Luper v. State
2015 Ark. App. 440
| Ark. Ct. App. | 2015Background
- Defendant Mark Aaron Luper was convicted by a Benton County jury of raping his former stepdaughter S.H.; DNA evidence linked seminal fluid on S.H.’s clothing to Luper.
- S.H. testified to a pattern of sexual contact beginning in childhood and culminating in an incident in June 2012 she later described as penile penetration.
- Two former stepdaughters (Sydney and Shanna Chopper) testified they had been digitally penetrated by Luper years earlier; their testimony was admitted under the "pedophile exception" to Ark. R. Evid. 404(b).
- No criminal charges were filed on the Chopper girls’ reports; they had told investigators the contact might have been accidental. The jury was told charges were not filed.
- Luper sought to call former sheriff’s investigator C.G. Hines to testify that the deputy prosecutor declined prosecution because the girls had said the conduct may have been accidental; the trial court excluded Hines’s testimony.
- Luper appealed, arguing (1) the Chopper testimony should have been excluded because it was never the basis of criminal charges, and (2) the court erred in excluding Hines’s testimony as a defense-rebuttal and background explanation.
Issues
| Issue | Luper's Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of Chopper girls’ testimony under the pedophile exception to Ark. R. Evid. 404(b) | Testimony should be excluded because prior allegations were never charged or substantiated | Pedophile exception allows evidence of similar acts with other children to show proclivity; prior acts need not be charged | Admission was proper; pedophile exception does not require prior charges or convictions; jury was informed of lack of prosecution |
| Exclusion of investigator C.G. Hines’s testimony about why charges were not filed | Hines’s testimony was necessary to rebut and explain why State declined prosecution; offered as background, not for truth | Would be hearsay or improper opinion on credibility/prosecutorial decision; redundant because other witnesses covered non-prosecution and equivocation | Exclusion affirmed: testimony would be hearsay if used to prove prosecutor’s rationale, redundant, and inadmissible as commentary on credibility |
Key Cases Cited
- Flanery v. State, 208 S.W.3d 187 (Ark. 2005) (explains pedophile exception rationale)
- White v. State, 242 S.W.3d 240 (Ark. 2006) (requires similarity and intimate relationship for pedophile exception)
- Allen v. State, 287 S.W.3d 579 (Ark. 2008) (pedophile exception does not require prior act to be charged or substantiated)
- Greenlee v. State, 884 S.W.2d 947 (Ark. 1994) (pedophile exception helps prove depraved sexual instinct)
- Brown v. State, 424 S.W.3d 287 (Ark. 2012) (standard of review and framing of Rule 404(b) analysis)