dissenting. Notwithstanding the “fundamental rule” that arguments will not be considered where the supporting testimony or evidence has not been abstracted, see Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999), I would reverse the result reached below and remand this case to the trial court for resentencing. I do not condone appellant’s conduct in molesting children. However, our supreme court has held that it is fundamentally unfair to punish a person, even a child molester, based on evidence of conduct for which he was neither convicted nor charged. Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999).
Donald Atchison has appealed the sentence he received in the Pulaski County Circuit Court of five years’ imprisonment for arson and ten years’ imprisonment for sexual abuse in the first degree, to be served consecutively. Atchison specifically challenged the sentencing determination for sexual abuse and argues that the trial court erred by allowing the State to introduce evidence during the sentencing phase of subsequent criminal activity for which he had not been convicted. He pled guilty to the sexual-abuse charge based on the allegation that from January 1, 1997, through April 30, 1997, appellant engaged in sexual contact with a person, not his spouse, who was less than fourteen years old. The victim was his girlfriend’s four-year-old son. Appellant’s girlfriend testified about the effect of the incident on herself and her children. Appellant did not object to that victim-impact testimony.
During the sentencing phase the State — despite timely objections by defense counsel and cautioning by the trial judge — introduced evidence of a subsequent investigation involving appellant. Through testimony by a Little Rock detective, Jeff Wataski, the State introduced the statement of a Miranda rights form that Wataski read to appellant on March 11, 1998, in connection with charges in another case that he and Officer Mike Shepherd investigated based on allegations that appellant fondled a five-year-old child in North Little Rock and that police officers had discovered ten to twenty thousand pornographic pictures on appellant’s computer, many of which were of children. Defense counsel objected to the officer’s verbal account of the taped statement and argued that the tape should have been placed into evidence. The trial court agreed and called a recess to allow the State to introduce the tape, but the State never did so. The trial judge stated when he imposed sentencing that he would depart from the sentencing grid because of details in a presentence report.
Appellant was not charged in this case with any of the conduct that Detectives Shepherd and Wataski testified about involving other children. He certainly was not convicted based on that conduct; he entered a guilty plea only to the allegation that he molested the son of his girlfriend, not another child. It is quite revealing that the prosecution introduced evidence about alleged molestation of other children during the sentencing phase but never charged appellant concerning that conduct. Equally revealing is that the trial judge told counsel for the State before the testimony adduced through Wataski and Shepherd was introduced, “I think you’re committing reversible error . . . .” In overruling defense counsel’s relevance objection to Wataski’s testimony, the trial judge stated, “I think you’re right, Mr. Blair. Ms. Ator seems to think she’s right, so if I’m going to err, I guess I ought to err on the side of your argument, but she seems so sure that she’s correct I’m going to overrule your objection but let it be noted for appeal purposes.”
I reject the idea that a guilty plea exposes an accused to anything that the prosecution chooses to introduce during the sentencing phase, whether or not it is pertinent to the offense for which he was charged. The rights of an accused person are violated when such evidence is offered because the prosecution is not required to prove the allegations beyond a reasonable doubt before subjecting an accused to criminal punishment. If the prosecution is unwilling or unable to prove allegations of alleged criminal conduct beyond a reasonable doubt after affording the accused the right to confront those allegations during the guilt phase, it has no business trying to get the benefit of a conviction by tossing those unrelated allegations into the sentencing phase in a different case.
The fact that the presentence report mentioned the same allegations but was not challenged when offered into evidence does not erase the objections that were timely made and which should have been sustained. The presentence report was simply cumulative of evidence that had already been improperly admitted into evidence over timely objections. The fact that appellant’s sentence for the sexual-abuse charge was within the statutory range does not render the State’s conduct less objectionable or the trial court’s error harmless. Even the trial judge acknowledged that the prosecution was committing reversible error.
Our supreme court put this question clearly to rest in Walls v. State, supra, when it reversed Jack Walls’s sentence following his guilty plea to five counts of rape and a plea of nolo contendere to one count of rape. The trial judge sentenced Walls to two forty-year terms and four life terms in prison, to be served consecutively, following a sentencing hearing. At the sentencing hearing the trial judge permitted the State to introduce testimony from the grandmothers of Heath Stocks, one of the rape victims who was convicted of murdering his parents and sister. Stocks had pled guilty and been sentenced to life in prison without parole. The grandmothers testified about the murders, the victims of the murders, and the effects of those murders on their grandson (Stocks). Although the trial judge overruled defense objections, the supreme court reversed and remanded the case for re-sentencing. Justice Brown concluded the majority opinion as follows:
We hold that the circuit judge abused his discretion (1) when he allowed this testimony about the Stocks murders in as victim-impact evidence, and (2) when he held Walls responsible for those murders in fixing his sentence.
This issue really brings into sharp focus the protections afforded defendants in the criminal justice system. No matter how reprehensible the crimes committed, it is an article of faith in criminal law that we do not sentence for crimes that have not been proven. Nor should victim-impact evidence be used as a vehicle for testimony that Walls was an accessory to the murder of the Stocks family. We recognize how difficult a second sentencing hearing will be for the victims and their families. Nevertheless, if the criminal justice system is to have any credence at all, it must adhere to certain basic principles. It is unfair in the extreme for the sentencing judge to consider testimony of an uncharged, unproven crime for sentencing purposes under the aegis of victim-impact testimony.
Id. at 501, 986 S.W.2d at 403. (Emphasis added.)
Accordingly, I would reverse and remand this case for resen-tencing based upon the abuse of discretion committed by the trial judge. Even if he is to receive the maximum sentence permitted for his crime, fundamental fairness demands that appellant be sentenced for the crime he committed, not for other bad conduct for which he has not been tried or convicted, and which has no bearing on his punishment for molesting his girlfriend’s son.