FROM THE HOT SPRING COUNTY CIRCUIT COURT [NO. 30CR-15-131]
HONORABLE CHRIS E WILLIAMS, JUDGE
Vess, for appellant.
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE.
August 25, 2016, a Hot Spring County jury convicted appellant
Darrell Sanders of two counts of rape. He was sentenced to a
total of 42 years' imprisonment in the Arkansas
Department of Correction (ADC). On appeal, he challenges the
sufficiency of the evidence and argues the circuit court
erred in granting the State's motion to admit evidence
under Arkansas Rule of Evidence 404(b). For the following
reasons, we affirm.
victim was fourteen-year-old S.J., who lived with him on
weekends in 2014. Sanders appeals his convictions and alleges
that the evidence is insufficient to support his second
conviction for rape because there was no evidence introduced
at trial that he was the guardian of the victim. He also
alleges that his now adult daughters' testimony that he
had sexually abused them when they were approximately
S.J.'s age was improperly admitted under Rule 404(b) of
the Arkansas Rules of Evidence.
Sanders argues the sufficiency of the evidence in his second
point on appeal, double-jeopardy considerations require this
court to consider a challenge to the sufficiency of the
evidence before the other issues on appeal. See Jones v.
State, 349 Ark. 331, 78 S.W.3d 104 (2002). To preserve
the sufficiency of the evidence for appellate review a
defendant must move for directed verdict at the close of the
State's evidence and at the close of all the evidence.
Ark. R. Crim. P. 33.1(a) (2016). The failure of a defendant
to challenge the sufficiency of the evidence at the times and
in the manner required in subsection (a) will constitute a
waiver of any question pertaining to the sufficiency of the
evidence to support the verdict or judgment. Ark. R. Crim. P.
did not move for a directed verdict at the close of the
State's case, nor did he move for a directed verdict at
the close of all evidence. No motion for directed verdict was
ever made, which is in contravention of Rule 33.1 of the
Arkansas Rules of Criminal Procedure. Thus, Sanders's
sufficiency challenge is now barred on appeal.
also argues that the circuit court erred in granting the
State's motion to admit evidence under Rule 404(b) of the
Arkansas Rules of Evidence. Before trial, the State filed a
motion to admit evidence of prior uncharged incidents of
deviate sexual activity or sexual intercourse by Sanders with
his two daughters who are now adults. A hearing was held and
the State presented the testimony of Sanders's daughters,
who made the allegations.
on the admissibility of evidence are matters within a circuit
court's discretion, and those rulings are not disturbed
on appeal absent a showing of an abuse of that discretion and
prejudice. Grant v. State, 357 Ark. 91, 93, 161
S.W.3d 785, 786 (2004). "Abuse of discretion is a high
threshold that does not simply require error in the trial
court's decision, but requires that the trial court act
improvidently, thoughtlessly, or without due
consideration." Id. Evidence of a person's
bad acts generally is not admissible to show action in
conformity therewith. Ark. R. Evid. 404(b) (2016).
Nevertheless, evidence of prior bad acts is admissible if
they are independently relevant, that is, relevant to show a
material fact other than that the accused is a criminal or
bad person. Spencer v. State, 348 Ark. 230, 236, 72
S.W.2d 461, 464 (2002).
of other crimes, wrongs, or acts . . . may . . . be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, . . . or absence of
mistake or accident." Ark. R. Evid. 404(b). Our supreme
court has recognized for over a century a "pedophile
exception" under which evidence of an accused's
prior sexual conduct with children is admissible "not
for the purpose of proving a substantive crime, but to show
the relation and familiarity of the parties, their
disposition, and antecedent conduct towards each another, and
as corroborative of the testimony of the [victim]."
Williams v. State, 103 Ark. 70, 78, 146 S.W. 471,
474 (1912). Such testimony is admissible "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." Parish v. State, 357
Ark. 260, 268, 163 S.W.3d 843, 847 (2004). It is also
admissible when it helps to show the depraved sexual instinct
of the accused. Id. For the pedophile exception to
apply, there must be a sufficient degree of similarity
between the evidence to be introduced and the charged sexual
conduct. Allen v. State, 374 Ark. 309, 316, 287
S.W.3d 579, 584 (2008) (citing Hamm v. State, 365
Ark. 647, 652, 232 S.W.3d 463, 468 (2006)).
Sanders's case, the victim, S.J., and Sanders's two
daughters, all were approximately the same age when Sanders
raped them. S.J. was fourteen. One daughter was thirteen, and
the other daughter remembers being eleven or twelve when the
sexual abuse started. Moreover, S.J. and the daughters were
all raped by Sanders in similar locations: a car, a church,
and in Sanders's home. All were vaginally raped. The
pedophile exception to Rule 404(b) is fully applicable here;
we hold that the circuit court did not abuse its discretion
in admitting the evidence. Accordingly, we affirm
Sanders's convictions and sentences.
Gladwin and ...