FROM THE ARKANSAS COUNTY CIRCUIT COURT, NORTHERN DISTRICT
[NO. 01SCR-15-105] HONORABLE DAVID G. HENRY, JUDGE
Moore, for appellant.
Rutledge, Att'y Gen., by: Michael A. Hylden, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE.
Rodney Rayburn was convicted by a jury of one count of rape
and one count of criminal attempt to commit rape. He was
sentenced to twenty-five years of imprisonment on the count
of rape and fifteen years on the count of criminal attempt to
commit rape with both sentences to run consecutively. The
victim was his thirteen-year-old daughter, H.R. Rayburn
appeals his conviction, arguing that the circuit court's
admission of cumulative testimony of prior bad acts was
prejudicial to him and deprived him of a fair trial. He
argues that the circuit court abused its discretion when it
admitted evidence of incidents other than the ones with which
he had been charged. We disagree and affirm.
trial, H.R. testified that Rayburn raped her at least fifteen
times over the course of seven years. She testified that on
one occasion in 2014, he told her to go into the bathroom and
wait for him. Rayburn told his sons to go to their room and
go to bed. He then went into the bathroom, told H.R. to get
on her knees, and forced her to perform oral sex on him.
another occasion, Rayburn instructed her to go into his room,
and he instructed the boys to "fix a plate" for
their mother. Then, he came into the bedroom and told H.R. to
get on the bed and take off her pants. He performed oral sex
on her and then for approximately ten minutes unsuccessfully
attempted to penetrate her vaginally.
further testified that Rayburn attempted to penetrate her
anally on a trip in 2015. They were at a campground, and he
instructed her to go into the showers and wait for him. He
entered the shower, told her to undress, and began washing
her chest and private parts. After showering, he told her to
dry off and get on her knees. He forced her to perform oral
sex on him and then instructed her to bend over a bench. He
attempted to penetrate her anally but was unable to do so.
was also charged in relation to one incident in a mill
parking lot. H.R. testified that she, her brother, and
Rayburn had gone to pick up rice hulls in a truck. When they
arrived, Rayburn told her to go to a sleeper in the back of
the truck and get on the bed. He then entered the sleeper,
and again tried to vaginally penetrate her. There, he forced
her to perform oral sex on him.
circuit court maintains discretion to admit evidence.
Turner v. State, 2014 Ark.App. 428, 439 S.W.3d 88.
To reverse a circuit court's evidentiary ruling, it must
have abused its discretion, and prejudice must have resulted.
Id. Evidence of other wrongs or acts are not
admissible to show a defendant's bad character, but this
evidence is admissible to show proof of motive, opportunity,
intent, or plan. Ark. R. Evid. 404(b) (2017). The
"pedophile exception" to Rule 404(b) allows
evidence of prior sexual conduct with children to show the
defendant's proclivity for a specific act with a person
and helps show the depraved sexual instinct of the accused.
Chunestudy v. State, 2012 Ark. 222, 408 S.W.3d 55.
Under the pedophile exception, we look at factors such as the
time interval between the incidents, the similarity of the
incidents, and whether the defendant had an intimate
relationship with the victim. Parish v. State, 357
Ark. 260, 161 S.W.3d 803 (2004).
H.R.'s testimony of all the incidents fell within the
pedophile exception. Her testimony showed a pattern of
ongoing sexual abuse. Each incident showed that Rayburn would
isolate H.R. from her brothers and force her to perform oral
sex on him or attempt to penetrate her vaginally or anally.
Furthermore, there are few relationships that are as intimate
as a father and a daughter. H.R. testified that she was
afraid of her father and that he told her not to tell anyone.
In each incident, she was in her father's care. He would
isolate her from others in places such as his bedroom, a
bathroom, or a truck sleeper and sexually abuse her. This
testimony falls within the pedophile exception because it
shows Rayburn's proclivity for sexually abusing his
daughter and his depraved sexual instinct.
evidence is also more probative than prejudicial under the
pedophile exception. Rayburn argues that its admission
resulted in unfair prejudice that inflamed the jury. The
evidence simply does not support his argument. The evidence
is probative because it shows a pattern that Rayburn isolated
his daughter on multiple occasions to sexually abuse her. It
is also relevant to H.R.'s credibility because she
testified to several incidents rather than a single incident.
It further satisfies the pedophile exception because it shows
Rayburn's depraved sexual instinct. While the evidence is
prejudicial to him, there is nothing in the record that
suggests that its prejudice to him outweighed its probative
value. We hold that the circuit court did not abuse its
discretion in allowing H.R. to testify as to multiple
incidents of sexual abuse.
Rayburn asks us to overturn Chunestudy,
supra, to the extent that the pedophile exception
admits evidence without regard to Rules 403 and 404(b). In
the present case, the pedophile exception is satisfied;
H.R.'s testimony of other incidents when he raped her
meets the requirements of Rules 403 and 404(b). In any case,
we are powerless to overturn decisions by ...