Appellant, accused of engaging in deviate sexual activity with a person under the age of eleven, was charged with five counts of rape. The jury found appellant guilty of three of the charges and appellant was sentenced to ten years on each charge with two of the sentences to run concurrently. For his appeal, appellant argues four points for reversal: 1) that his confession was not voluntary and should have been suppressed; 2) that the trial court unduly restricted examination of a witness and the victim; 3) that it was error for the trial court to allow the victim to testify about other wrongs committed by appellant; and 4) that the state improperly questioned appellant about prior acts and the trial court should have declared a mistrial. We do not agree with any of appellant’s arguments and affirm.
Appellant’s nephew, aged nine, called the police and told them that he had been raped by his “Uncle Andy.” Several days later Floyd J. Hancock, a detective sergeant with the Springdale, Arkansas, police department, went to appellant’s residence and asked appellant to come to the station and answer some questions regarding his nephew’s complaint. Appellant replied that he had a job interview and would come in later, which he did. Sergeant Hancock, testifying at a Denno hearing, stated that he read appellant his Miranda rights and recorded appellant’s responses. To test appellant’s literacy, he asked appellant to read one of the questions out loud, which appellant was able to do. Appellant then initialed each of the questions and signed the form. Sergeant Hancock also signed the form.
The interview with appellant took approximately one hour. During that time, Sergeant Hancock discussed with appellant a seminar he had attended. He told appellant that he had learned at the seminar that adult males who have a sexual preference for young males were extremely difficult to help and that the first step towards getting help was to admit that they had a problem to begin with. Sergeant Hancock also told appellant that it was possible for the court to order counseling and there might be counseling at the penitentiary. Appellant then gave a statement in which he admitted he had allowed his nephew to perform oral sex on him on five different occasions, but he alleged that it was his nephew who always initiated it. It is appellant’s contention that Sergeant Hancock’s statements about counseling amounted to promises of leniency and therefore his statement was not given voluntarily and should have been suppressed.
There is a presumption that an in custody confession is involuntary and the burden is on the state to show the statement to have been voluntarily, freely and understandably made, without fear or hope of reward. Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979). The appellate court makes an independent determination based upon the totality of the circumstances, with all doubts being resolved in favor of individual rights and safeguards, and the court will not reverse the trial court’s holding unless it is clearly erroneous. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981). Any conflict in the testimony of different witnesses is for the trial court to resolve. Harvey, supra.
When we consider the totality of the circumstances we consider both statements the police made to the accused and how vulnerable the accused is. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). We find that no promises were made to appellant for leniency. In fact, Sergeant Hancock’s statements implied that appellant would be punished. Nor do we think appellant was particularly vulnerable. The questioning lasted about one hour, he was read his rights, and Sergeant Hancock took particular care to make sure appellant understood them. There was no indication that appellant was not sober, and appellant was allowed to come to the police station at his own convenience. We believe the trial court’s finding that appellant’s confession was made voluntarily is not clearly erroneous. See Davis, supra.
Appellant next argues that the trial court unduly restricted his right to examine witnesses. Robert Tomlinson was called as a defense witness to testify about a conversation he had with the victim prior to appellant’s arrest. The state objected on the grounds that it was hearsay and the court sustained the objection. Appellant then made a proffer of Mr. Tomlinson’s testimony. Tomlinson was expected to testify that while the victim was angry with Tomlinson he threatened to call the police and tell them that Tomlinson had raped him. Appellant then called the victim and attempted to elicit testimony about the threat to Tomlinson. The trial court found that the testimony would be irrelevant to the issue of appellant’s guilt. It is appellant’s contention that the evidence is relevant to show that the victim may have had a motive for his accusations and that they may not have any basis in reality. We agree with the trial court’s ruling.
The alleged threat would be a collateral matter and a witness cannot be impeached on a collateral matter by calling another witness to contradict the testimony of the first witness. Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982). An issue that cannot be independently proven is collateral. Kellensworth, supra. The proper time to raise the matter was on cross examination of the victim, and appellant failed to do this. In his ruling, the trial judge specifically stated that the victim was expected to deny making the threat. At that point, it would become improper to allow Tomlinson to testify that the threat was made. Such a tactic would have distracted the jury from the main issue and wasted time. Kellensworth, supra.
Appellant also contends that it was error for the trial court to refuse to exclude the victim’s testimony of other wrongs committed by appellant. By agreement, the state was confined to charging appellant with only the five instances of oral sex to which appellant had confessed. At a pre-trial hearing the court declined to rule on the admissibility of evidence regarding instances of anal sex. During the trial the victim was allowed to testify about the instances of anal sex.
U.R.E. Rule 404(b) makes admissible evidence of other crimes, wrongs or acts for the purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The evidence must have relevancy independent of a mere showing that the defendant is a bad character. Collins v. State, 11 Ark. App. 282, 669 S.W.2d 505 (1984).
In appellant’s confession he denied that he was the one that made sexual overtures to the victim; he claimed that it was the victim who initiated any sexual contact. At trial, appellant denied that there had been any sexual contact at all. He alleged that he made the statement he did only because he was “ready to get out of there and go home.”
In trials for incest or carnal abuse the state may show other acts of intercourse between the same parties to show the relation and intimacy of the parties, their disposition and antecedent conduct toward each other. Collins, supra. We believe the evidence complained of by appellant was relevant to show that appellant’s participation was not just passive acceptance of his nephew’s advances, as he alleges.
Appellant’s last argument regards the court’s refusal to grant a mistrial after the state had alluded to prior similar conduct. During cross examination of appellant, the state asked him if he had ever been offered therapy. Appellant denied it and then the state asked if he had ever done anything like this before. Again appellant’s response was no. The state then asked, “Wasn’t there a time, three years ago, when something like this happened and you had a chance to get some therapy?” Appellant then objected and requested a mistrial. The trial court refused the request but did admonish the jury to disregard the statement. It is appellant’s argument that the admonishment did not erase the prejudice formed in the minds of the jury. We disagree.
Appellant relies on the case of Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983), in which the prosecutor asked the defendant if he had previously pled guilty to raping an eleven-year-old girl and been sentenced to thirty years. In that case, the Arkansas Supreme Court found that a mistrial should have been granted. However, that case can be distinguished from the one at bar. Here appellant was given a chance to deny the statement, appellant did not previously plead guilty nor was he convicted, and the allusion to previous misconduct was not specific. In Maxwell, supra, the court noted that it was obvious that the prosecutor’s remarks were deliberate. There was no evidence of any deliberate misconduct in this case.
The granting of a mistrial is a drastic remedy and should be resorted to only when justice cannot be served by continuing with the trial. Avery v. State, 15 Ark. App. 134, 690 S.W.2d 732 (1985). The trial court is vested with considerable discretion because of his superior position to determine the possibility of prejudice, and that discretion will not be reversed in the absence of manifest abuse. Avery, supra.
We do not think that the state’s remarks were prejudicial in light of the fact that appellant was charged with five counts of rape and only convicted of three. The trial court’s admonition was sufficient. An admonition from the presiding judge to the jury cures the prejudicial statement unless the error is so prejudicial that justice could not be served by continuing the trial. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). We do not find any abuse of the trial court’s discretion.
Affirmed.
Glaze, Corbin, and Cooper, JJ., dissent.