concurring. While I agree with the outcome in this case, I write separately to emphasize why Ark. R. Evid. 404(b) allows admission of the evidence in this case on the issue of motive. I first note that the majority states that “the appellant fails to recognize our cases where the victim of the prior sexual conduct was a child of a different gender than the current victim,” citing Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002); Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994). The majority also cites Baldridge v. State, 32 Ark. App. 160, 798 S.W.2d 127 (1990). In Spencer, the issue was whether the prior conduct was too remote in time. While the facts showed that the victims were of different genders, the question of whether the distinction in gender altered the analysis under Ark. Rule Evid. 404(b) was not raised or discussed. Similarly in Greenlee, the facts showed that the victims were of different genders, but again the issue of gender was not raised or analyzed. This court has not directly addressed the question of admissibility under rule 404(b) where the victims are of different genders. The court of appeals in Baldridge held that the trial court did not err in admitting evidence of prior similar sexual misconduct with girls of about the same age as appellant’s nephew, who was the victim in Baldridge, because it showed the appellant’s proclivity, for engaging in similar sexual misconduct with “pre-adolescent children who were related to the appellant.” Baldridge, 32 Ark. App. at 162-A.
The evidence in this case was that Swift assaulted three children related to him, that the children were between seven and nine years old, that the assaults occurred at a residence, and that he used his position as an older relative to obtain the opportunity to sexually assault the children. This evidence was admissible under Ark. R. Evid. 404(b).
This court first characterized the admission of evidence of prior sexual offenses against other children under rule 404(b) as the “pedophile exception” in Greenlee, supra. However, this court has long held in cases involving sexual crimes that other sexual offenses may be admissible to show motive or intent. See, e.g., Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987);Ward v. State, 236 Ark. 878, 370 S.W.2d 425 (1963); Hummel v. State, 210 Ark. 471, 196 S.W.2d 594 (1946).
In Pickens v. State, 347 Ark. 904, 69 S.W.3d 10 (2002), we cited Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001), in stating that under rule 404(b), evidence of other sexual offenses is allowed where the other sexual offenses involve a similar act of sexual abuse of children, and where such evidence shows a proclivity toward a specific act with a person or class of persons with whom the accused has had an intimate relationship. The evidence in the present case showed that Swift had a proclivity for engaging in sexual assaults of young children between seven and nine years of age over whom he had control, or in other words, with whom he had an “intimate relationship.” He used this relationship to gain the advantage and carry out the assaults. This evidence meets the requirements for admission. It was evidence of the specific act of sexually assaulting young children, which is a class of persons with whom he had an intimate relationship. Therefore, the evidence was properly admitted.