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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-13-204
Opinion Delivered October 22, 2014
TRENTON HOLLEY APPEAL FROM THE FAULKNER
APPELLANT COUNTY CIRCUIT COURT
[NO. 23CR-11-448]
V.
HONORABLE CHARLES E.
STATE OF ARKANSAS CLAWSON, JR., JUDGE
APPELLEE
AFFIRMED
BRANDON J. HARRISON, Judge
A Faulkner County jury convicted Trenton Holley for a second-degree sexual assault of
his fourteen-year-old stepdaughter, K.W. He was sentenced to seventeen years in prison. The
issues here are whether the circuit court erred (1) by denying Holley’s motion to suppress
certain statements that he made while in police custody and (2) by admitting certain testimony
during the sentencing phase. We affirm.
I. Background
In mid-March 2011, K.W. told her mother, Dusty Holley, that her stepfather, Trenton
Holley, came into her room on several occasions while she was sleeping and inappropriately
touched her. Dusty reported the incident to the police, and on March 17, State Police
Investigator Joni Clark spoke with Dusty Holley. Investigator Clark scheduled an interview
on March 30, and Trenton Holley attended. During that interview, Holley told Investigator
Clark that he had gone into K.W.’s room “to look at her” but that he “never touched her.”
Cite as 2014 Ark. App. 557
At the end of the interview, Clark arrested Holley and took him to jail. The next day, March
31, Clark recorded a second interview with Holley. During the second interview Holley
admitted that he had touched K.W.’s vagina through her clothes. Both interviews were
recorded by Investigator Clark. The State filed criminal charges against Holley in April 2011,
alleging that he had engaged in deviate sexual activity with K.W.
II. The Suppression Issue
In June 2012, Holley filed a pretrial motion to suppress incriminating statements he
made during the March 31 interview, alleging that the State had induced a confession by a false
promise of reward and leniency. The court held a motion hearing and addressed Holley’s
March 31 statement to Investigator Clark. Several witnesses testified about the details
surrounding the March 31 confession.
Investigator Clark testified that Holley met with her voluntarily on 30 March 2011.
Clark said that, at first Holley denied going inside K.W.’s room, but then said he went to get
his cell phone and eventually admitted to looking at his stepdaughter. Clark said that she
arrested Holley after the interview and that, while taking him to jail, he asked to make a deal.
Holley wanted to plead to a misdemeanor because he would lose his job if convicted of
committing a felony. Clark said that she told him that she could not offer him anything
“because it would be coercion” but that she could talk to the deputy prosecuting attorney.
Clark later relayed to Holley that the deputy prosecuting attorney would not offer him any
deal; the prosecutor did, however, offer him a $15,000 bond. Clark explained that Holley
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normally would be held without bond until his first appearance. Clark “did not recall”
Holley’s response to the bond offer.
When Investigator Clark met with Holley the next day, at his request, according to
Clark, Holley signed a “Statement of Rights Miranda Warning Form”. Holley then changed
his story and admitted to touching K.W.’s vaginal area. Investigator Clark testified that she did
not make Holley any promises if he confessed. She denied any physical intimidation, coercion,
or that she had indicated that Holley could receive a lighter sentence or probation in exchange
for his statement. On cross-examination, Clark said that she told Holley the message from the
prosecuting attorney was: “No deal will be offered; however a $15,000 bond will be given if
you make an admission.” Co-investigator Todd Mize also testified that neither he nor Clark
threatened, coerced, or promised Holley leniency as a quid pro quo for an admission.
Holley testified too, telling the court that he had “no idea” that he was going to be
arrested on March 30 when he spoke with Investigator Clark. As Clark was walking him to
the jail, Holley said that he discussed two concerns with her. The first was that he would lose
his job if he didn’t show up for work. The second concern was about whether the charge
would be a misdemeanor or a felony. Holley thought he would see a judge the next day,
March 31.
Holley testified that when he found out that he could be held until Monday without
bond, he told Investigator Clark that he touched K.W. so that he could get a bond, get out of
jail, and keep his job. According to Holley, Investigator Clark said that he could “have a
$15,000 bond if I was willing to talk.” Holley’s understanding was that if he didn’t tell Clark
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that he “did it or confess to it” he would sit in jail some more; and if he wasn’t at work by
Friday he wouldn’t have a job.
On cross-examination, Holley acknowledged that after he gave the second interview,
he received a $15,000 bond and got out of jail. He agreed that Clark did not lie to him or
give a false promise and that he understood his Miranda rights and that he “admitted to
something so he could get out of jail.” Without the promise of a bond, Clark said that he
“would not have admitted to anything.”
This court reviews a circuit court’s decision denying a defendant’s motion to
suppress a confession by making an independent determination based on the totality of the
circumstances, and the ruling will be reversed only if it is clearly against the preponderance
of the evidence. Fritts v. State, 2013 Ark. 505. Circuit courts resolve conflicting
testimony that arises from suppression hearings. Id.
A statement made while in custody is presumptively involuntary, and the State
must prove by a preponderance of the evidence that a custodial statement was given
voluntarily. Id. A person subject to a custodial interrogation must first be informed of his
right to remain silent and right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436
(1966). To determine whether a waiver of Miranda rights is voluntary, this court asks if
the confession was the product of free and deliberate choice or the product of
intimidation, coercion, or deception. Jones v. State, 344 Ark. 682, 687, 42 S.W.3d 536,
540 (2001).
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A statement induced by a false promise of reward or leniency is not voluntary.
Wallace v. State, 2009 Ark. 90, 302 S.W.3d 580. When a police officer makes a false
promise that misleads a prisoner, and the prisoner confesses because of it, then the
confession was not made voluntarily, knowingly, and intelligently. Roberts v. State, 352
Ark. 489, 102 S.W.3d 482 (2003). Because “the object of the rule is not to exclude a
confession of truth, but to avoid the possibility of a confession of guilt from one who is, in
fact, innocent,” a person seeking to have a statement excluded on the basis that a false
promise was made must show that the confession induced by the false promise was untrue.
Fuson v. State, 2011 Ark. 374, 383 S.W.3d 848.
In determining whether there has been a misleading promise of reward, we
consider the totality of the circumstances. Id. This inquiry has two main components: the
officer’s statement to the defendant and the defendant’s vulnerability. Id. If this court
decides that the officer’s statement is an unambiguous, false promise of leniency, then the
defendant’s statement is involuntary. Id. Nor do we assess the defendant’s vulnerability if
we first conclude that no false promise of reward or leniency was even made. Id. On the
other hand, if the officer’s statement is too ambiguous, then we assess the defendant’s
vulnerability, an analysis that considers (1) the age, education, and intelligence of the
accused; (2) how long it took to obtain the statement; (3) the defendant’s experience, if
any, with the criminal justice system; and (4) the delay between the Miranda warnings and
the confession. Id.
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Considering the totality of all the circumstances, we hold that the circuit court did not
err in finding that Holley made a voluntary and admissible statement when he told the police
that he had touched K.W.’s vaginal area. We begin and end our analysis at the first step of the
required analysis: because the police made no false promise, or a sufficiently ambiguous
statement that might have misled a vulnerable defendant, there is no need to delve into
Holley’s vulnerability.
Investigator Clark’s report to Holley was true—he was permitted to post a $15,000
bond without a court appearance and return to his job. Holley testified that he understood his
Miranda rights, and the State offered documentary proof of Holley’s acknowledgment. There
was not much delay between the Miranda warnings and Holley’s confession, and the overall
length of the interview was less than one hour. True, there was conflicting testimony on
Investigator Clark’s alleged statement to Holley that she would “push for probation,” but the
circuit court could and did seemingly resolve that conflict in the State’s favor. In any event,
Holley does not argue the probation point here. Finally, there was no promise to dismiss the
criminal charges.
The circuit court did not err in denying Holley’s pretrial motion to suppress statements
made during his custodial interview with Investigator Clark.
III. The Sentencing Issue
We now turn to whether the circuit court mistakenly allowed testimony of alleged
sexual contact between Holley and his sister, Shelly, during the sentencing phase of Holley’s
trial.
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Holley filed a pretrial motion in limine asking the court to exclude testimony from any
witness, other than the victim, about alleged sexual acts or sexual contact with him. The
motion was based on Ark. R. Evid. 404(b), which prohibits the State, in part, from using past
bad acts as character evidence to show a defendant is a criminal or a bad person. Ark. R. Evid.
404(b) (2013); see also Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006). Some of the
statements Holley targeted were made during a phone call that Investigator Clark had recorded
between Holley and his wife, Dusty. During the call Dusty asked Holley, “What about
Shelly? Did you rub her boobs under her shirt?” Holley responded that “he did not know
why he did it” and said that “it was not right in the head.” Other targeted statements arose
from the first recorded (March 30) interview between Investigator Clark and Holley, during
which Clark asked Holley about the allegation; Holley responded, “My sister? That happened
years ago, it was after she graduated high school. I did touch her.” Holley explained that
Shelly was living with his family and that, on one occasion, he approached Shelly while she
was in his bed and touched her breasts.
These statements were not allowed to be used against Holley during the guilt phase of
Holley’s trial. But the same issue was raised again during the sentencing phase of the trial, and
the court held a chambers meeting outside the jury’s hearing. The State wanted the statements
admitted; Holley wanted them excluded again for a number of reasons.
The court acknowledged its prior ruling that the Shelly evidence “wasn’t relevant to
the charge” during the guilt phase, but nonetheless allowed the statements to come in during
the sentencing phase through Investigator Joni Clark and Dusty Holley. (Shelly never
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appeared or testified during any phase of the trial.) Clark said that Holley told her that several
years ago, when he and Shelly were adults and living in the same house, he approached Shelly
while she was in his bed and touched her breasts on top of her clothes and that she had
laughed. Dusty Holley testified that she had “confronted Trenton about something with
Shelly,” but he didn’t tell her what he did, he only confirmed that it had happened.
This brings us to Holley’s appellate argument that the court erred by letting the jury
hear evidence of alleged prior sexual contact with his sister during the sentencing phase when
it was excluded during the guilt phase. We review a circuit court’s decision to admit evidence
in the penalty phase of a trial for an abuse of discretion. Id. The pivotal legal point, however,
is that we need not decide the issue presented because Holley cannot establish prejudice from
the admission of the evidence during sentencing. A defendant who is sentenced within the
statutory range—and short of the maximum sentence—cannot establish prejudice. Tate v.
State, 367 Ark. 576, 583, 242 S.W.3d 254, 261 (2006) (declining to decide alleged sentencing-
phase error because the defendant received less than the maximum sentence and therefore
could not establish a prejudicial error).
The statutory sentencing range for second-degree sexual assault is five to twenty years,
Ark. Code Ann. § 5-4-401(a)(3) (Repl. 2009), and Holley received seventeen years. Because
Holley cannot establish a sentencing-phase error as matter of law, we need not address whether
the circuit court erred in admitting the Holley/Shelly testimony in the first place.
IV. Conclusion
We affirm Holley’s conviction and the related sentence.
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Affirmed.
WYNNE and GLOVER, JJ., agree.
Blagg Law Firm, by: Ralph Blagg and Nicki Nicolo, for appellant.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for appellee.
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