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Hortenberry v. State

Supreme Court of Arkansas

September 28, 2017

BRAD S. HORTENBERRY APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE GREENE COUNTY CIRCUIT COURT [NO. 28CR-15-674] HONORABLE CHARLES BRENT DAVIS, JUDGE

          Stanley & Woodard, by: William J. Stanley, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

          JOHN DAN KEMP, CHIEF JUSTICE

         Appellant Brad S. Hortenberry was convicted by a Greene County jury of one count of rape and one count of sexual indecency with a child, for which he was sentenced to concurrent terms of life and seventy-two months, respectively. The victim of both crimes, D.D., was under the age of thirteen when appellant performed oral sex on him. For reversal, appellant contends that the circuit court abused its discretion by admitting evidence, in violation of Arkansas Rules of Evidence 403 and 404(b) (2016), that appellant performed similar sexual acts on two other boys, who are around the same age as D.D., and on a physically disabled man who lived with appellant. We affirm.

         I. Factual and Procedural Background

         A. Pretrial

         On November 17, 2015, the State filed a felony information charging appellant with one count of rape, in violation of Arkansas Code Annotated section 5-14-103(a)(3)(A) (Repl. 2013), [1] and one count of sexual indecency with a child, in violation of Arkansas Code Annotated section 5-14-110(a)(1).[2] Appellant filed a pretrial motion in limine requesting that the circuit court prohibit the State from presenting any evidence of other crimes, wrongs, or acts allegedly committed by him. The State filed a motion in limine seeking a pretrial ruling that the testimony of three witnesses, C.R., D.M., and B.C., would be admissible under the pedophile exception to Rule 404(b) and that evidence of prior acts of sexual misconduct would be admissible to show appellant's motive, opportunity, intent, plan or knowledge, or absence of mistake.

         At a pretrial hearing on the admissibility of the testimony, the State averred that C.R. and D.M. are young boys who alleged that appellant had performed oral sex on them and that the sexual abuse had occurred whenever they spent the night at appellant's house and were in appellant's care. Appellant disputed that the boys had been in his care and objected to their testimony. The circuit court found that C.R. and D.M. are around the same age as the victim, D.D., that the sexual acts they described were similar to those acts alleged by D.D., and that the boys were all under appellant's care and supervision when the acts occurred. Accordingly, the circuit court ruled that the evidence was admissible under the pedophile exception to show "a depraved sexual preference or conduct" similar to that alleged by the victim. The circuit court also ruled that the evidence was admissible under Rule 404(b) because it had independent relevance to certain issues that the jury would have to decide, such as intent and motive.

         The State called B.C. to testify at the hearing. B.C., who was thirty-one years old at the time of trial, testified that he has cerebral palsy, that he has been confined to a wheelchair all his life, and that he is "supposed to be mildly mentally retarded." He further stated that because of his physical limitations, he needs assistance with things such as getting on and off a toilet, bathing, managing his finances, and preparing his meals. B.C. began living with appellant in Indiana when he was nineteen years old and did so for eleven or twelve years. B.C. moved with appellant from Indiana to Arkansas in 2006. B.C. stated that because he could not bathe himself, appellant would give him baths. B.C. testified that one time, appellant bathed him and then laid him on the bed and said, "I'm gonna show you what feels good." He said that appellant "sucked my private parts . . . and then jacked off into a paper towel." B.C. pushed appellant away. B.C. said that appellant did the same thing to him on one or two other occasions. B.C. also said that appellant told him that if he ever told anybody what had happened, appellant would get in trouble.

         Appellant argued that B.C.'s testimony was inadmissible under Rule 404(b) because it was being offered to show only that appellant was "some bad guy who commits bad acts." Appellant also argued that B.C.'s testimony did not fit within the pedophile exception because B.C. was an adult when the alleged sexual conduct occurred. The State responded that, despite B.C.'s age, because of his disabilities and because he was under appellant's care, the pedophile exception should apply to him. Alternatively, the State argued that B.C.'s testimony was admissible under Rule 404(b) to show appellant's plan, scheme, or modus operandi.

         The circuit court stated that it was not aware of any cases in which the pedophile exception had been applied to an adult with physical and mental disabilities but noted that those who prey on children could have the same "depraved proclivity for such activities" toward an older person who is physically or mentally unable to resist the sexual advances. The circuit court found that B.C. was under appellant's "care and control" and that B.C. depended on appellant for his basic needs. The circuit court had the opportunity to observe B.C. while he testified and noted that B.C. had "significant involuntary movement" and "exhibited some exertion . . . in an effort just to try to remain sitting on his seat during the course of his testimony." The circuit court found that B.C. was "relatively defenseless to fight off or challenge . . . the sexual approaches" of appellant. In addition, the circuit court found that the acts described by B.C. were "consistent with the type of sexual activity that [appellant] is accused of committing with the victim in this case." The circuit court ruled that B.C.'s testimony was therefore admissible under the pedophile exception. Alternatively, the circuit court ruled that "under strictly a 404(b) analysis, regardless of the pedophile exception, " B.C.'s testimony had independent relevance to show appellant's motive, intent, and absence of mistake or accident. The circuit court further ruled that the probative value of B.C.'s testimony outweighed its prejudicial effect and that it would be admissible at trial.

         II. Trial

         D.D., the victim in this case, was thirteen when he testified at trial. D.D. was a friend and classmate of appellant's stepson, D.H. D.D. testified that he and D.H. played together at appellant's home. D.D. sometimes spent the night there. When staying overnight, D.D. slept on the living room floor on a pallet, and appellant slept in a chair in the living room. D.D. testified that appellant touched D.D.'s penis with his mouth "fifteen or more times." D.D. stated that appellant would put D.D.'s penis in his mouth and ...


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