APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION. NO. 60CR-11-1159. HONORABLE BARRY ALAN SIMS, JUDGE.
Lassiter & Cassinelli, by: Erin Cassinelli; and Jeff Rosenzweig, for appellant.
Dustin McDaniel, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge. WHITEAKER and BROWN, JJ., agree.
KENNETH S. HIXSON, Judge
After a jury trial in October 2013 in Pulaski County Circuit Court, appellant Andrew M. Holland was found guilty of committing first-degree sexual assault against one teenage boy (XB) and second-degree sexual assault against another teenage boy (JD). Appellant was sentenced to concurrent prison terms, forty and thirty years respectively, for an effective prison term of forty years. A judgment was filed in November 2013, from
which appellant filed a timely notice of appeal.
Appellant does not challenge the sufficiency of the evidence to support his convictions. Rather, appellant argues on appeal that the trial court abused its discretion with regard to three evidentiary rulings: (1) by permitting the State to introduce evidence of appellant's alleged prior bad acts pursuant to the " pedophile exception" to Arkansas Rule of Evidence 404(b); (2) by excluding evidence of each victim's prior sexual conduct pursuant to the rape-shield statute, Arkansas Code Annotated section 16-42-101; and (3) refusing appellant access to JD's inpatient psychotherapeutic-treatment records, where the trial court deemed those records to be privileged pursuant to Arkansas Rule of Evidence 503. A trial court has broad discretion in making evidentiary rulings and will not be reversed absent an abuse of that discretion. Allen v. State, 374 Ark. 309, 287 S.W.3d 579 (2008). The State asserts that appellant has failed to demonstrate an abuse of discretion or any clear error. We affirm.
To place these trial court rulings in context, we discuss the substance of the testimony given at trial by XB, XB's mother, JD, and JD's mother. XB testified that he was presently twenty years old, and he knew appellant, who he called " Andy," because Andy was his mother's friend and a neighbor of theirs when XB was a boy. XB stated that appellant would discipline him or babysit him when his mother was at work; he acknowledged that his mother was unable to handle him. XB said that when he was age thirteen to fifteen, Andy sexually abused him when he visited Andy's house.
XB said that on one occasion Andy asked him to come to his bedroom and to sit with him, and after XB complied, Andy began rubbing his (XB's) leg. XB said that Andy put a pornographic DVD on television and then told XB to get undressed and to get into bed with him. XB described to the jury that he felt Andy move toward his body from behind in the bed, felt him grab his (XB's) penis and masturbate him, and then felt Andy's penis penetrate his buttocks. After a few minutes, Andy informed XB that he (XB) had a " big d**k," leaving XB in the bedroom with a bottle of lotion and instructions to " finish up." On another occasion, XB said that he went to Andy's house where Andy asked to watch XB masturbate, and he complied but would not make eye contact with Andy.
XB said that his mother requested Andy to discipline him for misbehavior, which Andy did by whipping him with a belt. XB added that Andy encouraged him to masturbate before school to see if it would help calm him down. XB was in and out of therapeutic homes and juvenile court during this time period. While in one therapeutic group home, he revealed the abuse to one of the house parents in charge there. XB was concerned that perhaps the sexual abuse was part of the reason he was misbehaving, but he regretted revealing the abuse when he realized that it would have to be reported to authorities. XB admitted that ...