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Arkansas Code Annotated section 16-97-101 (Repl. 2016) provides that criminal

prosecutions in which a jury sits as the trier of fact are bifurcated into a guilt-innocence



1Arkansas Supreme Court Rule 4-2(a)(8) provides that an appellant’s addendum

shall contain true and legible copies of the non-transcript documents in the record on

appeal that are essential for the appellate court to confirm its jurisdiction, to understand

the case, and to decide the issues on appeal. Not a single page of appellant’s addendum is

legible.

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phase and a penalty phase. Helms v. State, 92 Ark. App. 79, 211 S.W.3d 53 (2005). A trial

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

discretion. Id. The abuse-of-discretion standard is a high threshold that does not simply

require error in the trial court’s decision, but requires that the trial court act

improvidently, thoughtlessly, or without due consideration. Boykins v. State, 2013 Ark.

App. 463. Nor will we reverse absent a showing of prejudice. Id. The admissibility of proof

in the penalty phase of a jury trial is governed by the Arkansas Rules of Evidence; however,

pursuant to Ark. Code Ann. § 16-97-103, certain evidence is admissible at the penalty

phase that would not have been admissible at the guilt-innocence phase of the trial. Helms,

supra.

Arkansas Code Annotated section 16-97-103 provides that evidence relevant to

sentencing by either the court or a jury may include prior convictions of the defendant—

both felony and misdemeanor. Ark. Code Ann. § 16-97-103(2). The jury may be advised as

to the nature of the previous convictions, the date and place thereof, the sentence received,

and the date of release from confinement or supervision from all prior offenses. Id.

Relevant evidence under this section may also include evidence of the defendant’s

character and of aggravating circumstances. Ark. Code Ann. § 16-97-103(5) & (6); see

Helms, supra (holding that, in a residential-burglary and theft case, evidence that Helms was

out on bond when he was accused, but not yet convicted, of forgery was admissible in that

it provided proof of his character).

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“Relevant evidence” means 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 evidence. Ark. R. Evid. 401. Relevant evidence is

generally admissible. Ark. R. Evid. 402. Although relevant, evidence may be excluded if its

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

403. Evidence offered by the State is often likely to be prejudicial to the accused, but the

evidence should not be excluded unless the accused can show that it lacks probative value

in view of the risk of unfair prejudice. Chunestudy v. State, 2012 Ark. 222, 408 S.W.3d 55.

II. Penalty Phase

At sentencing, the State sought to introduce three exhibits comprising Peer’s prior

convictions. Exhibits 5 and 6 referred to felony convictions, while exhibit 4 was a

sentencing order on two misdemeanor offenses (third-degree battery and criminal

mischief). The following colloquy occurred:

[DEFENSE COUNSEL]: Objection to 5 and 6, Your Honor. No objection to 4.

It’s a judgment on a misdemeanor.[2]

[PROSECUTOR]: It’s still admissible.

THE COURT: The issue is whether it’s relevant to a sentencing

decision I would assume. And your position is it is

because they’re both A misdemeanors?

[PROSECUTOR]: Yes, sir, Your Honor. And that they’re violent offenses

and so—or at least the one battery in the third is—is a

violent offense. So the jury can take that into

consideration.



2This is an accurate reflection of the record.

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It also shows a very lengthy period of criminal activity in

which she’s been involved in. I think that was her first

case. Then she had another drug—drug paraphernalia or

drug fraud case where she received probation. If you

look at the judgment in State’s Exhibit 5, that was

subsequently revoked, and she received a five-year

sentence. She then got out in 2017, committed a new

offense in State’s Exhibit 6, for which she received

probation that she’s currently on probation for right

now.

THE COURT: Very well. [Exhibits] 5 and 6 will be admitted without

objection. [Exhibit] 4, I find that there is some

relevance to the sentencing issue, and it will be

admitted over the objection that Mr. Robinson has

made.

Anything else before we—I assume you still want to call

sentencing witnesses?

. . . .

[DEFENSE COUNSEL]: I have an objection to the misdemeanor. He wants it in

there because it’s about violence.

THE COURT: Right.

[DEFENSE COUNSEL]: There’s nothing about violence in this case. There may

have been violence in some of her other cases. In fact,

there was.

THE COURT: Well, I would agree with you in that regard. But it’s

still, I think, relevant evidence in a sentencing decision,

and that’s the reason I’m letting it in.

[DEFENSE COUNSEL]: Very well, Your Honor.

In his closing argument, the prosecutor told the jury about Peer’s 2006

misdemeanor convictions for third-degree battery and criminal mischief and said that she

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had received probation for both offenses. He then went on to say that Peer’s next offense

was a felony committed while she was on probation for the 2006 convictions.

III. Discussion

Peer argues that the trial court expressly premised its ruling on relevance. When she

“renewed” her objection, she contrasted the violent nature of third-degree battery with the

absence of evidence of violence in her trial for delivery of a controlled substance. She

asserts that, instead of undertaking a Rule 403 analysis, the trial court simply repeated its

previous ruling on relevance. Peer relies on Peebles v. State, 2019 Ark. App. 483, 588

S.W.3d 555, in which this court reversed the appellant’s conviction for second-degree

sexual assault because the trial court erred in overruling the appellant’s objection to

evidence without conducting a Rule 403 analysis and finding only that the evidence was

relevant.

Peebles is distinguishable in that the trial court misapplied the law in commenting

from the bench that Rule 403 was inapplicable in the penalty phase. Peebles is also

distinguishable in that counsel objected, specifically arguing that the probative value of the

evidence was outweighed by the prejudice under Rule 403. Here, Peer did not cite Rule

403 and did not request or refer to any balancing analysis. While it is true that objections

need not cite specific rules to be sufficient, this court has made clear that a specific

objection is necessary in order to preserve an issue for appeal. Gilliland v. State, 2010 Ark.

135, 361 S.W.3d 279. To preserve an argument for appeal, there must be an objection to

the trial court that is sufficient to apprise it of the particular error alleged, and the appellate

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court will not address arguments raised for the first time on appeal. Id. Peer’s argument is

not preserved.

We conclude that Peer’s objection at the penalty phase was only to the

misdemeanor conviction’s relevance. To the extent Peer’s objection could be construed as

one pertaining to Rule 403, it was Peer’s burden to obtain a ruling from the trial court on

that basis. Baumann v. State, 2018 Ark. App. 564, 566 S.W.3d 494; Dolson v. State, 2018

Ark. App. 440, 558 S.W.3d 899 (recognizing that Dolson’s failure to obtain a ruling

rendered his argument not preserved for review).

In any event, Peer cannot—and does not even attempt to—demonstrate prejudice. In

general, a defendant who is sentenced within the statutory range, and short of the

maximum sentence, cannot establish prejudice from the admission of evidence at the

penalty phase. Shreck v. State, 2016 Ark. App. 374, 499 S.W.3d 677; Holley v. State, 2014

Ark. App. 557, 444 S.W.3d 884. Peer was convicted as a habitual offender of a Class D

felony, which is punishable by imprisonment of not more than twelve years. Ark. Code

Ann. § 5-4-501(a)(2)(E) (Supp. 2019). Peer received only a nine-year sentence, so she

cannot show prejudice from admission of the evidence.

Accordingly, we affirm Peer’sconviction for delivery of a controlled substance.