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In Baker, supra, appellant Baker contended on appeal that his due-process and fair-trial rights were violated by the admission of the testimony of his alleged rape victim.
Summary of this case from Jarrett v. BrandOpinion
No. CACR12-754
05-01-2013
JOSEPH BAKER APPELLANT v. STATE OF ARKANSAS APPELLEE
Shoptaw Law Firm, by: Dustin McDaniel, Att'y Gen., by:
APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO. CR-2009-59]
HONORABLE DAVID G. HENRY, JUDGE
AFFIRMED
BRANDON J. HARRISON, Judge
Joseph Baker appeals his convictions for rape and sexual assault in the second degree. He argues that the circuit court erred in allowing the testimony of his daughter, Jodi Davidson, under the pedophile exception to Ark. R. Evid. 404(b). We find no error and affirm.
In a criminal information filed 23 September 2009, Baker was charged with committing the offenses of rape and sexual assault in the second degree against his stepgranddaughter, N.B., when she was eleven years old. Baker filed a motion in limine seeking to prevent his twenty-five-year-old daughter, Jodi Davidson, from testifying that Baker began sexually abusing her when she was fourteen years old. Specifically, Baker expected Davidson to testify that he "committed acts of inappropriate touching in a sexual nature" against her at age fourteen; that he "forcibly committed the act of sexual intercourse" against her at age sixteen; that he supplied her with methamphetamine at the age of sixteen; and that he forced her to perform oral sex at the age of eighteen. Baker argued that this testimony was not admissible under Ark. R. Evid. 404(b) and that it would "only serve to arouse prejudice and anger in the jury." The court agreed with Baker that Davidson's testimony regarding the methamphetamine use was not relevant and should be excluded, but the court found that the remainder of Davidson's testimony was allowed under the pedophile exception to Rule 404(b).
A jury trial was held in February 2012, at which the State presented evidence that Baker had put his hand under N.B.'s nightgown and touched her breast and that he put his hand in her underwear and digitally penetrated her. In addition, Davidson testified that, when she was fourteen years old, Baker had put his hand up her shirt and felt her breast and had also put his hand down the front of her pants and touched her vagina. Davidson also testified that Baker raped her from the time she was sixteen until she left home at twenty.
The jury found Baker guilty of rape and sexual assault in the second degree, and the court sentenced Baker to terms of twenty-five years' imprisonment and five years' imprisonment, respectively, to run concurrently. Baker has now timely appealed to this court.
Although Baker purports to raise four points on appeal, each argument addresses whether the court abused its discretion in admitting Davidson's testimony. The admission or rejection of evidence under Rule 404(b) is within the sound discretion of the circuit court, and it will not be reversed absent a manifest abuse of discretion. E.g., Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). According to Ark. R. Evid. 404(b) (2012), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." This evidence is permissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. Our supreme court's precedent has recognized a "pedophile exception" to this rule, whereby evidence of similar acts with the same or other children is allowed to show a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. E.g., Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005). For the pedophile exception to apply, there must be a sufficient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant. See, e.g., White v. State, 367 Ark. 595, 242 S.W.3d 240 (2006). There must also be an "intimate relationship" between the perpetrator and the victim of the prior act. Id.
Baker's first two points on appeal argue that his constitutional rights to due process and a fair trial were violated by the admission of Davidson's testimony. Baker failed to make a due-process argument below, so it will not be addressed on appeal. See Clark v. State, 2012 Ark. App. 496, ___ S.W.3d ___ (explaining that issues raised for the first time on appeal, even constitutional ones, will not be considered because the trial court never had an opportunity to make a ruling). And while Baker did argue in his motion in limine, in boilerplate language, that the admission of Davidson's testimony would deprive him of a fair trial, this argument was not developed before the circuit court, and the court did not rule on this argument in its order denying the motion. We hold that this argument is also not preserved for our review. See Mashburn v. State, 2012 Ark. App. 621 (holding that failure to obtain a clear ruling on an issue from the trial court precludes appellate review of the issue).
Next, Baker argues that Davidson's testimony should not have been admitted because it was not similar enough to his alleged acts against N.B. Davidson testified that Baker had sexual intercourse with her from age sixteen to twenty, but there was no allegation that Baker had sexual intercourse with N.B. In addition, Baker asserts, Davidson was fourteen years old when her abuse started, and N.B. was eleven; therefore, reasons Baker, Davidson and N.B. "do not meet the factor of being similar in age when they became the Defendant's sexual abuse victims."
We reject Baker's argument on this point, which conveniently omits the fact that Baker's first instance of abuse against Davidson involved touching her breast and her vagina. That conduct is substantially similar to the abuse perpetrated against N.B. As to Baker's argument regarding the victims' age difference, it does not appear that he raised this particular argument below, so this court need not address it. Clark, supra.
Finally, Baker contends that Davidson's testimony should have been excluded under Ark. R. Evid. 403 because it was offered solely to bolster the State's case and to inflame and mislead the jury. Arkansas Rule of Evidence 403 dictates that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Again, the admission or rejection of testimony is a matter within the circuit court's sound discretion and will not be reversed absent a manifest abuse of discretion and a showing of prejudice by defendant. Solomon v. State, 2010 Ark. App. 559, 379 S.W.3d 489. We are not persuaded that the circuit court abused its discretion by deciding that Davidson's testimony about prior abuse did not overly prejudice Baker's case.
Affirmed.
GRUBER and BROWN, JJ., agree.
Shoptaw Law Firm, by: Stephen A. Shoptaw, for appellant.
Dustin McDaniel, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.