FROM THE CLEVELAND COUNTY CIRCUIT COURT [NO. 13CR-15-42]
HONORABLE DAVID W. TALLEY, JR., JUDGE
Robison & Zakrzewski, P.A., by: Luke Zakrzewski, for
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE.
Cleveland County jury convicted Jason McDaniel of
first-degree sexual assault of a minor victim, M.F., and
sentenced him to 30 years' imprisonment in the Arkansas
Department of Correction. McDaniel now appeals his
conviction, arguing that the trial court erred by admitting
evidence of prior sexual acts between M.F. and him. We
was initially charged with four counts of first-degree sexual
assault of the same minor victim for two acts that occurred
in June 2015 and two acts that occurred in July 2015. The
first two counts were nolle prossed by the State because the
alleged sexual acts occurred outside the Thirteenth Judicial
District. McDaniel was subsequently charged in the second
amended information with two counts of first-degree sexual
assault for engaging in sexual intercourse and/or deviate
sexual activity with the victim, M.F., on July 6 and July 8,
2015. He was convicted on the first count and acquitted on
the second count.
filed a pretrial motion and an amended motion in limine
asking the trial court to exclude evidence of sexual acts
between him and the victim occurring in June 2015. In his
motion, McDaniel argued that evidence of sexual contact with
the victim outside the Thirteenth Judicial District,
including communications between him and M.F. via social
media and text messages before July, were irrelevant or, in
the alternative, barred under Arkansas Rule of Evidence 403
because the evidence was more prejudicial than probative of
the counts charged and would only serve to mislead the jury.
In its response, the State argued that evidence of sexual
acts between M.F. and McDaniel in June 2015 were relevant as
the conduct involved the same victim and the same res gestae.
it was evidence relating to uncharged crimes, the State
argued that it was also admissible under the exception to
Arkansas Rule of Evidence 404(b) because it was "proof
of motive, opportunity, intent, preparation, plan, knowledge,
and identity." The State further maintained that the
probative value of the uncharged acts and communications
between appellant and the victim outweighed the danger of
unfair prejudice because appellant denied having sexual
contact with the victim, and the "[t]ext or other social
media messages referring to or suggesting sexual activities
by a man in his 40s with a 14 year-old girl are highly
probative when that man is alleged to have sexual contact
with that girl within a short time period of those
messages." The trial court agreed and denied
McDaniel's motion in limine.
sole argument on appeal is that the admission of the evidence
only served to inflame the jury because it fueled his
conviction and resulted in the jury's sentencing him to
the maximum term of 30 years' imprisonment for
first-degree sexual assault under Arkansas Code Annotated
section 5-14-124 (Repl. 2013). That statute provides, in
pertinent part, that a person commits first-degree sexual
assault if he or she engages in sexual intercourse with a
person who is not the actor's spouse and the victim is
less than eighteen years of age at the time of the offense
and the actor was in a position of trust or authority over
the victim. See Ark. Code Ann. § 5-14-124.
adduced at trial indicated that the victim was one of three
children of a single mother, Melanie Fitzgibbon. Fitzgibbon
testified that she met McDaniel through her children's
sports activities. Her younger daughter and McDaniel's
daughter were on the same basketball and softball teams.
McDaniel served as the coach of both teams, and M.F. assisted
him. During the spring and summer of 2015, Fitzgibbon worked
as a substitute teacher and took courses to obtain a
master's degree. McDaniel volunteered to help her during
this time by giving her children rides to practices and
games. He also took M.F. to physical-therapy appointments and
would occasionally give her a ride home from school.
Fitzgibbon testified that she trusted McDaniel and thought he
was an upstanding citizen of the community.
testified that on June 2, 2015, her mother gave her
permission to go to lunch with McDaniel. After lunch, he
drove M.F. to a logging road where they both removed their
clothes and almost had sexual intercourse inside his truck.
M.F. testified that she became scared so they stopped. Later
that day, M.F. and McDaniel exchanged several text messages
including the following in which M.F. explained why she was
[M.F.]: I had 2 reasons why I was.
[M.F.]: Cause you didn't have a condom & I'm
scared to death of getting pregnant cause my luck I know I
would & I was scared mom was wondering where I was. So