*1 v. STATE of Arkansas ANDERSON Gary CA CR 05-172
Court of of Arkansas Appeals delivered December Opinion Dustin D. Dyer, appellant. Beebe, General, Shue,
Mike Laura Attorney Assis- by: General, tant Attorney appellee. *2 found in Saline County A Judge. jury Terry Crabtree, in assault the first degree and sexual rape
appellant guilty terms of and twenty to consecutive thirty which he was sentenced that: three on He raises issues appeal. argues in years prison. Appellant to dismiss for in his motion trial court erred denying (1) trial; the trial court erred his to a (2) violation of speedy double and (3) his dismiss on motion to grounds jeopardy; denying his in limine to exclude erred in motion prior the trial court denying Ark. R. We affirm. in contravention of Evid. 403. bad acts from an convictions arose information Appellant’s present 8, 2004, he on wherein was charged filed Saline April County A.H. Previ- two counts of with involving step-daughter rape 22, 2002, had on on been arrested ously, September appellant on bench warrants issued in Hot sex-based County charges A.H., 29, 2003, child, A.M. On and another involving May in a Hot Circuit Court appellant pled guilty A.M., assault in the first sexual degree he was sentenced to cumulative terms of which twenty years’ imprisonment. bar, case motions that
In the filed several appellant pretrial on on the Hot Based were Spring County proceedings. premised 22, 2002, there on contended that his arrest September appellant had speedy-trial period present expired. Appellant also the former barred current charges argued prosecution further double contended grounds jeopardy. Appellant violated charges pursuit present plea agreement entered Circuit Court.1 County Finally, appel- moved in lant limine to the State introducing any preclude conduct with regard regarding took over course of several pretrial hearings place Shuffield, a child abuse with the Arkansas Doug investigator days. Police, conducted the State Spring County. investigation 14, 2002, He interviewed August during appellant sexual interview confessed contact with appellant having interview, under arrest Officer After the appellant placed he was Ford of Malvern Police but Frazier Department, hours. were later issued released after Bench warrants forty-eight regard motion in this argument raises no to this appeal. after formal filed regard appellant’s with A.H. and A.M. The warrants were served and appellant arrested on 2002. September
Detective Shuffield testified that was not arrested appellant he said that was not arising aware that A.H. in Saline after the raped 14 interview. He did know that had left Hot August hold, after the but he did not forty-eight-hour know where 4, He alerted DCFS on gone. September found, that A.H. could be not he contacted the Malvern Police issue a BOLO for and the Department Officer Ford testified he arrested family. based on conduct that occurred with A.H. in Hot Spring County. *3 was Lemons and represented by attorneys Phyllis Crain on the Hot Crain testified that Craig County charges. Spring concerned the Hot appellant’s guilty plea only Spring County cases, and he that said he was unaware of any allegations regarding conduct in Saline Lemons also testified that appellant’s County. involved the agreement in Hot plea only Spring and that she had no out knowledge any charges Garrett, County. Richard in Hot deputy prosecutor stated that the were based on events that took in that that at and the time of the place county, he was not aware that had committed plea, offenses appellant in Saline County. court, evidence, after denied hearing appel-
lant’s motions to dismiss motion in limine. Appellant renewed these motions various of the trial. stages trial,
At the A.H. testified that had been her appellant mother’s for five when boyfriend she was ten years, beginning outset, old and she, when was years she fifteen. At the ending her mother, brother, her and his mother lived in an appellant, apart- ment in Malvern. A.H. recalled had that she knee surgery 18, 2002. When she home August she got operation, lay television, on a mattress and she testified watching that appellant had sexual intercourse with her on the mattress. A.H. said that well, had her on occasions as and that she appellant raped previous her told mother about the her but that mother did not rapes, care and did not want to hear what she had to A.H. said that say. had been arrested in Hot because of appellant her and he that out of when he her raping just gotten jail raped 18. August all into house-trailer that moved A.H. further testified they She said that her after August rape. in Benton sometime not want mother did from DHS because her mother was running One her and what was on between her to going appellant. divulge bus, that she school she recalled she had off the after day, gotten and that television appellant couch watching sitting her She said that bottle into inserted a Coke vagina. plastic mother him A.H. witnessed this and asked stop. appellant’s testified that this hurt her further her to bleed. A.H. caused her one before school. testified that morning raped appellant her and inserted his her down When waking pulled pajamas up, mother witnessed her A.H. said that into vagina. appellant’s penis told Detective Shuff- this incident as well. A.H. testified she was certain ield about the She rapes before school occurred incident and intercourse Coke-bottle in Saline County. when that she was a friend of A.H.’s lived they
A.M. testified said that in the same Malvern. She apartment complex times, that he felt her breasts some her feely” fifty “touchy times, and her bottom around times. crotch about fifteen fifty When she she and A.H. stayed night slept bed, bedroom with When they only apartment’s appellant. was aware of saw touch she She rubbing said kiss on the A.H.’s she would vagina, mother and mother. She once front A.H’s lips appellant’s heard mother chiding doing appellant’s something *4 to to which she took mean sexual intercourse. inappropriate The first issue raises concerns his that he allegation was denied the to a trial. He contends that he was first right speedy 22, 2002, and that trial in case held arrested on this September 29, 2004, the exceeded limitations September speedy-trial Rule 28.1 of the Arkansas Rules of Criminal Procedure (b) period. months, a the State to defendant within twelve try requires The authorized Rule 28.3. time delay excluding any periods by filed; however, is for trial to run from the date the charge begins from date of the arrest if the defendant the time run the begins the offense or is held in to answer for same continuously custody the same Ark. R. Crim. P. 28.2(a). an offense based on conduct. trial a defendant demonstrates a facie case a Once prima speedy violation, the the is on the to show that was the burden State delay result the conduct or was otherwise defendant’s justified. Zangerl a is Ark. If defendant not time, within to trial the P. 30.1(a) R. Crim.
brought requisite that the defendant will be and such discharge discharged, is an the Id. absolute bar same offense. prosecution court ruled that had failed to estab lish a facie case because the evidence showed that prima 22, 2002, was arrested on September only regard in Hot which were charges Spring separate apart those in Saline We with the trial arising court’s County. agree is not defined as a offense. Rains v. ruling. Rape continuing 953 S.W.2d When victim testifies as nature, acts of of a different multiple separated point time, there is no offense as a continuing separate impulse for the commission of each offense. Id. The necessary record in this arrested, case is clear that abundantly charged, A.H. for his conduct that pled occurred in Hot guilty raping None officials in Hot nor Spring County. Spring County, matter, in that were appellant’s attorneys even aware that appellant similar conduct in Saline engaged Because these County. offenses, were different was not speedy-trial period triggered date of his arrest on the Spring Instead, the to run on the date the Saline period began County filed, trial, 2004. At the time of April September 29, 2004, Therefore, had not speedy-trial period expired. trial court ruled failed correctly to establish a facie that was not prima denied to a speedy trial. We affirm this point. fails for the
Appellant’s double-jeopardy argument same reason. His is assertion that the argument premised and Saline County offenses were based on the County case, same conduct. As that is not the is likewise argument without merit. final
Appellant’s
that the trial court erred in
argument
A.H. to
allowing
sexual activities that oc-
testify regarding
curred in Hot
and in
evidence of
allowing
convictions in Hot
When
crime is
Spring County.
alleged
incest,
child abuse or
we have
evidence of
approved allowing
acts
similar
same or other children
household when
it is
for a
helpful
act with a
showing proclivity
specific
person
*5
or class of
with whom the defendant has an
persons
intimate
State,
v.
343 Ark.
Affirmed. J., agrees.
Baker, J.,
Roaf, concurs. Layton In concurring. Gary Roaf, J g g e,e, ud ud for the rape Andree or fourteen the State was allowed introduce fifteen-year-old girl, into evidence the fact Anderson had been prosecuted of the same victim time frame in Hot same during Anderson had already guilty pled generally, In the A.H. referred to as “dad” and that she loved letters, wrote, that her mother him that she awaited return home. testified forced and missed write the her to letters.
460 The not is so much whether this evidence
charge. question but whether could be more to prejudicial, anything prejudicial Anderson’s to a fair trial.
Nevertheless, I the conviction. There is join affirming no basis in our law case for a reversal based a Rule simply 403 upon not where an is on trial. objection, certainly alleged pedophile The with this deals issue in a brief majority appropriately para State, 311, it relies v. 362 graph. Ark. upon, Flanery 208 S.W.3d treats (2005), 187 Rule 403 issue with similar Flattery’s will You search and low not brevity. find real high substantive discussion of Rule 403 annals of Arkansas law. cited, The abuse of discretion standard is a few always maybe facts followed the conclusion that no abuse of regurgitated discretion occurred. that,
The bottom line is
to Rule 404(b),
pursuant
court has
supreme
consistently recognized
“pedophile excep-
tion,” which
similar sexual
acts
same child or other children in the same household is admissible to
a
show
toward
act with a
“proclivity
or class of
specific
person
with whom the accused
an
has
intimate
persons
or to
relationship”
sexual
instinct
the accused.”
“prove
State,
depraved
v.
Dougan
827,
State,
330 Ark.
In Anderson asserts his brief that regard, his convic- tion was a conclusion foregone once State was allowed to the same had already pled guilty inform jury Of the same victim and crime against However, not unfair it is considered course he is right. *7 to allow such damning other
or indeed in many jurisdictions never takes The “balancing” really evidence as guilt. proof Nevertheless, our the trial court level or on either appeal. place, concur in mandates that I must affirming court precedent supreme this case. v. Denise BUSH Dana BRIDGES
Rodger S.W.3d259 CA 05-352 Court of Appeals delivered December
Opinion Pickell,for Slocum appellants. J. Madsen,
Carl for appellee. J. R. and Dana Rodger Appellants, Baker, J Circuit order e.e. Court udg udg appeal Karen have four aside an points appeal: setting adoption. Appellants aside of minor the trial erred adoption court setting appellants’ child; fraud trial court erred in committed that the finding appellants court erred in the court adoption; upon obtaining