Johnston v. State, 2014 Ark. 110

Appellant Johnathan Johnston was convicted of three counts of rape of his nine-year-old daughter, with consecutive sentences of forty years each to run concurrently.
The alleged rapes occurred between December 21, 2006, and September 5, 2011; the victim testified to years of abuse during weekend visits.
Forensic evidence included semen on the victim’s underwear and a positive vaginal swab; hymenal tear indicated penetrating trauma.
The defense challenged the admissibility of about 37 pornographic images found on Johnston’s laptop, arguing no proof he viewed them and that they were irrelevant and prejudicial.
Investigator Cone testified the images were found in Johnston’s temp Internet files under his username; websites were not proven visited, some images likely from banner ads; about 2200 images existed, 188 in a report, 37 admitted at trial.
The circuit court admitted some 404(b) evidence and excluded two banner-ad images; Johnston objected and the court denied reconsideration; the verdict and judgment were entered February 7, 2013, with timely appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility under Rule 404(b)	Johnston argues the images were not independently relevant and improperly used as propensity evidence.	Johnston contends the images do not prove rape and are prejudicial under Rule 403.	Admissible under 404(b) as independently relevant.
Proof of viewing the pornography	There is no proof Johnston viewed the images; sites not proven visited.	Viewing proof is not required; circumstantial linkage to Johnston exists via username and ownership.	Viewing proof not required; circumstantial connection sufficient for admissibility.
Rule 403 balancing	Images’ prejudicial effect outweighs any probative value.	Images’ probative value, given CJ’s testimony and related evidence, outweighs prejudice.	Evidence not excluded under 403; prejudice not outweighing probative value given other evidence.
Harmless-error analysis	Admission of the images was reversible error affecting fairness.	If error occurred, it was harmless given overwhelming guilt evidence.	Any error was harmless; convictions affirmed.

Laswell v. State, 404 S.W.3d 818 (Ark. 2012) (abuse of discretion standard for evidentiary rulings; Rule 404(b))
Kelley v. State, 327 S.W.3d 373 (Ark. 2009) (harmless-error doctrine; weighing prejudice and guilt)
Spencer v. State, 72 S.W.3d 461 (Ark. 2002) (harmless-error when corroborating physical evidence exists)
Snell v. State, 721 S.W.2d 628 (Ark. 1986) (motive evidence under Rule 404(b))
Donovan v. State, 32 S.W.3d 1 (Ark. App. 2000) (Rule 404(b) evidence and relevance)
Cook v. State, 45 S.W.3d 820 (Ark. 2001) (independently relevant 404(b) evidence standard)