                                  Cite as 2017 Ark. App. 90

                 ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                       No. CR-16-516


                                                  Opinion Delivered   February 15, 2017
GREGORY WAYNE FINFROCK
                                                  APPEAL FROM THE WASHINGTON
                               APPELLANT          COUNTY CIRCUIT COURT
                                                  [NO. 72CR-2014-2195]
V.
                                                  HONORABLE MARK LINDSAY,
STATE OF ARKANSAS                                 JUDGE
                                 APPELLEE
                                                  AFFIRMED



                          N. MARK KLAPPENBACH, Judge

       Appellant Gregory Wayne Finfrock was convicted by a jury in Washington County

Circuit Court of two counts of rape and one count of sexual indecency with a child. The

charges were based on allegations that appellant, a man in his forties, digitally and orally

penetrated the vagina of a twelve-year-old girl, MA; that appellant had MA place appellant’s

penis in her mouth; that appellant sent nude photographs of himself to MA; and that appellant

exposed himself in person to MA. Appellant admitted that he had committed sexual crimes

against MA, the daughter of appellant’s friend who lived next door. Appellant was sentenced

by the jury to 30 years in prison on each count of rape and to 6 years in prison on the count

of sexual indecency with a child.1 The trial judge imposed consecutive sentences, resulting

in a total term of 66 years of incarceration. Appellant appeals, contending that the trial court

       1
        The sentencing range considered by the jury for each count of rape was 25 to 40
years, or life imprisonment. The sentencing range considered by the jury for the count of
sexual indecency with a child was not more than 6 years in prison, a fine of up to $10,000,
or a combination of both.
                                  Cite as 2017 Ark. App. 90

abused its discretion in refusing his request to give the jury certain model jury instructions

during the sentencing phase that pertained to concurrent and consecutive sentences, to

transfer and parole eligibility, and to application of the 70 percent rule. We affirm the trial

court’s discretionary decision.

       We will not reverse a trial court’s decision to give or reject a jury instruction unless the

court abused its discretion. Gay v. State, 2016 Ark. 433, __ S.W.3d __; Akers v. State, 2015

Ark. App. 352, 464 S.W.3d 483. Abuse of discretion is a high threshold that does not simply

require error in the trial judge’s decision but requires that the trial judge acted improvidently,

thoughtlessly, or without due consideration. Craigg v. State, 2012 Ark. 387, 424 S.W.3d 264;

Squyres v. State, 2015 Ark. App. 665, 476 S.W.3d 839. Additionally, absent a showing of

prejudice, we will not reverse. Miller v. State, 97 Ark. App. 285, 248 S.W.3d 487 (2007).

       During trial, but outside the presence of the jury, the prosecuting attorney, the defense

attorney, and the trial judge discussed the matter of jury instructions. The prosecuting

attorney asserted that the State “would rather not have” the model jury instructions on

nonbinding recommendations for consecutive sentences or on parole eligibility. Defense

counsel argued that the jury should be aware of the model jury instructions regarding

recommendations for consecutive sentences, stating that

       [the jury should have] the opportunity to decide that without guessing because I don’t
       want them back in the jury room wondering . . . . If they’ve got a term of years, I
       want to be able to talk to them in sentencing how the math is going to work out…
       at least I can talk about it at sentencing that they have some options . . . the fact that
       it’s not binding, you [the trial court] still have the ultimate authority and discretion to
       give him whatever it is if they come back with some numbers [of years]. . . . I would
       like to be able to address that to them so that they don’t go back there and get
       confused.


                                                2
                                  Cite as 2017 Ark. App. 90

With regard to instructing the jury regarding parole eligibility, defense counsel stated that it

was the same argument and that he did not want the jury to think appellant would serve only

half of a sentence prior to being released from prison. Defense counsel stated that he wanted

the jury to make the best decision for the community knowing the parameters of how the

sentence would play out, that this was relevant to sentencing, and that he wanted the

opportunity to talk to the jury about those instructions. The trial judge stated that he would

think about it during a break in the proceedings and make a ruling when they reconvened.

       After the break, the trial judge announced which jury instructions he intended to give

the jury, which did not include the model jury instructions that the defense wanted. Defense

counsel proffered those four jury instructions as defense exhibits, which read as follows:

       (1) AMCI2d 9112- Stage Two: Consecutive Sentence Recommendation–
              You have convicted Gregory Wayne Finfrock of more than one offense, and
       you may sentence him to a term of imprisonment on each offense. If you sentence
       him to more than one term of imprisonment, you may also make a recommendation
       that any two or more terms of imprisonment be consecutive. A sentence to
       consecutive terms of imprisonment means that the terms of imprisonment will be
       added together to determine the total term of imprisonment.
              You are advised that a recommendation by you that terms of imprisonment be
       consecutive will not be binding on the court.

       (2) AMCI2d 9318- Stage Two: Consecutive Sentence Recommendation–
              If you sentence Gregory Wayne Finfrock to two or more terms of
       imprisonment, you may make ONE of the following recommendations:
              ____ We, the Jury, recommend that all of the terms of imprisonment be
       consecutive.
              _____ We, the Jury, recommend that none of the terms of imprisonment be
       consecutive.
              ____ We, the Jury recommend that the terms of imprisonment for the
       following offenses be consecutive: __________________________

                                            _____________________
                                            Foreman


                                               3
                                 Cite as 2017 Ark. App. 90

       (3) AMCI2d 9401– Transfer Eligibility: Felonies Below Transfer Eligibility
       Line on Sentencing Grid–
                In your deliberations on the sentence to be imposed, you may consider the
       possibility of the transfer of Gregory Wayne Finfrock from the Department of
       Correction to the Department of Community Correction. After he serves 1/3 of any
       term of imprisonment to which you may sentence him, he will be eligible for transfer
       from the Department of Correction to the Department of Community Correction.
       If transfer is granted, he will be released from prison and placed under post-prison
       supervision. The term of imprisonment may be reduced further, up to 1/6 of any
       period you impose, if he earns the maximum amount of meritorious good time during
       his imprisonment.
                Meritorious good time is time-credit awarded for good behavior or for certain
       achievements while an inmate is confined in a Department of Correction or
       Community Correction facility, or in a jail while awaiting transfer to one of those
       facilities. An inmate may be awarded up to one day for every day served. Accrual of
       meritorious good time does not reduce the length of a sentence but does decrease the
       time the defendant is required to be imprisoned before he becomes eligible for transfer
       to community supervision, under which the remainder of his sentence will be served.

       (4) AMCI2d 9404-A– Release Eligibility: Seventy Percent Law [Act 570]–
               In your deliberations on the sentence to be imposed, you may consider the
       possibility that Gregory Wayne Finfrock will be paroled or transferred to community
       correction supervision. Eligibility for parole or transfer to community correction
       supervision is as follows:
                                             I.
               Rape is punishable by life imprisonment, or a term of years. Persons under
       sentence of life imprisonment are not eligible for parole or transfer to community
       correction supervision.
                                             II.
               If you sentence Gregory Wayne Finfrock to imprisonment to a term of years,
       he will be eligible for parole or transfer to community correction supervision after he
       serves seventy percent (70%) of the term of his sentence. This percentage of
       imprisonment will not be reduced by the earning of meritorious good time during his
       imprisonment.

       The State reiterated that it believed these instructions were unnecessary and confusing

to the jury. The trial judge decided that the nonbinding-recommendation instructions would

not be given because they did not serve any purpose in this particular case, he did not want

the jury to be confused, nor did he want the jury “to feel, well, why are we even here.” As

                                              4
                                     Cite as 2017 Ark. App. 90

to the parole-eligibility instruction and the 70 percent rule, the State again asserted that these

were unnecessary and potentially confusing to the jury. The trial judge agreed with the State,

rejecting those jury instructions.

       During deliberations, the jury sent out a written question, which read, “For each count

of rape, does the sentence run concurrent or consecutive?” The trial judge proposed to both

attorneys that he inform the jury to not consider a rule of law that was not in the jury

instructions that had been given, but the other alternative was to give the jury instruction on

nonbinding recommendations, which the judge thought was “destructive to the jury system.”

The State was in agreement that the jury instruction should not be given. At that point,

defense counsel stated, “I think that we’ll just at this point, go with the Court on the way it’s

done. . . . I feel comfortable under these circumstances that the jury will make the – they’ll

give us a sentence with the instructions they have[.]” The jury was brought to open court,

and the trial judge responded to the question by telling them to refer to the jury instructions

already given, which included an admonition not to consider any rule of law that was not

included in those jury instructions.2 The jury deliberated accordingly, and it sentenced

appellant to the two 30-year sentences for rape and to the 6-year sentence for sexual

indecency with a child.

       As appellant’s sentence was pronounced, the trial judge remarked to appellant that he

had taken something from this girl that the justice system could not restore to her; that the

goal of the justice system was to punish, reform, and deter the defendant but also to deter



       2
      The jury had been instructed that it “should not consider any rule of law with which
you may be familiar unless it is included in my instructions.”
                                              5
                                   Cite as 2017 Ark. App. 90

others from committing the same crimes; that appellant admittedly knew that all the sexual

behaviors toward this girl were wrong but did not stop, despite several opportunities to do

so; and that appellant’s concern was obviously for himself and not the harm caused to this

child.    The trial judge imposed the jury’s sentences, deciding that they should run

consecutively. This appeal followed.

         In determining whether the trial court erred in refusing an instruction in a criminal

trial, the test is whether the omission infects the entire trial such that the resulting conviction

violates due process. Hickman v. State, 372 Ark. 438, 277 S.W.3d 217 (2008); Henderson v.

State, 349 Ark. 701, 80 S.W.3d 374 (2002); Bell v. State, 2014 Ark. App. 458. We hold that

appellant’s rights to due process were not violated. Just because an appellant’s proffered

instructions contain correct statements of the law does not mean that it was error for the trial

court to refuse to give them. Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008). Appellant

has failed to demonstrate reversible error. The trial judge clearly took time to consider

defense counsel’s request for these particular instructions, and he exercised his discretion in

declining to give them. Appellant effectively consented to the trial court’s action when the

question was presented by the jury during deliberations, and appellant has not demonstrated

an abuse of discretion.     Compare Bell, supra (affirming refusal to instruct the jury on

nonbinding alternative sentencing recommendations); Benjamin v. State, 102 Ark. App. 309,

285 S.W.3d 264 (2008) (same). Moreover, pursuant to Arkansas Code Annotated section

16-97-103(1) (Repl. 2016), evidence relevant to sentencing “may” include the law applicable

to parole, meritorious good time, or transfer. The word “may” is not mandatory. Walden


                                                6
                                  Cite as 2017 Ark. App. 90

v. State, 2012 Ark. App. 307, 419 S.W.3d 739. See also Carroll v. Hobbs, 2014 Ark. 395, 442

S.W.3d 834 (holding that the supreme court had repeatedly held that the Arkansas

Department of Correction, not the sentencing court, determines parole eligibility). Appellant

waived any objections he had regarding the trial court’s failure to give these instructions when

his attorney stated, in response to the jury’s query, that he “felt comfortable” that the jury

would “give us a sentence with the instructions they have.” Appellant’s attorney did not

request again that these jury instructions be given to the jury, acquiescing to the trial judge’s

actions. For the foregoing reasons, we affirm.

       Affirmed.

       GRUBER , C.J., and GLOVER , J., agree.

       Knutson Law Firm, by: Gregg A. Knutson, for appellant.

       Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.




                                               7
