dissenting. I dissent from our denial of the State’s petition for rehearing because I think that this court erred in reversing and remanding this rape conviction for a new trial and in holding that evidence was erroneously allowed under the pedophile exception to Ark. R. Evid. 404(b). See Hamm v. State, 91 Ark. App. 177, 209 S.W.3d 414 (2005). There was evidence before the trial court that the less-than-fourteen-years-of-age victim became acquainted with Hamm through her church, where he worked in the children’s ministry; that appellant and his wife regularly had children from their church come to their house; that the victim became a regular there; that appellant told the victim that he loved her; and that he inappropriately touched her on several occasions, including an incident of inserting his finger into her vagina. The prosecution’s theory was that Hamm, in his ministry to the church’s children, used his position to gain access to potential victims and ultimately engage in sexual acts with them. The evidence at issue was the testimony of Robbie Sullivan that she had observed Hamm, at a back-to-school church lock-in, lying on his back on an air mattress, with another young girl,1 not the victim in this case, straddling his pelvic region.
As an initial matter, I do not agree with this court’s observation that the conduct in the prior incident “could have been entirely innocent.” See id. at 184, 209 S.W.3d at 419. There is nothing innocent about an adult male lying on his back and having a young girl straddle him, even when they are clothed, so that their pelvic regions are in contact. While, under Ark. R. Evid. 404(b) this evidence would not have been admissible were its purpose simply to prove Hamm’s character, in my opinion, the evidence was properly admitted under the pedophile exception to the rule.
The pedophile exception to Rule 404(b) allows evidence of similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. Flattery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005). The rationale for recognizing this exception is that such evidence helps to prove the depraved sexual instinct of the accused. Id. The Flanery court rejected the defendant’s argument that the trial court should have disallowed testimony by his daughter because the acts complained of by the young rape victim and those testified to by the daughter were not similar in nature:
[TJhough the specific acts complained of are not identical, the victim and the witness were similar in age when the abuse happened. Further, both girls were living in the home of the appellant and looked on him as a father figure at the time of the abuse. In each case, the appellant attempted to rationalize his behavior in some way. Moreover, both girls testified to inappropriate touching of the vaginal area. In light of the similarities in age and presence of the victims in the same household, we hold that the circuit court did not abuse its discretion in allowing Amanda’s testimony.
Id. at 314, 208 S.W.3d at 190. See also Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994).
I agree with the State’s arguments that the testimony here is relevant to show Hamm’s depraved sexual instinct and to make more probable the prosecution’s theory that he used his position in the church to gain access to potential victims and ultimately engage in sexual acts with them. Thus, I would hold that the trial court did not err in allowing the testimony, and I would affirm the conviction.
Vaught, J., joins.Although the record does not reflect the age of the other girl, she was described by Sullivan as “a little girl ”