In 2003, Appellant James Davidson was convicted of two counts of sexually abusing his step-granddaughter, C.D. At trial, the State sought to introduce into evidence a record of Davidson’s conviction for sexually abusing C.D. in 1994. Davidson objected to the introduction of this evidence on the ground that the 1994 conviction had been expunged under Act 346, also known as the Arkansas First Offender Act. The trial court overruled the objection and admitted the evidence under the pedophile exception to Ark. R. Evid. 404(b).1 Davidson appealed this ruling to the court of appeals, which reversed and remanded. We granted the State’s petition for review in order to decide the question of whether an expunged conviction is admissible under the pedophile exception to Rule 404(b). Because Davidson failed to include in the record proof that his 1994 conviction was in fact expunged, the trial court’s ruling is affirmed.2
According to Davidson, his 1994 conviction was expunged in 1997. Fie has failed to provide proof, however, that this conviction was expunged in accordance with either Ark. Code Ann. § 16-90-902 (Supp. 1995), which was in effect when he claims that the conviction was expunged, or Ark. Code Ann. § 16-93-303(b)(l) (1987), which was in effect when he was convicted and placed on probation.
Ark. Code Ann. § 16-90-902 is the current expungement statute, in effect since 1995. It provides:
(a) An individual whose record has been expunged in accordance with the procedures established by this subchapter shall have all privileges and rights restored, shall be completely exonerated, and the record which has been expunged shall not affect any of his civil rights or liberties, unless otherwise specifically provided for by law.
(b) Upon the entry of the uniform order to seal records of an individual, the individual’s underlying conduct shall be deemed as a matter of law never to have occurred, and the individual may state that no such conduct ever occurred and that no such records exist.
(Emphasis added.)
The previous version of the expungement statute, which was in effect in 1994, stated:
Upon fulfillment of the terms and conditions of probation or upon release by the court prior to the termination period thereof, the defendant shall be discharged without court adjudication of guilt, whereupon the court shall enter an appropriate order which shall effectively dismiss the case, discharge the defendant, and expunge the record.
Ark. Code Ann. § 16-93-303(b)(1) (emphasis added).
Davidson failed to include in the record either a petition to seal, order to seal, or notice of expungement, as is required by Ark. Code Ann. § 16-90-902, or a court order of expungement, as was required by Ark. Code Ann. § 16-93-303(b)(1). Davidson therefore has failed to show that his conviction was in fact expunged in accordance with either version of the statute. This court has repeatedly stated that it is the appellant’s burden to “bring up a record sufficient to demonstrate that the trial court was in error, and where the appellant fails to meet its burden, this court has no choice but to affirm the trial court.” Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999). Because Davidson has failed to prove that his 1994 conviction was expunged in accordance with statute, the trial court’s ruling is affirmed.
Affirmed; Court of Appeals Reversed.
Hannah, C.J., concurs.Although Ark. R. Evid. 404(b) generally prohibits the use of other crimes as character evidence, the so-called “pedophile exception” to this rule allows such evidence in child abuse and incest cases because it helps to prove the depraved sexual instinct of the accused. Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996). The other crimes evidence is particularly probative when it involves, as here, the same victim and the same course of conduct. Id.
Davidson not only failed to include proof of his expungement in the record designated for appellate review, he also failed to provide the trial court with such proof. The failure to provide the trial court with an expungement order distinguishes this case from others in which we ordered a substituted brief to be filed in accordance with Arkansas Rule of Appellate Procedure - Civil 6 for failure to file a sufficient record for review. See West v. West, 362 Ark. 456, 208 S.W.3d 776 (2005).