FROM THE SEBASTIAN COUNTY CIRCUIT COURT [NO. CR-2014-1164]
HONORABLE J. MICHAEL FITZHUGH, JUDGE
Law Office, P.A., by: R. Kevin Barham, for appellant.
Rutledge, Att'y Gen., by: Kristen C. Green, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, Judge.
Maciel appeals his conviction for second-degree sexual
assault of his stepdaughter, Y.C. On appeal, Maciel argues
that the circuit court erred in admitting into evidence other
sexual acts pursuant to the pedophile exception because (1)
the acts occurred after the charged crime; and (2) the
pedophile exception deprived him of equal protection of the
laws. We affirm.
December 16, 2014, the State charged Maciel with
second-degree sexual assault of Y.C. that occurred between
January 1, 2012, and November 1, 2014. Y.C. had reported that
on multiple occasions throughout that time period, Maciel had
entered her bedroom during the night and rubbed her vaginal
September 4, 2015, Maciel filed a motion in limine. He
informed the court that the State planned to introduce
testimony at trial that Maciel had penetrated Y.C.'s
vagina with his finger on two occasions while they were on a
trip to Mexico. He asked the court to exclude the evidence
because (1) the acts occurred outside the court's
jurisdiction; (2) the acts were not similar to the charged
crime; (3) the acts did not uniquely identify Maciel; (4) the
testimony was inadmissible under Arkansas Rule of Evidence
403 (2015); and (5) the testimony violated his due-process
rights pursuant to the Fifth and Sixth Amendments.
October 30, 2015, Maciel filed a second motion in limine. He
again asked the court to exclude the testimonial evidence
that he had penetrated Y.C. with his finger while they were
in Mexico. He reasserted his argument from the September 4,
2015 motion that the testimony was inadmissible under Rule
403 and added that the testimony was also inadmissible under
Arkansas Rule of Evidence 404(b).
court held a hearing on the motions on November 4, 2015. At
the hearing, Maciel's attorney moved the court to exclude
any testimony about the alleged acts in Mexico. He recognized
that the State sought to introduce the testimony under the
pedophile exception; however, he asserted that the exception
violate[ed] his rights to due process and that it treats
somebody with these charges under a different set of rules
than somebody charged with any other set of charges.
Therefore, it would violate his right to due process under
the Arkansas Constitution and the U[nited] S[tates]
additionally asserted that the anticipated testimony would be
highly prejudicial to Maciel. The court denied Maciel's
case proceeded to trial on November 9, 2015. At trial, Y.C.
testified that beginning in the summer of 2011, Maciel came
into her bedroom during the night and touched her vaginal
area. She testified that the assaults happened twice a month
for the next few years. Y.C. also testified that in January
and February of 2014, she went on a trip to Mexico with
Maciel, and while they were there, he penetrated her vagina
with his finger on two different occasions. She testified
that Maciel did not touch her sexually after the Mexico trip.
the testimony, the jury found Maciel guilty of second-degree
sexual assault and sentenced him to fifteen years'
imprisonment in the Arkansas Department of Correction. Maciel
timely appealed his conviction to this court. On appeal, he
argues that the circuit court erred in admitting into
evidence the testimony about the acts in Mexico pursuant to
the pedophile exception because (1) the acts occurred after
the charged crime; and (2) the exception deprived him of
equal protection of the laws.
unable to address the merits of Maciel's appeal because
Maciel failed to preserve the issues at the circuit court. It
is well settled that an appellant must raise the issue and
make an argument at trial in order to preserve it for appeal.
Raymond v. State, 354 Ark. 157, 118 S.W.3d 567
(2003). This is true even when the issue raised is
constitutional in nature. Id. If a particular theory
was not presented, the theory will not be reached on appeal.
case, Maciel made several arguments to the circuit court
against the admissibility of the testimony about the alleged
penetration of Y.C. in Mexico. As discussed above, he argued
that the testimony was inadmissible because (1) the acts
occurred outside the court's jurisdiction; (2) the acts
were not similar to the charged crime; (3) the acts did not
uniquely identify Maciel; (4) the testimony was inadmissible
under Rules 403 and 404(b); and (5) the testimony violated
his due-process rights pursuant to the Fifth and Sixth
Amendments. However, he did not argue to the circuit court
that the evidence was inadmissible because the acts in ...