Howerton v. State

Citations: 413 S.W.3d 861; 2012 Ark. App. 331; 2012 WL 1608574; 2012 Ark. App. LEXIS 437Docket: No. CA CR 11-646

Court: Court of Appeals of Arkansas; May 9, 2012; Arkansas; State Appellate Court

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Mark Stephen Howerton pled guilty in August 2010 to one count of computer child pornography and three counts of internet stalking of a child. At sentencing, the trial court imposed a 120-month suspended sentence for the child pornography charge and a total of 288 months of imprisonment for the three stalking charges, with specific terms running consecutively and concurrently. Additional conditions included participation in a sexual victimization program, compliance with sex-offender registration, and mandatory sex-offender treatment after release. During the suspended sentence, Howerton is prohibited from internet access and unsupervised contact with minors.

The factual background reveals that from March to August 2009, Howerton engaged in explicit online communications with an individual he believed to be a 14-year-old girl, who was actually a police detective. He sent her sexually explicit images, solicited nude photos, and attempted to arrange a meeting for sexual purposes. 

Prior to sentencing, Howerton filed a motion to exclude testimony from probation officer Mike Markum regarding his psychological state and objected to the presentence report and chat transcript. The court denied this motion. Testimonies from Howerton's sister and a partner were presented, both suggesting that they did not believe he posed a threat to minors, despite acknowledging his prior offenses of indecent exposure. The trial court affirmed the sentencing decision while modifying the judgment.

Appellant, previously convicted of indecent exposure in 1995 and 1999, testified about his online interactions with a person named “Chloe,” who he learned claimed to be fourteen. He admitted to having doubts about his conduct but denied actively seeking out teenagers, claiming that the online nature of the relationship made it feel unreal. Appellant acknowledged discussing the possibility of meeting “Chloe” but asserted he would have been frightened if she had shown up. He suggested that Detective Leaman instigated the chats and that “Chloe” played an aggressive role. Although he admitted to masturbating while chatting with “Chloe” and showed her a video of himself shortly after they began communicating, he denied trying to groom her for sexual acts. A therapist, Helen Miller, testified that appellant was lonely and seeking a relationship, believing he interacted with “Chloe” due to admiration rather than her age. Miller rated appellant’s risk level as moderate and did not see exhibitionism as a precursor to rape. After reviewing various documentary evidence, the trial court pronounced appellant's sentence. Appellant later filed an objection to the length and conditions of his sentence, claiming the trial court abused its discretion by admitting cumulative evidence at sentencing that was not relevant or presented during the guilt phase. He argued that according to Arkansas law, only evidence presented during the guilt phase should be considered for sentencing, contrasting this with the broader allowance of relevant evidence established in prior case law.

The appellant's argument is flawed because the legislature allows for various types of evidence to be considered in sentencing, including evidence relevant to guilt from the first stage of the trial. The transcript from the appellant's chats with "Chloe" was crucial for the trial court to assess his credibility, as it contained significant details absent from the agreed statement of facts. The appellant had made numerous incriminating statements during the chats, expressing sexual attraction to "Chloe," discussing a desire for a relationship, and indicating a willingness to engage in sexual acts with her, despite her being fourteen years old. Although the transcript's content could be seen as prejudicial, its probative value was deemed to outweigh this concern, justifying its admission as evidence by the trial court.

Additionally, the appellant contends that the trial court erred by allowing opinions from Mr. Markum in the presentence report, claiming they exceeded what is permissible under Arkansas law, as Markum was not qualified as an expert. Markum's report suggested that the appellant lacked a conscience regarding his behavior, was grooming "Chloe" for sex, and exhibited traits of exhibitionism, which he noted could be indicative of potential for future sexual offenses. According to Arkansas Code Annotated section 5-4-102, presentence investigations must consider various aspects of the defendant’s background and behavior, allowing for relevant opinions to be included.

Appellant's argument equates Mr. Markum's report with expert testimony; however, the court did not admit it as such, assuring appellant it would weigh the report appropriately. Appellant was aware of the report's contents and presented contradictory testimony from Ms. Miller. The trial court acted within its discretion in admitting the presentence report. Appellant's claim that the trial court abused its discretion in sentencing him beyond the guidelines is not permissible on appeal, as he failed to assert evidentiary errors or illegal aspects of his sentence, which are the only exceptions under Arkansas law for appealing after a guilty plea. His request for a modification based on the Arkansas Sentencing Guidelines does not constitute an appealable issue. Furthermore, appellant's challenge against a ten-year internet ban post-release is also barred from appeal as it does not fit the exceptions. Although the appeal points are affirmed, a review of the trial court's judgment revealed an illegal condition requiring appellant to complete the Reduction of Sexual Victimization Program during incarceration, which the court cannot impose. Consequently, the judgment is affirmed with modifications to remove this requirement.