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Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION I integrity of this document No. CR-20-424 2023.07.11 14:11:46 -05'00' 2023.003.20215 Opinion Delivered September 29, 2021

VASQUEZ HAYES APPEAL FROM THE MILLER APPELLANT COUNTY CIRCUIT COURT [NO. 46CR-16-13] V. HONORABLE CARLTON D. JONES, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

LARRY D. VAUGHT, Judge

Vasquez Hayes appeals the sentencing order entered by the Miller County Circuit Court

on May 17, 2017, convicting him of two counts of rape, kidnapping, aggravated residential

burglary, aggravated robbery, and two counts of theft and sentencing him to serve a total of

eighty years’ imprisonment in the Arkansas Department of Correction. On appeal, Hayes

argues that the circuit court abused its discretion in denying his motion for a mistrial after the

State referred to the complaining witness as “the victim.” Hayes also argues that the circuit

court abused its discretion in denying his motion for a mistrial or, alternatively, his motion for

continuance related to the State’s late disclosure of a witness. We affirm.

Hayes does not challenge the sufficiency of the evidence supporting his convictions;

therefore, only a short summary of the facts giving rise to this appeal is necessary. In the early

morning hours of November 22, 2015, a man forced his way into the home of AS. The man

raped AS at gunpoint in her bedroom, forced her to perform oral sex on him, took her against her will in her own vehicle to an ATM, and ordered her to withdraw money. AS was able to

escape from the vehicle and run for help. In the meantime, the man drove AS’s vehicle to a

convenience store where he used her debit card to make purchases. He later wrecked and

abandoned the vehicle. After an investigation, the Texarkana police arrested Hayes, who had

been a student of AS’s ten years prior.

During the three-day jury trial, eighteen witnesses testified, and a significant amount of

evidence was introduced including, but not limited to, Hayes’s statement to police, AS’s

medical records and sexual-assault-examination photographs, Arkansas State Crime

Laboratory reports with DNA results, crime-scene photographs, items from AS’s home, and

business security videos. At the conclusion of the trial, the jury found Hayes guilty of the

crimes stated above. This appeal followed.

Hayes’s first argument on appeal is that the circuit court abused its discretion when it

denied his motion for a mistrial during the State’s questioning of Brandi Wilson. Wilson was

the nurse at St. Michael’s Hospital in Texarkana who performed the sexual-assault examination

of AS and prepared a report of her findings. During Wilson’s testimony the State asked, “Does

your report reflect that the victim’s vulva was penetrated?”

Hayes’s counsel immediately objected and moved for a mistrial, contending that the

circuit court had previously granted a motion in limine prohibiting the parties from referring

to AS as “the victim.” The State responded that the reference to AS as the victim was an

accident, argued that Hayes suffered no prejudice as a result of the reference, and contended

that any prejudice suffered could be cured by a curative instruction.

2 The circuit court held that the State had violated the order to refrain from referring to

AS as “the victim”; but the court denied the motion for mistrial finding that (1) the State’s

question “was not . . . one that was directed for the purpose of violating the rule . . . [and] did

not appear to be a direct and contumacious flouting of this Court’s ruling,” and (2) Hayes did

not suffer “a manifest injustice . . . where [he] could not properly receive a fair trial.” The court

did, however, offer to give a curative instruction, which Hayes’s counsel declined.

On appeal, Hayes argues that the circuit court abused its discretion in denying his

motion for a mistrial on the basis of the State’s reference to AS as “the victim.” He argues that

the use of that term eroded his fundamental right to be presumed innocent and improperly

shifted the State’s burden of proof to him because the jury would be inclined to accept the

label “victim” as a proven fact when it is a fact for the State to prove and the jury to determine.

He also argues that referring to AS as “the victim” in the presence of the jury amounted to

improper vouching for both her credibility and the sufficiency of the State’s case.

Our supreme court has stated:

Our standard of review for appeals of an order denying a mistrial motion is well established, and a circuit court’s refusal to grant a mistrial is difficult to overcome:

A mistrial is an extreme and drastic remedy that will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. The circuit court has wide discretion in granting or denying a mistrial motion, and, absent an abuse of that discretion, the circuit court’s decision will not be disturbed on appeal. Among the factors this court considers on appeal in determining whether or not a circuit court abused its discretion in refusing to declare a mistrial are whether the prosecutor deliberately induced a prejudicial response and whether an admonition to the jury could have cured any resulting prejudice.

3 Burks v. State,

,

, 407 (citing King v. State,

,

(2005)). It is also well settled that an admonition to the jury usually cures

a prejudicial statement unless it is so patently inflammatory that justice could not be served by

continuing the trial.

. Where the possible prejudice could have been

cured by an admonition to the jury, the supreme court has found no abuse of discretion when

defense counsel has refused the circuit court’s offer of such a curative instruction.

.

In Friday v. State, our supreme court affirmed the circuit court’s denial of the appellant’s

motion in limine to preclude the State from referring to two prosecuting witnesses—minors

who had allegedly been sexually assaulted by the appellant—as “victims.”

, at 8,

. The supreme court held that the appellant did not suffer prejudice

because (1) it was readily apparent to the jury that in the State’s theory of the case, the two

witnesses were victims; and (2) the law enforcement officers’ references to the witnesses as

victims were in the officers’ testimony recounting their role in the investigation.

.

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

denying Hayes’s motion for a mistrial because Hayes failed to demonstrate that the State’s

one-time reference to AS as “the victim” constituted prejudice sufficient to warrant such an

extreme and drastic remedy. By the time Wilson testified, it was readily apparent to the jury

that the State’s theory of the case was that AS was the victim. Deanna Cardenas had already

testified that in the early morning hours of November 22, 2015, she awoke to AS’s beating on

the Cardenases’ front door, and AS told Cardenas she had been “violated,” robbed, and that

4 her vehicle had been stolen. Former Texarkana police officer Levi Saxby had also testified that

AS reported that she had been raped, kidnapped, and robbed at gunpoint. Finally, before

Wilson testified, AS had testified in great detail about the man who raped, kidnapped, and

robbed her at gunpoint.

We also note that references to AS as “the victim” of a sexual assault had occurred in

the presence of the jury at other times during the trial with no objection from Hayes. For

instance, in Wilson’s introductory testimony wherein she explained her role as a sexual-assault

nurse examiner, she stated that she examines victims of sexual assault. Wilson’s report, which

was admitted into evidence, concluded that AS had suffered injuries from a sexual assault.

Because Hayes has failed to demonstrate prejudice as a result of the State’s one-time use of

the word “victim” at this multiday jury trial, we hold that the circuit court did not abuse its

discretion in denying Hayes’s motion for a mistrial.

Assuming arguendo that Hayes had suffered prejudice as a result of the reference to

AS as “the victim,” the record reveals that the circuit court offered Hayes an admonition to

the jury to cure any prejudice suffered by him; however, he declined the offer. In AS v. State,

,

(1994), the supreme court affirmed the circuit court’s

denial of a motion for a mistrial after a witness referred to the appellant’s prior criminal

conviction. The supreme court noted that the circuit court offered to admonish the jury, but

the appellant declined the offer. The supreme court held that the appellant’s failure to request

a cautionary instruction or admonition may not inure to his benefit on appeal.

. Accordingly, Hayes’s decision to decline a curative instruction also precludes reversal

on this point.

5 Hayes’s second point on appeal is that the circuit court abused its discretion in denying

his motion for a mistrial or, alternatively, his motion for continuance in connection with the

State’s late disclosure of a witness—Texarkana Police Detective Eric Winters. As part of the

investigation, law enforcement officers collected and submitted evidence for forensic testing.

On April 19, 2017, the State emailed counsel for Hayes advising that it was adding Winters to

its witness list to testify about chain of custody. This email also attached Winters’s January 5

and May 25, 2016, reports. The following day, the State emailed Hayes’s counsel the lab-

submission forms related to evidence Winters had sent to the Arkansas State Crime

Laboratory.

On April 20, Hayes filed a motion in limine to exclude Winters from testifying. Hayes’s

counsel argued that the late disclosure violated the rules of discovery and prejudiced the

investigation of any chain-of-custody issue. The State responded that Winters was being called

solely as a chain-of-custody witness—to testify as to his role of transferring DNA-sample

swabs taken from Hayes to the crime lab. The State argued that the DNA report had been

produced to the defense prior to trial, the defense had ample time to investigate the chain-of-

custody issue, and Hayes could not demonstrate prejudice from the late disclosure of a chain-

of-custody witness.

The circuit court found that the State’s disclosure of Winters was a discovery violation

and asked Hayes’s counsel what remedy was being sought. Hayes’s counsel requested that

Winters’s testimony be barred or, alternatively, that Hayes be granted a continuance. The

circuit court provided Hayes’s counsel the opportunity to question Winters outside the

presence of the jury during which Winters testified that his role in this case was to retrieve

6 Hayes’s buccal-swab evidence from the property tech at the police department, deliver it to

the post office to be mailed to the crime lab, pick it up from the lab after testing, and return it

to the property tech. After Winters testified, Hayes’s counsel renewed the motion to exclude

Winters’s testimony or, alternatively, for a continuance. The circuit court denied the motions.

Hayes argues that the circuit court abused its discretion in denying his motion for a

mistrial or, in the alternative, motion for continuance on the basis of the State’s failure to

timely disclose Winters as a trial witness. Hayes points out that the circuit court found that the

State had violated Arkansas Rule of Criminal Procedure 17.1(a)(i) by failing to timely disclose

Winters as a witness for trial but argues that the court failed to impose the requested remedies

authorized by Arkansas Rule of Criminal Procedure 19.7(a), which provides that when a party

fails to comply with discovery requirements, the circuit court may order compliance, grant a

continuance, exclude the evidence, or order other appropriate relief.

We first note that Hayes failed to move for a mistrial with regard to Winters’s

testimony; therefore, this argument may not be raised for the first time on appeal. Walker v.

State,

,

(2003) (holding that where the appellant failed to

move for a mistrial with regard to the testimony of a particular witness, the appellant cannot

raise the issue for the first time on appeal).

Hayes did move to exclude Winters’s testimony or, alternatively, for a continuance due

to the State’s discovery violation. It is well settled that the purpose of the discovery rules is to

require the State to disclose its evidence to the defendant in time for the defendant to make

beneficial use of the information. Chunestudy v. State,

,

.

The standard of review for imposing sanctions for discovery violations is whether there has

7 been an abuse of discretion.

. This court has said that “the key in

determining if a reversible discovery violation exists is whether the appellant was prejudiced

by the prosecutor’s failure to disclose.”

at 12–13,

(citing Bray v. State,

,

(1995)). The burden is on the appellant to prove that the

discovery violations were sufficient to undermine the confidence in the outcome of the trial.

Id. at 13,

. Even if a discovery violation has occurred, this court will not

reverse if the error is harmless.

.

The circuit court denied Hayes’s motions, finding that Winters’s testimony did not go

“to the very heart of the Defense’s theory of the case.” Rather, according to the circuit court,

Winters’s testimony was limited to a chain-of-custody matter, and there was no evidence

related to chain of custody that Hayes had been prejudiced from receiving a fair trial. The

circuit court further found that Hayes had been given the opportunity to question Winters and

that minor breaks in the chain of custody would go to the weight of the evidence as determined

by the trier of fact.

The circuit court did not abuse its discretion in denying Hayes’s motions to exclude

Winters’s testimony or, alternatively, for a continuance. While Hayes contends that “the jury

was presented with highly prejudicial evidence” as a result of the State’s untimely disclosure

of Winters as a witness, Hayes fails to establish or even explain what that prejudice was. And

the record fails to support Hayes’s contention. For instance, the State advised Hayes on

Wednesday, April 19, of its intent to call Winters as a chain-of-custody witness. Trial was

scheduled to begin on Tuesday, April 25; therefore, Hayes had three business days to contact

Winters but elected not to do so. Moreover, the circuit court provided Hayes the opportunity

8 to voir dire Winters outside the presence of the jury, which provided Hayes an opportunity to

discover any potential chain-of-custody problems and prevent any unfair surprise. Hayes fails

to argue that anything occurred during Winters’s testimony that was prejudicial and that could

have been prevented had Winters been put on the witness list sooner. Hayes merely argues

that more investigation into Winters is needed, but he fails to elaborate on this.

This court has repeatedly refused to find reversible error in these types of cases without

a showing of prejudice. Chunestudy,

,

(citing Davis v. State,

,

(1994); Brooks v. State,

,

(1992);

Prince v. State,

,

(1991); Smith v. State,

,

(1990)). And it is within the circuit court’s discretion which sanction, if any, to employ when

there is a failure to comply with discovery. Reed v. State,

,

(1993). In light of the circuit court’s findings, we hold that it did not abuse its discretion in

denying Hayes’s motions to exclude Winters’s testimony or, alternatively, for a continuance.

Affirmed.

GRUBER and WHITEAKER, JJ., agree.

John P. Walker, P.A., by: Lawrence A. Walker; and Crystal J. Okoro, for appellant.

Leslie Rutledge, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.

9