial, appellant objected to the State’s proposed instruction and argued that no instruction
should be given on the subject. He took issue with the court’s decision to give any
instruction on the subject since Arkansas has never adopted a model instruction addressing it.
An appellant cannot change his grounds on appeal but is limited to the scope and nature of
the objections presented at trial. Hampton v. State, 2014 Ark. 303, 437 S.W.3d 689.
To the extent that appellant argued both at trial and on appeal that the instruction
given somehow shifted the burden of proof to appellant to disprove guilt, we disagree. The
instruction plainly used the word “may” and left for the jury the decision whether to attach
any weight to the evidence of flight.
Affirmed.
GRUBER and BROWN, JJ., agree.
Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.
Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., and Hannah Wood,
Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission
tot he Bar of the Supreme Court under the supervision of Darnisa Evans Johnson, Deputy Att’y
Gen., for appellee.
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