dissenting. I respectfully dissent. I believe the circuit court abused its discretion in admitting Robbie Sullivan’s testimony pursuant to Ark. R. Evid. 404(b), and for that reason, I would reverse and remand for a new trial. The record reflects the following testimony:
Q. What did you observe in regard to the actions of the defendant, Mr. Hamm, and other children at that lock-in?
A. During some unstructured time at the lock-in, the kids were pulling out their sleeping bags and kind of grouping off and Phillip pulled out or had brought a[n] air mattress, it was a full size air mattress and I glanced over and he had a little girl on the air mattress with him and can I show you how she was being held?
Q. Well, I don’t want you to come down from the stand but you can demonstrate by standing or — if that [is] appropriate, Your Honor?
A. He was lying on the air mattress on his back and he had the little girl straddling his pelvic area and at that time I pulled the . . . youth minister aside and told him that it wasn’t appropriate and I was very concerned.
Rule 404(b) provides:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
This court has recognized a “pedophile exception” to Rule 404(b), where the court has approved allowing 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. Flanery 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 majority claims that Ms. Sullivan’s testimony about what she observed at the lock-in is admissible under the pedophile exception due to the similarities between Hamm’s actions toward M.C. and his actions toward the little girl at the church. I am unable to join the majority because the record in this case does not reflect those similarities. Rather, the majority’s basis for the admission of the testimony is based upon an erroneous recitation of facts and a mischaracterization of the evidence.
The majority finds the following similarities: (1) both incidents involved female children; (2) M.C. was nine years old when the alleged abuse occurred, and the church incident involved a “little girl” of unspecified age; (3) M.C. testified that Hamm had her sit on his lap, and Ms. Sullivan testified that Hamm held the little girl astraddle his pelvic area; and (4) Hamm was acquainted with both children through his supervisory duties at church.
These so-called similarities simply do not show a proclivity for a specific act with a person or a class of persons with whom Hamm has an intimate relationship. Here, M.C. testified that Hamm touched her breasts and pubic area and digitally penetrated her vagina during her visits to his house. Ms. Sullivan’s testimony revealed that she observed an unidentified little girl sitting astraddle of Hamm’s pelvic area while he was lying down.
In Swift v. State, 363 Ark. 496, 215 S.W.3d 619 (2005), we held that the evidence of sexual abuse of the appellant’s adopted daughter and niece, both close familial relationships, showed a proclivity for that kind of conduct that would be relevant to the alleged rape of his son. We further noted that the two girls and the son were similar in age when the abuse happened, and in each instance, the appellant instructed the child not to tell anyone about the abuse.
In Flanery, supra, the victim testified that inappropriate contact with the appellant progressed from hugging and kissing to inappropriate touching of her breasts, to touching her vagina, and finally to oral sex and sexual intercourse. She further testified that, after the inappropriate contact, the appellant would apologize. The appellant argued that the testimony of his daughter concerning alleged inappropriate contact was inadmissible. She testified that her father asked her to lay on her stomach, and then proceeded to put his hands inside her clothing and rub her buttocks, as well as touch her vaginal area outside her clothing. Once the inappropriate touching had concluded, the appellant’s daughter was told not to tell her mother. We stated:
Here, though 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.
Flanery, 362 Ark. at 315, 208 S.W.3d at 190; see also Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992) (affirming trial court’s decision to admit a witness’s testimony of sexual abuse to show a pattern of behavior by the appellant and noting that the abuse began when both the victim and the witness were approximately nine years old and progressed from fondling to intercourse).
The majority likens the conduct observed by Ms. Sullivan to an act of sexual abuse, even though Ms. Sullivan did not testify that she observed an act of sexual abuse. Nor did Ms. Sullivan ever testify that, while holding the little girl, Hamm was rubbing against her. As such, the majority’s finding that the jury might have believed that Hamm was engaging in frottage with the little girl is wholly improper.1
Further, I disagree with the majority’s determination that even if Ms. Sullivan’s testimony is not admissible under the pedophile exception, it is still admissible because it is independently relevant to prove motive, intent, preparation, or plan. The majority states that “[w]ith the little girl described in Robbie Sullivan’s testimony, the contact at the lock-in could be seen as a prelude to the same pattern as existed in the prior two cases, i.e., meeting a young girl at church, a presumably safe environment, generating a close friendship with her, inviting her into his home, and then molesting her.” The use of the phrase “could reasonably be seen as a prelude” shows that the majority’s conclusion is based purely upon speculation and conjecture. Absolutely no evidence was introduced that the little girl at the lock-in was ever at Hamm’s residence or that she was ever molested by Hamm. Consequently, Ms. Sullivan’s testimony was simply evidence of another act that was admitted to prove the character of Hamm in order to show that he acted in conformity therewith. Evidence of this type is prohibited by Rule 404(b). Ms. Sullivan’s testimony did not provide proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident concerning the rape of M.C.; therefore, it was inadmissible. Because I believe that this erroneously admitted evidence was prejudicial to Hamm, I would reverse and remand this case.
Glaze, J., joins.The State’s assertion that Hamm might have been engaging in frottage was never presented at trial. Nor was it presented in the State’s original brief on appeal. It was not until the filing of its supplemental brief that the State put forth the theory that what Ms. Sullivan described appeared to be the sexual act known as frottage.