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                  SUPREME COURT OF ARKANSAS
                                         No.   CR-16-703

                                                    Opinion Delivered: March   2, 2017

DANIEL STOVER
                                  APPELLANT APPEAL FROM THE POLK
                                            COUNTY CIRCUIT COURT
V.                                          [NO. 57CR-16-11]

STATE OF ARKANSAS                            HONORABLE JERRY RYAN,
                                    APPELLEE JUDGE


                                                    AFFIRMED.


                     COURTNEY HUDSON GOODSON, Associate Justice


        Appellant Daniel Stover appeals his convictions in the Pope County Circuit Court

 for sexually grooming a child, two counts of sexual assault in the first degree, sexual assault

 in the second degree, and rape. Stover was sentenced as an habitual offender and received

 life sentences for each of his first-degree sexual assault convictions, a sentence of life without

 parole for his rape conviction, and a total of twenty-six years’ imprisonment for his

 remaining convictions, with all sentences to be served consecutively. On appeal, Stover

 argues that the circuit court violated his due-process rights by allowing an ex post facto

 application of the habitual-offender ranges with regard to his life sentences for rape and for

 the two counts of first-degree sexual assault. We affirm.

        On January 19, 2016, Stover was charged with sexually grooming a child thirteen

 years of age or younger on or before January 1, 2015, in violation of Arkansas Code

 Annotated section 5-27-307 (Repl. 2013); second-degree sexual assault of a minor on or
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before January 1, 2015, in violation of Arkansas Code Annotated section 5-14-125; two

counts of first-degree sexual assault of a minor on or between January 2, 2015, and June 8,

2015, in violation of Arkansas Code Annotated section 5-14-124; and rape of a minor under

fourteen years of age on or before January 1, 2015, in violation of Arkansas Code Annotated

section 5-14-103. In addition, the State sought enhanced penalties on the first-degree sexual

assault charges under Arkansas Code Annotated section 5-4-501(c)(1) (Supp. 2015) and on

the rape charge under section 5-4-501(c)(3), based on Stover’s previous conviction for first-

degree sexual assault.

       The charges against Stover were based on the allegations of his minor stepson, H.C.,

that Stover had shown H.C. pornography and had engaged in sexual contact and deviate

sexual activity with H.C. when he was between eight and fifteen years of age. A detailed

recitation of the facts and evidence supporting the charges is unnecessary because Stover

does not challenge the sufficiency of the evidence on appeal.

       The jury trial was held on April 14, 2016. Prior to trial, Stover objected to the

enhanced sentencing ranges on the first-degree sexual-assault and rape charges. He argued

that the alleged sexual misconduct giving rise to the charges in this case occurred prior to

his September 16, 2015 conviction for first-degree sexual assault, an offense to which he

had pled guilty on June 8, 2015, and which involved his ex-wife’s niece. Stover asserted

that it would violate his due-process rights to subject him to an increased range of

punishment for conduct that occurred before the September 2015 conviction. The circuit

court took the motion under advisement at that time.




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       Stover renewed his objection during his directed-verdict motions, which were

denied by the circuit court. The jury convicted Stover of all of the charges against him, and

prior to the sentencing hearing, Stover’s counsel again raised the issue of the enhanced

sentences, stating:

       Your Honor, now that Mr. Stover has been convicted, I would renew the motion
       to object to the extended term of imprisonment based on prior convictions. I think
       in this case Mr. Stover- everyone agrees that the incidents that took place in this case
       took place before June 8, 2015, when he entered a plea to sexual assault in the first
       degree. I think that it would violate due process that he be subject to an enhanced
       term of imprisonment, specifically on the rape allegation and the sexual assault first
       degree allegations based on incidents that took place before he was convicted of any
       offense.
                                               ....
       So, I just don’t think that under the facts in this case that it would meet the due
       process requirements of notice No. 1 and 2, the fundamentals of fairness to Mr.
       Stover to be subjected to an extended term of imprisonment for incidents that took
       place before a prior conviction.

       The circuit court denied Stover’s objection, noting that the habitual-offender statute

makes no such distinction based on a timeline of the conduct underlying the offenses. Stover

then clarified that his objection was based on the due-process clauses of both the Arkansas

and the United States Constitutions, and “specifically notice and fairness as to the timing of

these incidents.” The circuit court ruled that there was no violation of Stover’s procedural

or substantive due-process rights under the circumstances in this case.

       Stover was sentenced by the jury to six years in the Arkansas Department of

Correction for sexually grooming a child, twenty years for second-degree sexual assault, an

enhanced sentence of two terms of life for the two counts of first-degree sexual assault, and

an enhanced sentence of life without parole for the rape charge. Based on the jury’s

recommendation, the circuit court ordered the sentences to be served consecutively. The


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sentencing order was entered on April 15, 2016, and Stover filed a timely notice of appeal

to this court.

       In his sole point on appeal, Stover argues that the circuit court erred by allowing the

State to request enhanced punishment based on conduct that occurred prior to the

conviction that was used for enhancement purposes. Specifically, he contends that his due-

process rights were violated by allowing an “ex post facto application of the enhancement,”

resulting in a punishment that he had no notice of at the time the offenses in this case were

committed. In support of his argument, Stover cites to article 1, § 10 of the United States

Constitution and article 2, § 17 of the Arkansas Constitution, both of which prohibit the

passage of an ex post facto law. He also cites to cases that discuss ex post facto violations.

       The State asserts that Stover’s ex post facto argument is being raised for the first time

on appeal and that it is therefore not preserved for our review. We agree. Stover argued

at trial that the State’s use of the sentence-enhancement provisions violated his due-process

rights, and he specifically requested a ruling based on the due-process clauses found in our

state and federal constitutions. At no time did Stover assert to the circuit court that the

application of these provisions violated the ex post facto clause of either constitution, as he

now does on appeal. As the State explains, the passage of an ex post facto law is a separate

concept from a circuit court’s application of a law without sufficient notice for due-process

purposes. See Rogers v. Tennessee, 532 U.S. 451 (2001) (stating that the federal constitution’s

due-process clause does not incorporate the specific prohibitions of the ex post facto clause,

which refers only to legislative acts and does not apply to judicial actions).




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         An appellant may not change the grounds for his argument on appeal and is instead

limited to the scope and nature of the objections presented at trial. Kinsey v. State, 2016

Ark. 393, 503 S.W.3d 772; Hampton v. State, 2014 Ark. 303, 437 S.W.3d 689. We have

held that even a constitutional argument must be raised to the circuit court and ruled upon

in order to preserve the issue for appellate review. Gooch v. State, 2015 Ark. 227, 463

S.W.3d 296. Thus, we do not address the merits of Stover’s argument on appeal.

                                          Rule 4-3(i) Review

         Because Stover received a life sentence, the record has been examined for all

objections, motions, and requests made by either party that were decided adversely to Stover

in compliance with Arkansas Supreme Court Rule 4-3(i), and no prejudicial error has been

found.

         Affirmed.

         Shane Ethridge, for appellant.

         Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.




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