Gillean v. State

Cite as 2015 Ark. App. 698

ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-14-936
Opinion Delivered December 9, 2015

JACK W. GILLEAN APPEAL FROM THE FAULKNER
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2012-1044]
V.

STATE OF ARKANSAS HONORABLE CHARLES E.
APPELLEE CLAWSON, JR., JUDGE

AFFIRMED

BART F. VIRDEN, Judge

Jack Gillean was convicted in the Faulkner County Circuit Court of six counts of

commercial burglary after a trial by jury. He was sentenced to three years in the Arkansas

Department of Correction (ADC) and was ordered to pay a fine of $10,000 on count I; on

counts II-VI he was sentenced to ten years of probation on each count, and he was ordered

to pay fines totaling $25,000.

I. Facts

In the summer of 2010, Jack Gillean, former Chief of Staff of the University of

Central Arkansas (UCA), and Cameron Stark, a student at UCA, formed a friendship. From

February 2011 to June 2012, Stark used Gillean’s keys and entry card to enter UCA

buildings and several of his professors’ offices for the purpose of obtaining exams. In June

2012, Stark was arrested by the UCA police for stealing the prescription drug Adderall from

Professor Andrew Linn’s office. When confronted by UCA police, Stark told the police

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officer that in the spring of 2011 Gillean had willingly given him the keys on several

occasions, and that Gillean knew Stark’s intent was to obtain exams in advance of his

upcoming tests. In exchange for immunity from prosecution, Stark agreed to testify against

Gillean. As a part of the immunity agreement, Stark gave the UCA police the keys and two

phones he had used to text Gillean and others during the spring of 2011.

The original criminal information was filed on October 5, 2012. In response to

defense counsel’s motion, the circuit court directed the State to provide in its pleading the

name of the buildings on the UCA campus Stark entered, the dates the instances occurred,

and the items that were taken or attempted to be taken at the time of the incident. A third

and final amended information against Gillean was filed on February 20, 2014. It set forth

six counts of commercial burglary as occurring in buildings on the UCA campus on specific

dates. On each count, the underlying crime was listed as theft of property, and the property

alleged stolen was stated as “exam.”

The day before the trial a motion hearing was held. At this hearing defense counsel

requested that the circuit court exclude certain evidence, namely, testimony that Gillean

had a sexual relationship with Ryan Scott, testimony that Gillean and Stark had consumed

alcohol together, and testimony concerning Gillean’s response to questions posed to him by

UCA President Tom Courtway. The motion was denied.

The trial took place March 7-11, 2014, before a Van Buren County jury. 1 Counsel

for both parties conducted voir dire and questioned the potential jurors extensively. When

On February 28, 2013, Gillean filed a motion for change of venue from the Faulkner
1

County Circuit Court to the Van Buren Circuit Court because of extensive negative

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defense counsel asked the jury panel if any of them had read or heard anything about the

case in the media, one potential juror responded that she was familiar with the case from

reading newspaper articles and had already begun to form an opinion on the merits. She

also indicated that she was not sure she could be unbiased because of her strongly held

religious beliefs concerning homosexuality. The potential juror was eventually excused for

cause. Other jurors stated in response to questioning that though they had some negative

feelings about homosexuality in general, they could be fair and unbiased.

At the trial, Stark testified against Gillean. He testified that he and Gillean became

friends during the summer of 2010 and that in the fall Gillean helped Stark get a job in the

office of the president of UCA. On February 11, 2011, UCA was closed due to snow.

Stark testified that he and Gillean were together driving around the campus when he asked

Gillean if they could get into his cell-biology professor’s office in the Lewis Science Center

to obtain the upcoming exam for which Stark confessed he was not prepared. Stark testified

that Gillean let him into the building and then into Dr. Bhupinder Vohra’s office, and that

he waited outside the professor’s office while Stark searched for the exam on Dr. Vohra’s

computer. Stark testified that he found the files for both the upcoming exam and some older

exams, and he printed off copies of all of them.

After Stark acquired the exams, he enlisted two other classmates to answer the

questions on the exams. Stark testified that over the next three months there were five

coverage of the case in the media. Gillean filed an amended motion for change of venue on
May 6, 2013, requesting that the circuit court move the trial to the Searcy County Circuit
Court because he had discovered that the negative publicity had “saturated the potential
jury pool in Van Buren County as well.” On June 3, 2013, the circuit court entered an
order moving the trial to the Van Buren County Circuit Court.
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subsequent instances when Gillean gave Stark his keys and sometimes his entry card, or

“slide card”, so that Stark could enter the Lewis Science Center and Laney Hall, which

housed two other professors’ offices, in order to obtain copies of exams. In his testimony

Stark described the manner in which he obtained each test and details about where in each

of the professors’ offices the tests were located. All three professors testified at the trial as to

the manner in which they stored their tests in their offices. Stark’s description of the location

of the tests mirrored the testimony given by each professor. Stark also testified about a

particular incident prior to a March 7, 2011 exam in Dr. Menon’s physics II class. When

Stark tried to enter Dr. Menon’s office, the key would not work. Stark testified that Gillean

had a new key made at his request, and that Stark used the new key on March 31, 2011, to

enter Dr. Menon’s office to obtain an exam.

Jared Santiago, one of Stark’s classmates who participated in answering the exam

questions with Stark, testified at the trial in exchange for immunity from prosecution.

Santiago recounted for the jury the events of February 11, 2011, when Stark came to his

dorm room and showed him the exams he had just taken from Dr. Vohra’s office. He

testified that Stark told him that he had been riding around the campus with Gillean that

day; that Gillean told Stark that he had a key that would open any door on campus; and

that they could get the key from Gillean when they wanted it. Santiago testified that Stark

told him that he and Gillean had gone to Dr. Vohra’s office, and Stark printed off copies of

the upcoming test. Santiago testified that the two agreed to solve the test questions together.

Santiago explained to the jury that Stark had told him that he and Gillean were friends and

that he could get Gillean’s key and entry card to obtain tests in the future. Santiago described

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breaking into Dr. Tarka’s office with Stark and that the tests in that instance were on Dr.

Tarka’s desk in a stack. On that occasion, Santiago described how they had copied the exam

and then restapled the exam and placed it back into the center of the stack. Santiago

identified State’s exhibit 8 as the exam they had taken from Dr. Tarka’s office that night.

Santiago also recounted the incident when the key did not work for Dr. Menon’s office and

recalled that Stark had told him that Gillean had obtained a new key from the maintenance

office. Santiago testified that Stark did not always have the key during that semester but that

he asked for it as he needed it.

Santiago also recounted an occasion when they were not able to get Gillean’s key

because Stark had angered Gillean by wrecking his motorcycle. Santiago testified that after

they could not find Gillean’s key in his truck, which was parked at the airport while Gillean

was out of town, Santiago encouraged Stark to do whatever was necessary to patch things

up with Gillean. Santiago testified that, after the 2011 spring semester, Stark took the key

from Gillean and did not give it back to him.

Two employees of UCA’s physical plant also testified for the State: George McKee

identified the keys Stark had given to UCA police as Gillean’s, and he also identified to

which buildings the keys corresponded. William K. Manning testified about the automatic

reports created anytime an entry card is used to enter UCA buildings and that these reports

showed that Gillean’s card had been used on the dates and at the times Stark testified he had

entered Laney Hall to obtain exams. Manning also testified that Gillean reported that he had

lost his “grandmaster” key that opened all the buildings on the UCA campus, and that

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Gillean had requested a new grandmaster key. Manning identified a document dated March

7, 2011, as the record of that request and that the document had been signed by Gillean.

Jeff Scarborough, a former mentor to Stark and an acquaintance of Gillean, testified

for the State. Scarborough explained that when he noticed that Stark was partying more

than he had been previously and that Stark’s grades were dropping, he confronted Stark.

Scarborough explained that Stark responded by saying that he did not have to worry about

studying anymore, and he confessed that he had been using Gillean’s keys with Gillean’s

knowledge to enter faculty offices and to obtain upcoming exams. Scarborough testified

that he confronted Gillean about his involvement and warned Gillean that his participation

in Stark’s activity could hurt his career. Scarborough testified that he and Gillean “talked

about that a little bit and then he goes, ‘I know. I know.’”

Tom Courtway, the president of UCA, testified for the State. Courtway stated that

in either November or December 2011, he had a meeting with Gillean to discuss what

course of action the university should take concerning Gillean’s missing master key.

Courtway also testified about the events leading to Gillean’s arrest. He testified that

on June 12, 2012, he became aware of Stark’s arrest and the allegations that Gillean had

assisted him with the burglaries. Courtway put Gillean on administrative leave the next day.

After listening to an audio-taped phone call from Jeff Scarborough corroborating the

allegation that Gillean had willingly given Stark the master key, Courtway testified that he

and Graham Gillis, the associate vice president of administrative services at UCA, met with

Gillean. The meeting took place on June 15. Courtway testified that he told Gillean that he

wanted him to listen to the recorded phone call. Courtway testified Gillean did not seem

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shocked or surprised when he explained that the recording presented a damaging statement

about Gillean’s possible involvement in Stark’s criminal activity. Courtway testified that

Gillean said, “I don’t want to listen to it,” and he requested that Courtway not play the

recording. Courtway testified that he pressed Gillean again to listen to the recording and

said to Gillean, “We’ve worked together a long time, and I want to give you every

opportunity and I want you to argue with me if you feel like you need to about this audio

tape and the contents of it, and everything else because I want to be fair.” According to

Courtway, Gillean responded, “Then I’ll go ahead and resign.” Courtway testified that

Gillean left the meeting and tendered his resignation by email that same day.

Lastly, Courtway testified about the value of the integrity of exams to the university,

and that it was “hard to put a number on” the value of those exams.

The State rested its case in chief, and defense counsel moved for a directed verdict

on the commercial-burglary charges. First, defense counsel argued that the State had not

proved that any thefts that had occurred amounted to felony theft and that misdemeanor

theft did not satisfy the requirements of the statute. Defense counsel also argued that the

State had not proved deprivation of property had occurred because of Stark’s actions and

that deprivation was essential to the definition of theft. The circuit court took the matter

under advisement; after a hearing on the matter, the motion was denied.

The jury found Gillean guilty of all six counts of commercial burglary. Before the

sentencing hearing began, defense counsel objected to the introduction of testimony from

Detective Brian Williams who conducted the forensics testing of the two phones Stark had

given to investigators upon his arrest. Williams had uncovered text messages between Stark

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and Gillean showing that Gillean supplied Stark with marijuana on several occasions, and

the State argued that the texts should be admissible to illustrate Gillean’s close relationship

with Stark. Defense counsel argued that the evidence was more prejudicial than probative.

The motion was denied. Gillean was sentenced by the jury to three years in the ADC and

was assessed a fine of $10,000 on count I. On counts II-VI, the jury sentenced Gillean to

ten years’ probation on each count and assessed $5000 on each count. This appeal followed.

II. Points on Appeal

Gillean raises six points on appeal. We will address Gillean’s fourth point on appeal,

a challenge to the sufficiency of the evidence against him, first. Second, we will address

Gillean’s three points on appeal in which he challenges the admissibility of certain evidence.

Third, we will address Gillean’s assertion that the criminal information provided insufficient

due-process notice of the criminal behavior of which he was accused. Last, we will address

Gillean’s assertion that the circuit court erred during the sentencing phase of his trial when

it allowed testimony concerning his illegal-drug use.

A. Sufficiency of the Evidence

Gillean challenges the sufficiency of the evidence of commercial burglary. Because

of double-jeopardy concerns, we consider challenges to the sufficiency of the evidence

before addressing other arguments. Benjamin v. State, 102 Ark. App. 309, 310-11, 285

S.W.3d 264, 266 (2008). A motion for a directed verdict is treated as a challenge to the

sufficiency of the evidence. Woodson v. State, 2009 Ark. App. 602, at 7, 374 S.W.3d 1, 5.

When the sufficiency of the evidence is challenged, we consider only the evidence that

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supports the verdict, viewing the evidence in the light most favorable to the State. LeFever

v. State, 91 Ark. App. 86, 208 S.W.3d 812 (2005). The test is whether there is substantial

evidence to support the verdict, which is evidence that is of sufficient force and character

that it will, with reasonable certainty, compel a conclusion one way or the other. Id. On

review, this court neither weighs the evidence nor evaluates the credibility of witnesses.

Cluck v. State, 91 Ark. App. 220, 209 S.W.3d 428 (2005).

At the close of the State’s evidence, Gillean moved for a directed verdict. In support

of his motion for directed verdict, Gillean asserted that the State failed to prove Stark’s intent

to commit a felony. Gillean argued that the theft that occurred amounted to a misdemeanor

at most because the State failed to put forth evidence proving the value of the exams such

that the thefts would constitute a felony. Furthermore, Gillean argued that the State failed

to prove the necessary element of deprivation of property because Stark took photos or

photocopied the exams, and, except in one instance where Stark made a photocopy of the

exam and left the professor’s office with a few pieces of paper, he never actually removed

any property from his professors’ offices. We disagree, and we affirm.

Arkansas Code Annotated section 5-39-201(b), sets forth the elements of commercial

burglary:

(1) A person commits commercial burglary if he or she enters or remains
unlawfully in a commercial occupiable structure of another person with the purpose
of committing in the commercial occupiable structure any offense punishable by
imprisonment.
(2) Commercial burglary is a Class C felony.
(Emphasis added.) Misdemeanor theft is punishable by one year imprisonment. Ark. Code

Ann. § 5-4-401(b). No minimum value is required for proof of misdemeanor theft of

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property. Reed v. State, 353 Ark. 22, 29, 109 S.W.3d 665, 669 (2003). Theft of property is

defined at Arkansas Code Annotated section 5-36-103(a) (Repl. 2006):

(1) A person commits theft of property if he or she knowingly takes or exercises
unauthorized control over or makes an unauthorized transfer of an interest in the
property of another person with the purpose of depriving the owner of the
property;
(2) Or obtains the property of another person by deception or by threat with the
purpose of depriving the owner of the property.

Arkansas Code Annotated section 5-36-103(b)(4)(B) (Repl. 2013) provides that theft

of property is a class A misdemeanor if “the property has inherent, subjective, or

idiosyncratic value to its owner or possessor even if the property has no market value or

replacement cost.” Property is defined as either tangible or intangible personal property,

including any paper or document that represents or embodies anything of value. Ark. Code

Ann. § 5-36-101(7). Deprive means to “[w]ithhold property or to cause it to be withheld

either permanently or under circumstances such that a major portion of its economic value,

use, or benefit is appropriated to the actor or lost to the owner.” Ark. Code Ann. § 5-36-

101(4).

First, we address Gillean’s assertion that the predicate offense underlying the charges

of commercial burglary must be a felony; therefore, the circuit court erred in denying his

motion for a directed verdict. Gillean relies on Holt v. State, 2011 Ark. 391, 384 S.W.3d

498, in support of this assertion. In Holt, our supreme court held that the appellant’s

argument concerning the intent element of the residential-burglary statute was not preserved

for its review, but in addressing the point on appeal, it stated that the residential-burglary

statute required illegal entering with intent to commit a felony in the residence. Id. at 8,

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384 S.W.3d at 505. Gillean argues that thus, our supreme court has interpreted the

commercial-burglary statute to require intent to commit a felony.

Gillean’s contention is incorrect for two reasons. First, because the court in Holt

declined to reach the issue of intent, the interpretation of the residential-burglary statute is

dicta, and our appellate courts are not bound by mere comments not intended as a decision

of the court. Green v. State, 343 Ark. 244, 251, 33 S.W.3d 485, 490 (2000). Dicta includes

any discussion or comment in an opinion that is unnecessary to the decision reached. Id.

Secondly, since Holt, our court has held that misdemeanor theft of property is sufficient to

support a burglary charge. See Washington v. State, 2013 Ark. App. 148, at 4 (“Since

misdemeanor theft of property is an offense punishable by imprisonment, both elements of

the commercial-burglary statute have been satisfied.”) This holding reflects the plain

language of the statute requiring that, to be found guilty of commercial burglary, one must

enter the premises with the intent to commit a crime “punishable by imprisonment.” Ark.

Code Ann. § 5-39-201(b)(1) (emphasis added). We find no merit in Gillean’s assertion that

the commercial-burglary statute requires intent to commit a felony. Because misdemeanor

theft is punishable by one year imprisonment, the circuit court did not err in finding that

the requirements of the commercial-burglary were met.

Gillean also argues that the State failed to prove the value of the exams by not eliciting

testimony describing the value from the professors whose exams were photocopied or

photographed. In this way, Gillean asserts, the State impermissibly forced the jury to

determine the value of the exams. See Canon v. State, 265 Ark. 270, 273-74, 578 S.W.2d

20, 22 (1979) (“We have heretofore rejected the idea that common knowledge and

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experience could serve as a substitute for evidence of value which is a necessary element of

a crime[.]”)

The State called all of the professors whose exams had been stolen to testify. The

State questioned Dr. Bhupinder Vohra, Stark’s cell-biology professor in the spring of 2011,

about the value of his exams:

PROSECUTOR: Dr. Vohra, is there—as a professor in a university is there
some value to you having those exams safe and not out
in public domain?

DR. VOHRA: Yeah, it should not be out because we are testing
students on those exams. So it should not be out to
anyone. So that’s the value.

PROSECUTOR: Kind of hard to put a number on it.

DR. VOHRA: Oh, you can’t put a number—those are—you can say
those are invaluable and—because you are students
based on that. Their future depends on that. So you
cannot put value in time or money or anything . . . .
Dr. Richard Tarka, Stark’s organic-chemistry professor in the spring of 2011, also

testified and stated that he had never given anyone permission to take a test from his desk.

The State then elicited his testimony as to the value of maintaining the secrecy of the

contents of an exam:

PROSECUTOR: And it may seem like a silly question, Dr. Tarka, but why—
why would you not do that?
DR. TARKA: . . . I’m trying to evaluate how well they’ve understood the
material, and I have to have a level playing field for all the
students, and if they have a copy of the test beforehand that
gives them an unfair advantage.
PROSECUTOR: It kind of undermines the—
DR. TARKA: Absolutely, yeah.

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Stark’s former physics professor, Dr. Balraj Menon, also testified as to the inherent

value of the exams:

PROSECUTOR: Alright. And why is it important to you to protect your exams?
DR. MENON: Well, it is a fair evaluation of the students and I—and I think
everybody should be given the—you know, have a fair chance
of taking it and shouldn’t—I don’t want to give anybody an
advantage—
PROSECUTOR: Yes, sir.
DR. MENON: --over anybody else, yes, yes.
PROSECUTOR: Does that have some value to you as an instructor?
DR. MENON: Absolutely, yes. These are my tests. These are questions that I
come up with and those are my—yes.

President Courtway also testified that the integrity of the exams was inherently valuable

to an academic institution:

[A]t the core of any education institution stands for academic integrity that the
public and the students and others have to know that a degree from that university is
worth something and that as they go out into the world that they’ve earned their
grades, they’ve passed their exams, and that the degree that they’ve received is valid
and critical and important as they go through life.

Gillean argues that because the State failed to prove the replacement cost or monetary

value of the exams, and because the testimony elicited from the professors did not show the

inherent value or worth to the professors, value was not proved. We disagree. The

professors’ testimony supported the State’s assertion that the tests had inherent value to the

students, to the professors themselves, and to the university as an academic institution. No

minimum value was required to be shown, and we hold that the circuit court did not err in

finding that the State adequately proved that the owners of the exams were deprived of the

exams’ inherent value, and that the value of the exams was appropriated to Stark when he

copied the information therein. On this point, we affirm.

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A. Admissibility of Testimony

On appeal, Gillean asserts that during his trial the circuit court erred when it admitted

testimony over his objection. Gillean challenges three instances of admitted testimony: (1)

the circuit court allowed testimony that Gillean and Scott had a romantic relationship; (2)

the circuit court allowed testimony that Gillean drank alcohol with Stark; and (3) the circuit

court allowed testimony concerning Gillean’s reaction when President Courtway tried to

persuade Gillean to listen to a recorded statement concerning his role in Stark’s criminal

activity. We agree in part and disagree in part, and we hold that where the circuit court

erred in admitting testimony, the error was harmless.

1. Standard of review

The decision to admit or exclude evidence is within the sound discretion of the

circuit court, and this court will not reverse a circuit court’s decision regarding the admission

of evidence absent a manifest abuse of discretion. Jones v. State, 2011 Ark. App. 324, at 4,

384 S.W.3d 22, 24. An abuse of discretion is a high threshold that does not simply require

error in the circuit court’s decision but requires that the circuit court acted improvidently,

thoughtlessly, or without due consideration. Id. Moreover, an appellate court will not

reverse a circuit court’s evidentiary ruling absent a showing of prejudice. Id.

2. Applicable law

Rule 401 of the Arkansas Rules of Evidence defines relevant evidence as “evidence

having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

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evidence.” Ark. R. Evid. 401 (2015). Arkansas Rule of Evidence 402 further provides that

“[e]vidence which is not relevant is not admissible.” Ark. R. Evid. 402 (2015). For evidence

to be relevant, it is not required that the evidence prove the entire case; rather, all that is

required is that it have any tendency to make any fact that is of consequence to the

determination of the action more or less probable. Banks v. State, 2010 Ark. 108, at 4-5,

366 S.W.3d 341, 343-44. However, relevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice. See Ark. R. Evid. 403

(2015). Morris v. State, 358 Ark. 455, 458, 193 S.W.3d 243, 246 (2004).

a. Gillean’s and Scott’s romantic relationship

Gillean asserts that the testimony concerning his relationship with Scott was both

irrelevant, and alternatively, if the evidence was relevant, that the probative value of the

testimony was outweighed by its prejudicial impact. We hold that the circuit court erred in

finding that testimony concerning Scott’s and Gillean’s romantic relationship was relevant.

At Gillean’s trial, Scott testified that when he was living in Gillean’s home in the spring

of 2011, he witnessed Gillean give Stark his keys, and that he heard the two of them

discussing the key exchange on several occasions. Scott recalled for the jury that he had

advised Gillean against helping Stark obtain the exams, but that Gillean responded that he

did not care. Scott also testified that after Stark’s motorcycle accident, Gillean was angry

with Stark. Scott testified that during this hiatus in Gillean’s and Stark’s friendship, Gillean

instructed Scott that, while Gillean was out of town, Scott should not give Stark the keys if

he asked for them.

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None of the testimony offered by Scott related to his romantic relationship with Gillean

and could have been offered by any roommate who lived in Gillean’s household. Scott’s

sexual relationship with Gillean did not place him in any better position to observe the

events that led to criminal charges being brought against Gillean. The nature of their

relationship is immaterial to the testimony offered by Scott, and therefore we hold the circuit

court erred in allowing irrelevant evidence; however, even when a trial court errs in

admitting evidence, our supreme court has held that when the evidence of guilt is

overwhelming and the error is slight, we can declare that the error was harmless and affirm

the conviction. Cobb v. State, 340 Ark. 240, 246, 12 S.W.3d 195, 199 (2000). 2

i. evidence of guilt

Upon our review of the evidence, we hold that the requirement of the first prong of the

harmless-error analysis—overwhelming evidence of guilt—was met. At the trial, Stark

explained that initially, during the 2011 spring semester, he had used his friendship with

Gillean to get the keys from him, but eventually Stark came into possession of the keys by

simply keeping them after he woke up with the keys one morning after a night of drinking

with Gillean. Jared Santiago testified at trial that Stark had told him of Gillean’s knowingly

giving him the keys, and Santiago described breaking into their professor’s office together

to copy an exam. Dr. Vohra identified the stolen test, and Santiago corroborated that the

break-in occurred the day before the test was given. Dr. Tarka testified that he had printed

the tests out the day before and left them on his desk. Dr. Tarka’s testimony about the

2
Because we agree that the testimony concerning their romantic relationship was
irrelevant and therefore inadmissible, we need not address the issue of probity.
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placement of the tests in his office matched the testimony of both Stark and Santiago about

the manner in which they obtained Dr. Tarka’s test and where they found the test in his

office.

Testimony from the employees of UCA’s physical-plant department also supported the

State’s case against Gillean. William K. Manning offered testimony specifying the dates that

the automatic reports were created when Gillean’s entry card had been used to enter the

UCA buildings. The dates Manning cited corresponded with Stark’s accounts of when he

used Gillean’s card to enter the same buildings to obtain the exams. Manning’s testimony

concerning his conversation with Gillean about getting a new key made also supported

Stark’s testimony that Gillean had another key made when the one Gillean gave Stark did

not work properly. Manning identified the key-request form that Gillean had filled out,

dated, and signed.

Scott’s testimony supported the State’s assertion that Gillean was aware of Stark’s

burglary and intent to procure exams. Scott testified that, after the motorcycle accident,

Gillean instructed Scott to refuse to give Stark the keys if he asked for them. Scott testified

that he counseled Gillean against helping Stark and that he witnessed Gillean give Stark the

keys upon his request.

Jeff Scarborough testified that Stark confided in him that he was using Gillean’s keys to

steal exams and that when Scarborough confronted Gillean about it, Gillean did not deny

the allegations, and he stated, “I know. I know.” In light of the evidence presented against

Gillean, we hold that the requirement of the first prong of the harmless-error test has been

met.

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ii. prejudice

We now turn to the second prong of the harmless-error analysis: whether the error in

allowing the evidence was slight. In determining whether the error is harmless, the appellate

courts look to see if the appellant was prejudiced by the erroneously admitted evidence;

prejudice is not presumed, and a conviction will not be reversed absent a showing of

prejudice. Rodriguez v. State, 372 Ark. 335, 276 S.W.3d 208 (2008).

During voir dire, defense counsel questioned the potential jurors about what they had

heard and read in the media. One potential juror explained to the court that she had read

several newspaper articles and recited some of the facts of the case and also some conclusions

she had drawn from reading the articles. She told the court that she not only had a preformed

opinion about the merits of the case, but she also felt that she could not be fair to Gillean

because he was a homosexual. She was excused for cause. Defense counsel followed up on

the issue with the remaining potential jurors by extensively questioning them about their

beliefs and attitudes toward homosexuality and whether their beliefs would prevent them

from being unbiased toward Gillean:

DEFENSE COUNSEL: Do any of you have feelings like that? I mean, is there
something that could come out about Jack in this trial,
about the way he lives, whatever, that just makes you
say, “Oh, my god, no way. He did that. He’s guilty of
what he’s charged with.” Mr. Howard, you seem to be
studying that.

POTENTIAL JUROR: Well, I’m apostolic.

DEFENSE COUNSEL: Well, I apostolic, too.

POTENTIAL JUROR: But, we’ll let the Lord clean them up.

DEFENSE COUNSEL: I’m sorry? Let the Lord—
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POTENTIAL JUROR: Let the Lord clean them up.

DEFENSE COUNSEL: Clean them up?

POTENTIAL JUROR: We’re not judging. Let the Lord clean them up.

DEFENSE COUNSEL: All right. Well, let me get specific with you. You are
going to hear evidence in this case that Jack Gillian had
a sexual relationship with another man. How do you feel
about that, Mr. Howard?

POTENTIAL JUROR: That’s not what he’s on trial for.
....
DEFENSE COUNSEL: Mr. Howard, can you put aside what the Bible teaches
and apply the law that the Judge says you have to apply?

POTENTIAL JUROR: Yes, I can. Yes, I can.

DEFENSE COUNSEL: Let me—I’m sorry, but this issue concerns me a lot so
I’m going to ask you a couple of more questions on that.
....
DEFENSE COUNSEL: Mr. French, how would you feel if a gay or lesbian
couple bought the house next to you?

POTENTIAL JUROR: Well, I may be different, but as long as it didn’t affect
me, I wouldn’t have a problem.

DEFENSE COUNSEL: Ms. Pelzer, how about you?

POTENTIAL JUROR: Considering the fact it wouldn’t bother me; okay? I have
friends or what I consider friends—I don’t think I’m—
it wouldn’t bother me. Let’s just leave it at that.

DEFENSE COUNSEL: Okay. Ms. Griggs, let me ask you. Do you think an
employer should have the right to refuse to hire
somebody because of their sexual orientation?

POTENTIAL JUROR: No, that’s discrimination.

DEFENSE COUNSEL: Ms. Madison, I think I know your answer to this
question. If somebody you worked with closely was gay
or lesbian, would that bother you at all?

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POTENTIAL JUROR: I’ve had. It doesn’t bother me.

POTENTIAL JUROR: About the only thing I would have said was would I
have a problem with somebody that’s homosexual living
next to me. Not if they kept it to themselves. But if they
threw it in my face, I’d have a problem with it. But if
they kept it to themselves, I don’t have a problem with
that.

DEFENSE COUNSEL: Okay. Anybody else?

POTENTIAL JUROR: And when I say that, I mean, like, come into my house
and, like, forcing me to accept their lifestyle. That's what
I mean when I say that.

DEFENSE COUNSEL: Sure. Wouldn’t have a problem working with one
closely?

POTENTIAL JUROR: No, sir. No, nothing like that. I just don’t want them to
throw that in my face.

DEFENSE COUNSEL: Well, I was going to deal with that later, but he brought
it up, so let’s deal with it right now. Do any of you have
religious beliefs that homosexuality is wrong?

(Several jurors raise their hands.)

DEFENSE COUNSEL: Most of you do. And you heard me talk about God’s law
and man’s law. Are there any of you who would feel
obligated to find Jack Gillean guilty in this case because
of your religious beliefs?

(No audible response.)

DEFENSE COUNSEL: Can all of you assure me that whatever you believe about
homosexuality that you can decide this case solely on the
evidence that’s presented in the courtroom and the law
that the Judge gives you in this case?

(No audible response.)

DEFENSE COUNSEL: I got your solemn oath on that. Cause I’ll tell you, that’s
my biggest worry in this case is that Jack will get
convicted because of homosexual conduct not because
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of what he’s charged with in the case. Do y’all promise
me you can do that?

(Jurors nod heads up and down.)

The voir dire reveals that even though some jurors held negative views about

homosexuality in general, they all came to the conclusion that they could be fair and try the

case on its merits. It has been long held that jurors are presumed unbiased and qualified to

serve. Howard v. State, 367 Ark. 18, 36, 238 S.W.3d 24, 39 (2006), and with that in mind,

we find no error.

At the pretrial hearing, defense counsel presented evidence in the form of studies that

indicate that prejudice against homosexuals is inherent in conservative communities like

Van Buren County. Defense counsel also cited caselaw from our jurisdiction and others in

which the courts have recognized prejudice that arose from attitudes toward homosexuality.

Though Gillean makes a common-sense argument that evidence of homosexuality is

inherently prejudicial—and even points to instances in which prejudice has been found—

he has not demonstrated actual prejudice in the present case. In light of the overwhelming

evidence of Gillean’s guilt and in an absence of a showing of prejudice, we hold that the

circuit court’s error in admitting the irrelevant testimony concerning Gillean and Scott’s

homosexual relationship was harmless.

a. Consumption of alcohol

Gillean contends that the circuit court erred in allowing the introduction of evidence

that Gillean and Stark drank socially at Gillean’s home and at various events, and the

evidence only served to negatively influence the jury’s perception of Gillean’s character.

We disagree, and on this point we affirm.
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The testimony concerning Gillean’s alcohol consumption was relevant evidence

within the scope of Rule 401 because it tends to show the familiar, social nature of Gillean’s

relationship with Stark—a fact that is of consequence to the determination of whether

Gillean conspired to commit commercial burglary in order to help his friend gain access to

his upcoming exams. The evidence that Gillean and Stark drank socially together also

supported the State’s assertion that after a night of drinking with Gillean, Stark woke up

with the keys in his possession. The evidence of the two drinking together illustrated how

Stark used his familiarity with Gillean to gain access to the keys and that ultimately Stark

did not know exactly how he came into possession of Gillean’s keys. Because the testimony

concerning Gillean’s alcohol consumption with Stark demonstrates their friendship, and the

charges against Gillean involve intent that would have arisen out of their friendship, the

circuit court did not err in allowing the evidence.

b. Gillean’s reaction

Gillean’s final challenge to the admissibility of evidence during the trial concerns

President Courtway’s testimony describing Gillean’s reaction to his request that Gillean

listen to a recorded phone call concerning his involvement in Stark’s illegal activities. Gillean

asserts that the testimony was highly prejudicial and that the resulting prejudice outweighed

the probative value; alternatively, Gillean argues that the introduction of the evidence

violated his Fifth Amendment right against self-incrimination. We disagree, and on this

point we affirm.

On June 15, 2011, two days after Courtway placed Gillean on administrative leave

due to the allegations against him, Courtway requested a meeting with Gillean and Dr.

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Graham Gillis, vice-president of academic affairs. At the meeting, Courtway asked Gillean

to listen to a recorded phone call from Jeff Scarborough in which Scarborough described

Gillean’s involvement in Stark’s illegal activities. Gillean responded that he did not want to

listen to the recording. Courtway explained to Gillean that he wanted to be fair and give

Gillean a chance to defend himself. In response, Gillean stated, “Then I’ll go ahead and

resign.” Gillean left the meeting shortly thereafter and tendered his resignation that same

day.

i. relevance

In Gaines v. State, 340 Ark. 99, 110, 8 S.W.3d 547, 554 (2000) (internal citations

omitted), our supreme court held as follows:

Under the res gestae exception, the State is entitled to introduce evidence showing all
circumstances which explain the charged act, show a motive for acting, or illustrate the
accused’s state of mind if other criminal offenses are brought to light. Specifically, all of
the circumstances connected with a particular crime may be shown to put the jury in
possession of the entire transaction . . . . Res gestae evidence is presumptively admissible.

We hold that the circuit court was within its discretion to overrule Gillean’s Rule

401 and 403 objections and to allow Courtway to testify about what hadoccurred before

Gillean’s arrest when Gillean was confronted with evidence of his guilt. The evidence was

relevant to inform the jury of the circumstances that led up to Gillean’s resignation and to

his arrest. Courtway’s testimony concerning Gillean’s reaction—that Gillean did not deny

the allegations and voluntarily resigned from his job—allowed the jury to understand the

events that led to Gillean’s resignation and to formal charges being filed against him.

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ii. Fifth Amendment

At the pretrial hearing, defense counsel asserted that Courtway’s testimony

concerning Gillean’s reaction to Courtway’s request to listen to the recorded phone call was

inadmissible as a violation of Gillean’s Fifth Amendment protection against self-

incrimination. The State responded that Gillean was not in custody, nor did Gillean

unequivocally invoke his right to remain silent; therefore, he could not object to Courtway’s

testimony on Fifth Amendment grounds. Gillean asserted that he fell under the exception

to both the requirement that the witness be in “custody” and that the Fifth Amendment

protection against self-incrimination be invoked unequivocally. The circuit court agreed

with the State, and it denied the motion to exclude Courtway’s testimony. We find no

error, and on this point we affirm.

The Fifth Amendment to the United States Constitution provides that “no person

. . . shall be compelled in any criminal case to be a witness against himself.” The privilege

against self-incrimination “is an exception to the general principle that the Government has

the right to everyone’s testimony.” Salinas v. Texas, 133 S. Ct. 2174, 2178 (2013).

In Miranda v. Arizona, 384 U.S. 436, 444 (1966) the United States Supreme Court held

as follows:

[T]he prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination. By custodial
interrogation, we mean questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant
way.

The Supreme Court set the parameters of the Fifth Amendment privilege against

self-incrimination:
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[T]he Fifth Amendment privilege is available outside of criminal court proceedings
and serves to protect persons in all settings in which their freedom of action is
curtailed in any significant way from being compelled to incriminate themselves.

Our supreme court has also defined the term “custody” as “when he [a person] is

deprived of his freedom by formal arrest or restraint on freedom of movement of the degree

associated with formal arrest.” Hall v. State, 361 Ark. 379, 389, 206 S.W.3d 830, 837 (2005).

In resolving the question of whether a suspect was in custody at a particular time, the only

relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his

situation. Id. The initial determination of custody depends on the objective circumstances

of the interrogation, not on the subjective views harbored by either the interrogating officers

or the person being interrogated. Id.

Gillean argues that the meeting on June 15 between him, Courtway, and Gillis

amounted to custody. To support his assertion, Gillean asserts that the circumstances of the

June 15 meeting are analogous to the facts presented in Garrity v. New Jersey, 385 U.S. 493

(1967). In Garrity, police officers from certain boroughs of New Jersey were being

investigated for involvement in “fixing” traffic tickets. When they were questioned by

investigators from the Attorney General’s office, they were given a choice: either

incriminate themselves by answering investigator’s questions or forfeit their jobs under New

Jersey statute dealing with forfeiture of office or employment, tenure, and pension rights of

persons refusing to testify on grounds of self-incrimination. The appellants in Garrity

answered the questions, and their answers were used against them in subsequent

prosecutions for conspiracy to obstruct the administration of the traffic laws. The officers

were convicted, and on appeal they argued that that their statements were coerced “by

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reason of the fact that, if they refused to answer, they could lose their positions with the

police department.” Id. at 495. The Court agreed:

The choice imposed on petitioners was one between self-incrimination or job
forfeiture. Coercion that vitiates a confession . . . can be ‘mental as well as physical’;
‘the blood of the accused is not the only hallmark of an unconstitutional inquisition.’
Subtle pressures may be as telling as coarse and vulgar ones. The question is whether
the accused was deprived of his ‘free choice to admit, to deny, or to refuse to answer.’

Id. at 496 (internal citations omitted).

We hold that Garrity is inapposite to the present case. Gillean has not presented

evidence to support his assertion that he was subject to the same kind of coercion as the

appellants in Garrity. Neither Courtway nor Gillis threatened him with removal from his

position during the meeting, and Courtway encouraged Gillean to argue with him and

defend himself. Ultimately, Gillean voluntarily resigned from his position without

prompting. We cannot say the circuit court abused its discretion in allowing Courtway’s

testimony concerning Gillean’s reaction to his request that Gillean listen to the recording;

therefore, we find no error, and we affirm. 3

3
Gillean asserts that Green v. City of North Little Rock, 2012 Ark. App. 21, 388 S.W.3d
85 supports his argument that he was questioned under threat of removal. In Green, our
court held as follows:

The Fifth and Fourteenth Amendment right protected in Garrity, however, is
the privilege to be free from being compelled to communicate or otherwise provide
testimony. Giving a blood or urine sample for drug testing does not violate that
privilege. Garrity simply has no application in this situation, and Green’s arguments
to the contrary are unavailing. In short, we conclude that the trial court correctly
granted the City’s motion for summary judgment on this issue.

Id. at 15 (internal citations omitted). Green involved drug-testing an officer during an
investigation. A blood sample does not constitute “testimony.” See Schmerber v. California,
384 U.S. 757, 764 (1966). This court held that there was no violation of Green’s Fifth

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B. Due Process

Gillean asserts that the criminal information did not give him adequate notice that his

conduct amounted to the crime of being an accessory to burglary for the purpose of

committing theft of property; therefore, his due-process rights were violated. The crux of

Gillean’s argument is that because the criminal information listed “exam” as the property

stolen, Gillean had inadequate notice that Stark’s stealing of information, not the exams

themselves, constituted theft. Thus, Gillean argues he was forced to speculate as to the

charges against him, and he was not given fair notice of what the State would attempt to

prove at his trial. We disagree, and on this point we affirm.

It is axiomatic that due process requires that the defendant be provided sufficient

notice of the precise criminal charges brought against him and that he must have adequate

opportunity to prepare his defense. Johnson v. State, 71 Ark. App. 58, 69, 25 S.W.3d 445,

452 (2000).

The criminal information listing the charges against Gillean was amended three times,

and the final amended felony information was filed on February 20, 2014. In it, the State

listed six commercial-burglary charges predicated on theft of property. Each charge listed

the date of the incident and the building on the UCA campus in which the alleged criminal

activity occurred. An “exam” was listed as the property stolen for each charge.

Gillean’s due-process argument is closely related to his challenge to the sufficiency

of the evidence in that he relies on Holt, supra, to support his argument that “if the

Amendment privilege against self-incrimination, and thus, we do not agree with Gillean’s
assertion that Green applies to the present case.

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commercial burglary elements included anything less than felony theft, [then he] was not

given adequate notice that his conduct was criminal and was therefore denied due process.”

We hold that the circuit court did not err in finding that Gillean was sufficiently

informed of the charges against him. For the reasons we stated in our discussion of Holt,

supra, we affirm on this point.

B. Sentencing Evidence

Gillean argues that, during the sentencing phase, the circuit court erred in admitting

testimony concerning Gillean’s marijuana use, and the admission resulted in prejudice. We

review a circuit court’s decision to admit evidence in the penalty phase of a trial for an abuse

of discretion. Holley v. State, 2014 Ark. App. 557, at 8, 444 S.W.3d 884, 889. We will

reverse a sentencing decision only if the defendant can show that he was prejudiced by the

erroneously admitted evidence. Wilson v. State, 100 Ark. App. 14, 15, 262 S.W.3d 628, 629

(2007). The pivotal legal point, however, is that our court need not decide the issue if the

appellant cannot establish prejudice from the admission of the evidence during sentencing.

Holley, supra. 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).

Therefore, to show that the circuit court abused its discretion by allowing evidence

of Stark’s and Gillean’s use of marijuana was reversible error, Gillean must show that

prejudice resulted from the admission of the evidence. The minimum sentence for

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commercial burglary is three years. Ark. Code Ann. § 5-4-401(a)(4). Gillean’s sentence was

three years on the first count and ten years’ probation on each of the remaining counts.

Because Gillean was sentenced to the minimum sentence on the first count and to probation

on the remaining counts, he cannot establish prejudice. On this point we affirm.

III. Conclusion

We hold that the circuit court did not err in denying Gillean’s motion for a directed

verdict. Though we find error in the circuit court’s admission of testimony concerning the

relationship between Scott and Gillean, we hold that the error was harmless. As to the

alcohol-related testimony and the testimony concerning Gillean’s reaction to the recorded

statement, we find no error. We hold that the circuit court did not err in finding that the

criminal information sufficiently informed Gillean of the charges against him. Lastly, we find

that the circuit court did not err during the sentencing phase in admitting evidence related

to Gillean’s marijuana use. We affirm.

Affirmed.

KINARD and HOOFMAN, JJ., agree.

Timothy O. Dudley, Nicki Nicolo, and Samuel A. Perroni, for appellant.

Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.

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