                                Cite as 2014 Ark. App. 557



                 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




                                               2
                                 Cite as 2014 Ark. App. 557


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


                                               3
                                 Cite as 2014 Ark. App. 557


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).




                                              4
                                Cite as 2014 Ark. App. 557


       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.




                                              5
                                   Cite as 2014 Ark. App. 557


         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.


                                                 6
                                 Cite as 2014 Ark. App. 557


       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


                                               7
                                   Cite as 2014 Ark. App. 557


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.


                                                8
                         Cite as 2014 Ark. App. 557


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.




                                      9
