Cite as

ARKANSAS COURT OF APPEALS Elizabeth Perry I attest to the accuracy and DIVISION III integrity of this document No. CR-20-576 2023.07.07 10:11:38 -05'00' 2023.003.20215 Opinion Delivered September 8, 2021

TRISTAN TIARKS APPEAL FROM THE BENTON APPELLANT COUNTY CIRCUIT COURT [NO. 04CR-19-75]

V. HONORABLE ROBIN F. GREEN, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

LARRY D. VAUGHT, Judge

Tristan Tiarks appeals the sentencing order entered by the Benton County Circuit

Court convicting him of the rape, aggravated assault, and second-degree domestic battery of

three-year-old SW, the daughter of his girlfriend, Leah Brasuell, and sentencing him to thirty

years’ imprisonment. On appeal, he argues that the circuit court abused its discretion by (1)

allowing the testimony of expert witness Dr. Karen Farst to bolster the expert-witness

testimony of nurse practitioner Heather Dawn Hannah; (2) allowing the State to cross-examine

Tiarks’s mother (Gail Harris) about two prior allegations of misconduct; (3) failing to order a

mistrial after evidence was introduced that Tiarks “matched the profile of a sex offender”; (4)

allowing the State to make two improper arguments in closing argument; and (5) failing to

grant Tiarks a new trial as a result of the cumulative errors made by the circuit court. We

affirm. Tiarks does not challenge the sufficiency of the evidence supporting his convictions;

therefore, only a brief summary of the trial testimony is provided here. Leah Brasuell, who has

three daughters (AW, MW, and SW), testified that she was engaged to Tiarks, who has three

children of his own (MT, KT, and AT). On January 10, 2019, Brasuell and Tiarks were

planning a birthday party for KT. Brasuell said that around 6:00 p.m., she and MW went to

Walmart to pick up supplies for the party and that she left SW with Tiarks at his home. When

Brasuell returned around 7:15 p.m., Tiarks told her that SW had fallen asleep while she was

playing, so he put her to bed. Brasuell did not check on SW.

The next morning, Brasuell went to the bathroom and saw Tiarks wiping SW’s bottom.

He told Brasuell that there was blood on SW’s bottom. Brasuell stated that she picked up SW,

put her on a bed, spread her legs, and saw bright red blood coming from her vagina. Later that

morning, Brasuell asked SW what happened the night before, and SW said that Tiarks put a

towel around her neck. SW denied that Tiarks put something in her bottom. Brasuell sought

medical treatment for SW at the emergency room in Bella Vista, Arkansas.

Emergency-room nurse Sarah Hansen testified that she performed the initial

examination of SW on January 11. Hansen said that SW had petechiae—small red spots from

burst blood vessels that are caused by bearing down, squeezing, or cutting off airways for a

prolonged period of time—around her eyes and face and red ligature marks on her neck, all

of which were medically consistent with her report that a towel had been wrapped around her

neck. Hansen said the police were notified, and SW was referred to the Children’s Advocacy

Center (CAC) in Rogers, Arkansas, for a sexual-assault examination.

2 Heather Dawn Hannah, a nurse practitioner at the CAC, testified that she performed

a videotaped forensic examination of SW on January 11. Hannah testified that she observed

redness and petechiae on SW’s face and neck, bright red blood in SW’s underwear, dried blood

on the genital area, and a fresh tear that was still bleeding that extended past the external genital

organ into the vagina. Hannah stated that the vaginal injury had occurred within the past

twenty-four to thirty-six hours. When Hannah touched SW’s genitals to determine the severity

of the injuries, SW became upset, and Hannah stopped the exam. Hannah then consulted with

Dr. Karen Farst, a child-abuse pediatrician at Arkansas Children’s Hospital in Little Rock.

After the consultation, Hannah recommended SW undergo a sedated examination at Arkansas

Children’s Hospital–Northwest (ACHNW), a CT scan to check for brain damage, and a full-

body skeletal survey to check for broken bones. At ACHNW, Hannah performed a second

genital examination of SW while she was under sedation. Hannah discovered that SW’s genital

tear extended past the posterior fourchette, through the vestibule, fossa, hymen, and into the

vaginal floor. Hannah compared the injury to a first-degree tear from childbirth.

Dr. Farst testified that she was contacted by Hannah on January 11 for a consultation

on SW’s treatment. Dr. Farst, who watched the video of Hannah’s examination of SW, stated

that she observed active bleeding in SW’s vagina but could not determine the depth or source

of the injury. Dr. Farst said that she recommended that further examination under sedation

be conducted at ACHNW along with the skeletal survey and CT scan. From her review of the

video, Dr. Farst believed that the vaginal injury had occurred within twenty-four to thirty-six

hours of the examination.

3 Tiarks testified that on the night of January 10, he watched SW while Brasuell and MW

went to Walmart. Tiarks said while they were gone, SW fell asleep, and he put her to bed. The

next morning, he woke SW up and took her to the bathroom and saw blood on her bottom.

Tiarks agreed that SW had been raped, that it occurred within twenty-four to thirty-six hours

of her medical examinations, and that she had no neck or vaginal injuries when he put her to

bed on January 10. However, he denied having harmed her. He also denied that he was the

only person with SW during the time period in question.

The jury found Tiarks guilty of rape, aggravated assault, and second-degree domestic

battery. This appeal followed.

Tiarks’s first argument on appeal is that the circuit court abused its discretion by

allowing the testimony of expert witness Dr. Farst to bolster the expert-witness testimony of

nurse practitioner Hannah. He contends that Dr. Farst did not examine SW herself but merely

watched the video of Hannah’s examination of SW, then Dr. Farst testified about what

Hannah saw. Tiarks argues that Dr. Farst did not offer any facts, data, or conclusions of her

own. Tiarks further asserts that he suffered prejudice by the admission of Dr. Farst’s testimony

because it bolstered Hannah’s testimony that established the timing of SW’s injuries, which

was when she was alone with Tiarks.

We review the admission of expert testimony under an abuse-of-discretion standard.

Pafford v. State,

,

. The Arkansas Supreme Court

has said that circuit courts have broad discretion and that a circuit court’s ruling on the

admissibility of evidence will not be reversed absent an abuse of that discretion.

. To qualify as an abuse of discretion, the circuit court must have acted improvidently,

thoughtlessly, or without due consideration.

537 S.W.3d at 309.

The test for admissibility of expert testimony is whether it will aid the trier of fact in

understanding the evidence or in determining a fact in issue. Ark. R. Evid. 702 (2021).

However, one of the functions of the jury is to determine the credibility of witnesses, and

expert testimony on the credibility of witnesses is an invasion of the jury’s province. Hinkston

v. State,

,

(2000). In Hinkston, our supreme court affirmed

the circuit court’s exclusion of expert-witness testimony that commented on the credibility of

the appellant.

. Likewise, an expert’s or a witness’s testimony opining or

directly commenting on the truthfulness of a victim’s statement or testimony is generally

inadmissible. Beard v. State,

,

.

In support of his argument, Tiarks relies on Huawei Techs. Co. v. Samsung Elecs. Co.,

(N.D. Cal. 2018). In Huawei, the district court excluded the expert testimony

of an economist that was offered to “vouch” for or support the methodology used by the

same parties’ expert accountant.

. While Huawei stands for the proposition that an

expert witness’s testimony that comments on or bolsters the methodology used by another

expert witness is inadmissible, Tiarks’s reliance on this case is misplaced because Dr. Farst’s

testimony was not offered to bolster Hannah’s testimony or comment on her truthfulness or

credibility.

Dr. Farst observed SW’s injuries via the videotape of her examination. Dr. Farst

explained that SW suffered a vaginal-penetration injury that was still bleeding and that the

bleeding obscured her view and prevented her from determining the depth and severity of the

5 injury. Dr. Farst stated it was necessary to determine the depth and severity of the injury in

case SW required abdominal or rectal surgery. On the basis of her findings, Dr. Farst

recommended to Hannah that SW be transferred to another facility for a sedated vaginal

examination, a CT scan, and a full-body skeletal survey. Therefore, Dr. Farst’s testimony was

offered to explain SW’s course of treatment. While Dr. Farst also testified about the cause and

timing of SW’s injuries, she did not “parrot” Hannah’s conclusions. Dr. Farst’s causation and

timing opinions were her own and were required in order for her to formulate a treatment

plan for SW.

Because Dr. Farst’s testimony was clinical in nature, was based on her own

observations, and did not comment on Hannah’s findings or her credibility, it is permissible.

Barnum v. State,

,

(affirming admission of expert

testimony of doctor that rendered a medical explanation based on the findings of the physical

examination she performed on the victim rather than opining on the victim’s truthfulness).

On these facts, we cannot say the circuit court acted thoughtlessly and abused its discretion in

permitting Dr. Farst’s testimony.

Tiarks’s second argument on appeal involves the testimony of his mother, Gail Harris,

who was a defense witness. On direct examination, Harris was asked about Tiarks’s reputation

for peacefulness in the community, and Harris testified, “There’s never been a problem out of

him ever. He’s a mentor and a healer of people and that’s what he loves.”

The State argued that Harris’s testimony opened the door to his being asked about a

2012 allegation of misconduct made by one of Tiarks’s physical-therapy patients and about

6 allegations in 2018 of sexual misconduct against his children made by his ex-wife, Jakesa. The

circuit court agreed and allowed the State to question Harris about these prior allegations.

The State then asked Harris if she was aware that in 2018, KT had said that Tiarks

touched her vagina in the morning sometimes and that AT, who was two years old at the time,

came home from Tiarks’s house bleeding from his anus. Harris said no. The State also asked

Harris if she was aware that in 2012, Tiarks had his physical-therapy license suspended after a

nineteen-year-old patient complained that he improperly placed tape near her vagina. Harris

answered that she was aware of it and that Tiarks’s license was not suspended. She further

stated that the 2012 incident did not change her opinion of her son: “[H]e’s a mentor and a

healer. I don't take that back.” On redirect, Harris clarified that Tiarks was placed on probation

following the 2012 incident.

Tiarks argues on appeal that the circuit court abused its discretion when it allowed the

State to cross-examine Harris about the 2012 and 2018 allegations. He claims that the

admission of this evidence was prejudicial because it served to portray him as a “person with

a background of perverse sexual activity who had been accused of improper conduct and at

least once punished for it.”

Our supreme court has recognized that by producing a character witness, the defendant

opens the door to evidence that might otherwise have been inadmissible. Smith v. State,

,

(1994). Arkansas Rule of Evidence 405 clearly provides

that in cross-examining a defendant’s character witness, it is permissible to inquire into the

witness’s knowledge of specific instances of conduct.

. Such cross-

examination tests the witness’s knowledge of the defendant’s reputation and that, in turn, may

7 go to the weight to be given his opinion.

. Further, Rule 405 places no

limit, other than relevancy, on the kinds of instances of misconduct with respect to which

cross-examination may occur.

.

In Smallwood v. State,

,

(1996), the circuit court

found that the appellant, who had been convicted of rape and burglary, opened the door to

otherwise inadmissible evidence of other prior violent acts or threats after he testified that he

did not threaten the victim with a knife because he was “not that type of person.” On appeal,

the supreme court affirmed, holding that by claiming that he was not the “type of person” to

threaten someone with a knife, the appellant placed his propensity toward violence in issue.

.

In the case at bar, we hold that the circuit court did not abuse its discretion in ruling

that Tiarks opened the door to the questioning about the prior allegations of misconduct after

Harris testified that there had “never been a problem out of [Tiarks] ever” and that he is “a

mentor and a healer of people.” This evidence tested Harris’s knowledge of her son’s character

and goes to the weight to be given to her opinion. Accordingly, we affirm on this point.

For his third argument on appeal, Tiarks contends that the circuit court abused its

discretion when it failed to order, sua sponte, a mistrial during the testimony of Tim Brasuell,

Leah’s brother. Tim was called as a witness for the defense, and during his direct testimony,

he stated that he had a “very odd feeling about [Tiarks] pretty early on.” Tim said that Tiarks

tried “way too hard to be Mr. Perfect.” On cross-examination by the State, Tim testified that

he had previously been a police officer and that part of his job was to monitor sex offenders.

Tim attributed the “odd feeling” he had about Tiarks to being around a lot of sex offenders.

8 On redirect, the defense pressed Tim on this issue, and Tim stated that he did not know that

Tiarks was a sex offender, but “I knew there was something wrong. I knew there was

something odd about him that just wasn’t right.”

Tiarks contends that Tim’s sex-offender “profile testimony” was improper because it

invaded the province of the jury by mandating a legal conclusion and because it was unduly

prejudicial. In making this argument, Tiarks admits that his trial counsel failed to make a

contemporaneous objection to the “profile evidence,” yet Tiarks contends that the testimony

was so flagrant and so highly prejudicial that the court had the duty on its own motion to order

a mistrial under the third Wicks exception.

The law is well settled that to preserve an issue for appeal, a defendant must object at

the first opportunity. Chunestudy v. State,

,

. A party who

does not object to the introduction of evidence at the first opportunity waives such argument

on appeal.

408 S.W.3d at 61–62. However, in Wicks v. State, the supreme court approved

four limited exceptions to the contemporaneous-objection rule to preserve an issue for review:

(1) a circuit court’s failure to bring a matter essential to consideration of the death penalty to

the jury’s attention; (2) when error is made by the circuit court when counsel has no knowledge

of the error; (3) when the circuit court has a duty to intervene and correct flagrant and highly

prejudicial errors; and (4) under Ark. R. Evid. 103(d) providing that appellate courts are not

denied review of errors affecting substantial rights even if not brought to the attention of the

circuit court.

, 785–87,

, 369–70 (1980).

In Baumann v. State, this court stated that the third Wicks exception is a narrow one that

has thus far been applied only in cases where the fundamental right to a jury trial is at issue.

9

,

. The third Wicks exception has been applied

very rarely to matters such as (1) the right to a twelve-person jury, Grinning v. City of Pine Bluff,

,

(1995); (2) the right to a trial by jury, Calnan v. State,

,

(1992), and Winkle v. State,

, 717–18,

, 591 (1992); (3) violation of Arkansas Code Annotated section 16-89-125(e), Goff

v. State,

,

, 45–46 (1997); and (4) statements by a prosecutor in

voir dire that have the effect of shifting the burden of proof, Anderson v. State,

,

(2003).

In contrast, the third Wicks exception was not applied (1) to consider possible

prosecutorial errors in relation to cross-examination, Vaugh v. State,

, 227,

, 789 (1999); (2) to privileged testimony, Hale v. State,

,

(2000); or (3) in closing arguments, Chunestudy,

,

.

We decline to apply the very narrow third Wicks exception in this case. Tim’s testimony

did not infringe on Tiarks’s fundamental right to a jury trial. Rather, the challenge to Tim’s

testimony involves a determination of whether it was probative or unduly prejudicial—

evidentiary matters for which contemporaneous objections are required.

Tiarks’s reliance on Brunson v. State,

,

(2002), is misplaced.

In Brunson, our supreme court reversed and remanded the appellant’s convictions because the

circuit court allowed an expert witness to present profile testimony—factors that determine

when a batterer will escalate into a murderer—that mandated a conclusion and was unduly

prejudicial. However, in that case, contemporaneous objections to the profile evidence were

10 made: defense counsel objected to the qualification of the witness as an expert, objected to

her testimony on grounds of surprise and a discovery violation, and moved for a mistrial two

times.

,

. Assuming arguendo that Tim’s testimony could be

considered “profile evidence,” no contemporaneous objections to that evidence were made.

Accordingly, we hold that the third Wicks exception does not apply to Tim’s testimony.

Without a contemporaneous objection to his testimony, Tiarks’s third point on appeal

challenging that evidence is not preserved.

For his fourth point on appeal, Tiarks argues that the circuit court abused its discretion

when it allowed the State to make two improper arguments during closing argument: Tiarks

must have been guilty of raping SW because allegations of sexual abuse had been made against

him in 2018, and Tiarks should have called his son MT to testify to establish Tiarks’s

innocence. 1 However, Tiarks concedes that no contemporaneous objections were made

during the State’s closing argument. He again contends that the third Wicks exception applies

and that no contemporaneous objection was required.

Absent a contemporaneous objection at trial, we will not review alleged errors in the

State’s closing argument. Lard v. State,

,

. As set forth

above, the third Wicks exception is limited to only those errors affecting the very structure of

the criminal trial, such as the fundamental right to a trial by jury, the presumption of innocence,

and the State’s burden of proof.

,

. The remarks Tiarks complains

of here do not rise to this level; therefore, the Wicks exception does not apply.

1When police searched Tiarks’s home, they found bedding in the washing machine.

The defense argued at trial that the bedding was not the bedding SW had slept on the night before; rather, it was the bedding of Tiarks’s son MT, who had wet the bed the night before.

11 Moreover, the cases on which Tiarks relies—Ayala v. State,

,

(2006);

and Grinning, supra—do not support his contention.

None of these cases applied the third Wicks exception to a prosecutor’s closing argument.

Rather, our supreme court has consistently refused to apply the third Wicks exception to a

prosecutor’s allegedly improper closing argument absent a contemporaneous objection. Lard,

,

; Buckley v. State,

,

(2002). Because there were no contemporaneous objections to the State’s closing arguments,

Tiarks’s challenge to those arguments on appeal are not preserved for our review.

Tiarks’s final point on appeal is that he is entitled to a new trial as a result of the

cumulative errors made by the circuit court. For support, he relies on Dillon v. State,

,

(1993) (Dillon I), wherein our supreme court reversed and remanded the

appellant’s rape conviction on the basis of the prosecutor’s cumulative errors that crafted a

“mosaic” of the appellant as one who forced sex on women and that denied the appellant a

fair trial. Tiarks contends that the circuit court—by admitting improper evidence during the

testimony of Tim Brasuell and Gail Harris and by allowing the State to make improper

arguments during closing argument—allowed the State to create a “mosaic” of Tiarks as a

pedophile and sexual deviant. We reject this argument.

First, an appellant asserting a cumulative-error argument must show that there were

objections to the alleged errors individually and that a cumulative-error objection was made to

the circuit court and a ruling obtained. Munson v. State,

,

(1998). In this case, Tiarks not only failed to raise objections to two of his points on appeal

12 but also further failed to make a cumulative-error argument below. Therefore, this argument

is not preserved for appeal.

Citing the dissent in Dillon I, Tiarks contends that a cumulative-error objection is not

required at trial. The majority opinion in Dillon I is clear that defense counsel objected at every

instance of alleged prosecutorial misconduct and moved for a mistrial on multiple occasions.

However, the majority opinion is not clear whether the appellant made a cumulative-error

argument on appeal. 2 However, the confusion in Dillon I was cleared up in Dillon v. State,

,

(1994) (Dillon II). On remand, the appellant was again

convicted of rape, and he raised six issues on appeal—one of which was the cumulative-error

argument. The supreme court rejected the argument, holding that the record did not reveal

that the appellant raised the cumulative-error argument to the circuit court or move for a new

trial on the same grounds. Dillon II,

, 877 S.W.2d at 920–21.

Affirmed.

VIRDEN and BARRETT, JJ., agree.

Cadell Reynolds, P.A., by: Josie N. Graves; and Brian G. Brooks, Attorney at Law, PLLC, by:

Brian G. Brooks, for appellant.

Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.

2Justice Corbin highlighted this point in his dissent. Dillon I,

,

(Corbin, J., dissenting).

13