Hortenberry v. State
2017 Ark. 261
| Ark. | 2017Background
- Appellant Brad Hortenberry was convicted by a Greene County jury of rape and sexual indecency with a child for performing oral sex on D.D., a child under 13; sentence: life (rape) and concurrent 72 months (indecency).
- The State sought to admit testimony from two other boys (C.R. and D.M., then teenagers) who alleged similar oral-sex acts occurred when they stayed overnight at appellant’s home, and from B.C., an adult with cerebral palsy who lived with appellant and testified about similar conduct when appellant bathed him.
- At pretrial hearing the circuit court admitted C.R. and D.M. under the "pedophile exception" to Ark. R. Evid. 404(b) and allowed B.C. under that exception and, alternatively, as independently relevant 404(b) evidence; the court found probative value outweighed prejudice.
- Trial evidence showed pattern: children slept on pallets in the living room, appellant slept nearby, provided pills/alcohol and gifts, and had caretaking access to the victims; jury convicted.
- On appeal Hortenberry argued the court abused its discretion admitting the three witnesses’ testimony under Rules 404(b) and 403; the State defended admission under the pedophile exception and independent relevance.
Issues
| Issue | State's Argument | Hortenberry's Argument | Held |
|---|---|---|---|
| Admissibility of C.R. and D.M. under the pedophile exception to Rule 404(b) | Testimony is similar to charged acts and shows intimate/caretaking relationship, proving depraved sexual proclivity | Testimony is impermissible other-acts evidence merely to show bad character | Court affirmed admission: sufficient similarity and intimate relationship satisfied the pedophile exception |
| Whether Rule 403 balancing was performed for C.R./D.M. (preservation) | Not contested on appeal; State relied on circuit court's overall rulings | Argued prejudice outweighed probative value | Issue not reviewed on appeal because appellant failed to obtain a Rule 403 ruling below (preservation defect) |
| Admissibility of B.C. under pedophile exception | State alternatively argued pedophile exception applies because B.C. was dependent and under appellant’s care | Appellant argued B.C. was an adult so pedophile exception does not apply | Court held pedophile exception does not extend to adults; admission under that exception was an abuse of discretion |
| Admissibility of B.C. under Rule 404(b) as independently relevant (and Rule 403) | B.C.’s testimony was independently relevant to show deliberate course of conduct targeting household males unable to resist; probative value outweighed prejudice | Appellant argued 404(b) and 403 exclusion should apply | Court affirmed admission under Rule 404(b) as independently relevant and found the trial court performed the Rule 403 balancing and did not abuse its discretion |
Key Cases Cited
- Craigg v. State, 424 S.W.3d 264 (Ark. 2012) (describes Rule 404(b) general rule and pedophile exception framework)
- Flanery v. State, 208 S.W.3d 187 (Ark. 2005) (pedophile exception rationale: evidence of depraved sexual instinct)
- Kelley v. State, 327 S.W.3d 373 (Ark. 2009) (similar-acts similarity analysis supporting admission)
- Parish v. State, 163 S.W.3d 843 (Ark. 2004) (defining "intimate relationship" for pedophile exception)
- Rohrbach v. State, 287 S.W.3d 590 (Ark. 2009) (requirements for pedophile exception: similarity and intimate relationship)
- Strong v. State, 277 S.W.3d 159 (Ark. 2008) (limiting pedophile exception to acts against children)
- Holland v. State, 471 S.W.3d 179 (Ark. 2015) (confirming Rule 403 exclusion still applies to pedophile-exception evidence)
- Green v. State, 231 S.W.3d 638 (Ark. 2006) (Rule 403 can exclude otherwise admissible 404(b) evidence)