Artie Jackson v. State of Arkansas
Annotate this Case
Download PDF
SUPREME COURT OF ARKANSAS
No.
CR 06-842
Opinion Delivered FEBRUARY 1, 2007
ARTIE JACKSON,
APPELLANT;
VS.
STATE OF ARKANSAS,
A P P E A L FR O M T H E P U L A S K I
COUNTY CIRCUIT COURT, FOURTH
DIVISION; NO. CR 05-3707;
HON. JOHN W. LANGSTON, JUDGE;
APPELLEE;
AFFIRMED.
DONALD L. CORBIN, Associate Justice
Appellant Artie Jackson appeals his conviction of sexual abuse in the first degree and
sexual assault in the second degree. On appeal, he raises two arguments for reversal: the trial
court erred in (1) excluding evidence of the prosecuting witness’s motive; (2) failing to grant
a mistrial because of improper closing arguments by the State. Because we assumed this case
for caseload balance, jurisdiction is proper pursuant to Ark. Sup. Ct. R. 1-2(g). We find no
error and affirm.
On September 16, 2005, Appellant was charged with sexual abuse in the first degree
and sexual assault in the second degree based upon allegations of sexual contact with his
step-granddaughter, J.W.1 Prior to trial, Appellant filed a motion to admit evidence of prior
sexual conduct, asking the trial court to allow evidence of J.W.’s sexual relationship with
1
Appellant was also charged with rape, but that charge was later dropped by the State.
N.P., a boy her own age.2 In his motion, Appellant also argued that a denial of his motion
would violate his federal and state constitutional rights of due process, fair trial, compulsory
process, and confrontation.
On January 30, 2006, an in camera hearing was held on Appellant’s motion.
Appellant questioned J.W. and Regina Barnes, J.W.’s mother, on the issue of her sexual
relationship with N.P. Following the hearing, the trial court issued a letter order and denied
Appellant’s motion finding that the evidence was inadmissible pursuant to the rape-shield
statute, codified at Ark. Code Ann. § 16-42-101 (Repl. 1999). Because the letter order did
not address Appellant’s constitutional arguments, he renewed his motion, and it was again
denied. Prior to trial, Appellant unsuccessfully renewed his motion to admit on two separate
occasions.
On May 3, 2006, a trial was held during which Appellant proffered testimony from
J.W., Ms. Barnes, and himself relating to J.W.’s sexual relationship with N.P. Following
trial, Appellant was convicted as previously set forth. He was sentenced to 120 months’
imprisonment on the sexual-abuse charge, and 240 months’ probation on the sexual-assault
charge. This appeal followed.
Appellant’s first argument is that the trial court erred, both as a matter of statutory
interpretation and constitutional application, in excluding evidence that J.W. had sex with
2
The motion also asked the trial court to allow evidence that J.W. had a sexually
transmitted disease, but that testimony is not a subject of this appeal.
-2-
CR 06-842
N.P. First, Appellant argues that the trial court erred in excluding evidence, pursuant to the
rape-shield statute, because the proffered testimony showed her motive to fabricate her
allegations against Appellant. Second, Appellant claims that because of this exclusion, he
was precluded from presenting a defense in violation of his constitutional rights as
guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution and
article 2, sections 8 and 10 of the Arkansas Constitution.
The rape-shield statute states, in pertinent part:
In any criminal prosecution under § 5-14-101 et seq. or § 5-26-202 . . .
opinion evidence, reputation evidence, or evidence of specific instances of the
victim’s prior sexual conduct with the defendant or any other person, evidence
of a victim’s prior allegations of sexual conduct with the defendant or any
other person, which allegations the victim asserts to be true, or evidence
offered by the defendant concerning prior allegations of sexual conduct by the
victim with the defendant or any other person if the victim denies making the
allegations is not admissible by the defendant, either through direct
examination of any defense witness or through cross-examination of the victim
or other prosecution witness, to attack the credibility of the victim, to prove
consent or any other defense, or for any other purpose.
Ark. Code. Ann. § 16-42-101(b). Therefore, under section 16-42-101, evidence of a victim’s
prior sexual conduct is inadmissible by the defendant to attack the credibility of the victim,
to prove consent or any other defense, or for any other purpose. White v. State, ___ Ark. ___,
___ S.W.3d ___ (Nov. 2, 2006).
We further reiterated that:
An exception to this rule exists when the trial court, at an in camera hearing,
makes a written determination that such evidence is relevant to a fact in issue,
and that its probative value outweighs its inflammatory or prejudicial nature.
Ark. Code Ann. § 16-42-101(c)(2)(c). The statute’s purpose is to shield
-3-
CR 06-842
victims of rape or sexual abuse from the humiliation of having their sexual
conduct, unrelated to the charges pending, paraded before the jury and the
public when such conduct is irrelevant to the defendant’s guilt. State v.
Townsend, 366 Ark. 152, ___ S.W.3d ___ (2006). Accordingly, the trial court
is vested with a great deal of discretion in determining whether the evidence
is relevant, and we will not overturn the trial court’s decision unless it
constitutes a clear error or a manifest abuse of discretion. Id.
Id. at ___, ___ S.W.3d at ___. See also Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152
(2004).
Here, Appellant claims that, as a matter of interpretation of the rape-shield statute, this
case is governed by Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979), such that
evidence of an alleged victim’s motive or bias is always admissible. This statement is simply
incorrect. While it is true that motive or bias may be admissible, as it was in Marion, this
evidence can only be allowed after an in camera hearing to determine the relevancy of the
evidence and if its probative value outweighs its prejudicial nature. In Marion, this court
determined that the proffered evidence was relevant to the question of whether the alleged
act of sexual intercourse actually occurred. In the instant case, the proffered evidence was
not only barred by the rape-shield statute but also lacked any relevance to the question of
Appellant’s guilt. Specifically, the fact that J.W. had sexual intercourse with a boy her own
age is not related to whether Appellant engaged in inappropriate sexual behavior with the
minor victim. Accordingly, we cannot say that the trial court clearly erred in denying
Appellant’s motion.
-4-
CR 06-842
Furthermore, Appellant’s constitutional argument must also fail.3 Appellant claims
that he was denied the ability to present evidence of the context in which the allegations were
made and thus was unable to adduce significant evidence of J.W.’s true motive. He
concludes that this was a clear violation of his constitutional right to present a defense.
However, during the trial, Appellant elicited testimony from J.W. as to another possible
motive for accusing Appellant, specifically that she was bored at her grandparents’ house.
Thus, it was not that Appellant was not allowed to present a defense, but rather that he was
not allowed to present the defense he wanted due to the exclusion of J.W.’s prior sexual
conduct. As the exclusion was proper under section 16-42-101(b), the trial court did not err
in finding that the exclusion did not violate Appellant’s constitutional rights.
Appellant’s second argument for reversal is that the trial court erred in failing to grant
a mistrial, or issue an admonition, as a result of the State’s improper closing remarks. We
have made it very clear that a mistrial is a drastic remedy that should only be granted when
justice cannot be served by continuing at trial, or when the error cannot be cured by an
instruction or admonishment. See, e.g., Holsombach v. State, ___ Ark. ___, ___ S.W.3d ___
(Jan. 11, 2007); Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003). We have also explained
that “some leeway is given to counsel in closing argument and that counsel are free to argue
3
Appellant is not challenging the facial validity of the rape-shield statute, but rather
his position is that, as applied to the particular facts of this case, the exclusion violated those
constitutional rights enumerated in the Fifth, Sixth, and Fourteenth Amendments to the U.S.
Constitution and article 2, sections 8 and 10 of the Arkansas Constitution.
-5-
CR 06-842
every plausible inference which can be drawn from the testimony.” Newman v. State, 353
Ark. 258, 290, 106 S.W.3d 438, 459 (2003). Therefore, a trial court is given broad discretion
in controlling the arguments of counsel, such that, absent an abuse of that discretion, the trial
court’s decision will not be disturbed on appeal. See, e.g., Cox v. State, 345 Ark. 391, 47
S.W.3d 244 (2001); Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984).
In the present case, Appellant argues that on four separate occasions the State made
improper comments during its closing arguments. Based on these comments, Appellant
asserts that he is entitled to a reversal of his conviction because the prosecutorial violations,
both individually and collectively, were sufficient to warrant a mistrial.
First, Appellant argues that a mistrial, or at least an admonishment, should have been
issued on two occasions where, as he alleges, the State made improper comments and
references to evidence that was excluded at the State’s request. Specifically, because he was
prevented by the rape-shield statute from showing what he believed was J.W.’s true motive
for the allegations, Appellant asserts that a mistrial was warranted due to the following
comments made by the State in its closing arguments concerning what, if any, motivation
J.W. would have to lie about Appellant.
The first comment occurred during the State’s closing argument when it stated:
[P ROSECUTOR]: Now, then you heard from Paw Paw, from the
Defendant. What did he say? It didn’t happen. What did the Defense attorney
say at the beginning of the trial? This is a lie. That [J.W.] made this all up,
and now she’s having to deal with it and repeat the lie time and again.
-6-
CR 06-842
Ladies and gentlemen, what incentive does a 15 year old girl have to
make this up?
The second alleged improper comment occurred during the State’s rebuttal when the
following was said:
[P ROSECUTOR]: What the Defense is trying to float out there is she
didn’t like these rules. She was bored, didn’t want to go over there. What
child of that age wouldn’t be bored at certain times? Does that make any sense
why a year and a half later she’d tell her mom about what this man had done
to her because she was bored when she went over there? She didn’t want to
go over there anymore. Well, guess what, she wasn’t having to go over there
anymore. She hadn’t been over there but maybe two or three times –
In both instances, Appellant sought, and was denied, a mistrial. The trial court also declined
to issue an admonishment based upon its belief that it would further emphasize the comment.
Upon review, we cannot say that the trial court abused its discretion.
Appellant claims that these comments were improper because he was prevented by
the trial court from presenting evidence of J.W.’s prior sexual activity and her true motive
to lie. First, as shown above, this evidence was properly excluded under the rape-shield
statute as it had no relevance to the charges filed against Appellant. Second, Appellant
incorrectly relies on Cook, 283 Ark. 246, 675 S.W.2d 366, and Calvin v. Jewish Hospital of
St. Louis, 746 S.W.2d 602 (Mo. Ct. App. 1988), to support his argument that the State was
not allowed to discuss evidence excluded on an attorney’s motion. Here, Appellant, not the
State, sought to have the testimony related to J.W.’s sexual relationship with N.P. admitted
under the rape-shield statute. Therefore, both Calvin and Cook are inapposite.
-7-
CR 06-842
Lastly, the trial court is in the best position to determine the effect of statements on
the jury and, in this case, the trial judge commented that he felt that an admonishment would
only further emphasize the comment. Here, the State’s comments related to evidence already
before the jury and “counsel [is] free to argue every plausible inference which can be drawn
from the testimony.” Newman, 353 Ark. at 290, 106 S.W.3d at 459. Thus, the trial court did
not err in denying to grant a mistrial, or issue an admonishment, in response to either of these
comments.
Next, Appellant argues that, because he was denied access to J.W.’s counseling
records, the trial court should have granted a mistrial when the State made a reference to
J.W.’s emotional state during closing arguments. At the end of the State’s closing argument,
the following took place:
[P ROSECUTOR]: Now, ladies and gentlemen, we’re going to ask that you
hold this Defendant responsible for these actions. [J.W.] has had to deal with
the consequences of this Defendant’s actions both physically and emotionally.
....
[D EFENSE C OUNSEL]: Again, I move for a mistrial. We were denied
access to the counseling records, and I move – And she’s talking about
emotional, and I was denied access to the counseling records. And I again
move for a mistrial. Second time. We just need to start over. And without
waiving that, I move for an admonition.
[P ROSECUTOR]: Your Honor, this victim cried while on the stand. I
think that’s more than enough emotional pain that she’s having to deal with,
and the jury saw that first-hand. I think that’s proper argument.
Again, the trial court denied the motion as well as Appellant’s request for an admonishment.
-8-
CR 06-842
In the present case, the State was not referencing the sealed counseling records when
it commented on J.W.’s emotional state. Rather, the State was making what is an obvious
comment about J.W. having to deal with Appellant’s actions “physically and emotionally,”
which was shown when she cried during her testimony. The trial court took note of the
State’s explanation that its comments related to J.W.’s emotional state, which the jury saw
firsthand, and denied Appellant’s motion for mistrial. Although the record itself does not
state, “J.W. cried,” the trial court has wide discretion in controlling the arguments of counsel.
Accordingly, we cannot say that the trial court abused its discretion.
Lastly, Appellant argues that the State violated Timmons v. State, 286 Ark. 42, 688
S.W.2d 944 (1985), when it made reference to his sustained hearsay objections during
Ms. Barnes’s testimony. The alleged improper comments occurred during the State’s final
closing argument, as follows:
[P ROSECUTOR]: But, ladies and gentlemen, Defense attorney wanted to
make a big deal out of the fact that [J.H.] wasn’t here to testify. If you recall,
every time Regina Barnes tried to tell something –
[D EFENSE C OUNSEL]: Objection, Your Honor.
....
[D EFENSE C OUNSEL]: This violates Timmons v. State. You cannot
criticize a law – You cannot criticize counsel for an objection that was granted.
[T HE C OURT]: That’s exactly right.
[D EFENSE C OUNSEL]: And I move for another mistrial. That’s why
Timmons was reversed.
-9-
CR 06-842
[P ROSECUTOR]: Your Honor, the point I’m trying to make here is
Defense counsel says that – He knows that if we’d have brought [J.H.] in here
to testify that that would have been hearsay. That would have been
inadmissible hearsay. He argued that to the jury. I can come back and try to
correct that, Your Honor. He knew that if we’d have had [J.H.] here, come in
this Court Room, and get on the stand and say [J.W.] told me she’d been
sexually assaulted, he would have objected, and the Court would have
sustained that objection, and it would have been a proper ruling.
Appellant’s request for a mistrial and an admonishment were again denied.
The trial court did not err in denying the mistrial and failing to issue an admonition.
Here, Appellant is relying on Timmons, 286 Ark. 42, 688 S.W.2d 944, to support his
argument that the prosecution made an improper reference to properly sustained defense
objections. In Timmons, we held that it was prejudicial “to allow the state to call a witness
to the stand when it is already known that the witness cannot give valid relevant testimony
and then argue to the jury that it was the appellant who prevented the jury from hearing the
evidence.” Id. at 43, 688 S.W.2d at 944. Upon review, Timmons is distinguishable and not
applicable to this case.
Here, J.W. testified that she told her friend J.H. about Appellant’s abuse and that J.H.
was not present in the courtroom. Then, during closing arguments, Appellant’s counsel
referred to the State not calling J.H. Specifically, he stated, “There was a claim that she told
a girl named [J.H.], but did the State call [J.H]? No. I think that’s telling that there’s no
[J.H.] here to corroborate even that flimsy part of the story.” The alleged improper comment
occurred during the State’s final closing arguments when it referred to Ms. Barnes’s
testimony. In response to Appellant’s objection, the State stated that it was merely trying to
-10-
CR 06-842
explain hearsay to the jury by reminding them of Appellant’s successful hearsay objections
during Ms. Barnes’s testimony, as well as to explain J.H’s absence and her inability to testify.
It is clear that the State’s statements were not attacking the validity of the trial court’s hearsay
rulings, nor was the State trying to evade the trial court’s earlier rulings, as in Timmons.
Rather, the State was only attempting to explain and rebut Appellant’s closing remarks. As
such, the trial court did not abuse its discretion in denying the mistrial or in failing to issue
an admonishment.
Affirmed.
IMBER, J., not participating.
-11-
CR 06-842
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.