[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-16-1814],
HONORABLE ROBIN F. GREEN, JUDGE
Standridge, for appellant.
Rutledge, Atty Gen., by: Pamela Rumpz, Asst Atty Gen., for
M. BROWN, Judge
Appellant appeals from his conviction by a jury of sexual
assault in the second degree and rape for which he was
sentenced to a total of fifty years imprisonment in the
Arkansas Department of Correction. On appeal, he argues that
(1) appellee did not prove that he committed sexual assault
in the second degree against A.H., (2) appellee did not prove
that he committed rape against H.M., and (3) it was
reversible error for the circuit court to allow the testimony
of Officer Nick Torkleson. We affirm.
December 2, 2016, a criminal information was filed charging
appellant with one count of sexual assault in the second
degree on information that "[o]n or about various dates
in 2009-2010, [appellant] did engage in sexual contact with
A.H., who was under the age of fourteen and was not
[appellants] spouse." An amended criminal information
was filed on May 16, 2017, adding one count of rape on
information that "[o]n or about 2009-2010, in Benton
County, [appellant] engaged in deviate sexual activity with
H.M., who was less than fourteen years of age."
Arkansas Rule of Evidence 404(b) hearing was held on December
18, 2017, to determine whether certain testimony from
Nicholas Torkleson should be admitted. Torkleson, a former
detective with the Rogers Police Department, testified to an
incident occurring on September 28, 2009, when appellant was
stopped for driving down the road while masturbating.
Appellant initially denied masturbating while driving but
admitted that he had done so "not a very long time
later[.]" Appellant had explained that he was a gay man
who had moved to the area from Kansas City and that one of
his friends in Kansas City had told him that he could
masturbate while driving down the road to find potential
"stood out in [Torklesons] mind" was appellants
statement during that encounter that "he was extremely
sexually frustrated because he missed his two boys who he had
not seen in years." Torkleson found the comment to be
"pretty alarming" and "pretty jarring[,]"
specifically that appellants "sexual frustration
related to these boys." "[A] short time" after
appellant made the comment, Torkleson expressed his concern
to appellant that a kid could see appellant exposing himself
while driving down the road, to which appellant
"volunteered that he was not attracted to
children." Appellant did not tell Torkleson of "any
specific steps he took to try to avoid a child view of
him." Torkleson did not ask appellant how old his kids
were; he did not even know if appellant had kids.
Appellant then testified that his "boys" were 31
and 36 in 2009 and that he stopped having contact with them
after his divorce in 1979. His sons were "little
boys" when he last had "meaningful contact"
with them. The circuit court then made the following ruling:
I find that the statement made during the traffic stop will
be admissible. I find that it is independently relevant and
that it has a tendency to make the existence of any fact that
is a consequence to determination of the action before the
Court more or less probable than it would be without the
evidence in that it shows motive and the defendants state of
mind, it shows his sexual proclivity towards as he referred
to them as his missing boys.
Find this on the basis, one, gender, that its of male
gender; two, he says missing his missing boys [sic], which
also sets out an age; and, three, that he links missing
boys with his sexual frustration. This is sufficiently
similar to charges for which the defendant is standing
before this Court, the rape and sexual assault of two young
boys, and for these reasons I find that the probative value
does outweigh the prejudicial impact and it is of
independent relevance; therefore, the statement made during
the traffic stop will be allowed.
trial in the matter was held on December 20, 2017.
testified that appellant is his great uncle— his
mothers uncle— and that appellant lived with H.M. and
his mother in "like, 2009" when he was nine years
old. Everyone had their own rooms. The situation "just
went downhill really fast, though." H.M. testified to
appellant coming into H.M.s room, turning off his radio,
sitting on his bed, and talking to him. What happened next
[Appellant] would start touching my penis, like, after, like,
my underwear was around my ankles. When this happened I was
laying down in my bed. [Appellant] would be like in the
middle, slash, like the foot kind of [sic]. My mom was home
but she was asleep. I know because I could hear her snoring.
Me and moms door- our rooms were next to each other.
[Appellant] would touch my penis with my clothes off. They
were around my ankles. I would put them down because he told
me to. When I say he, that is [appellant]. He would use his
hand to touch me. His hand would slightly go up and down
slowly. He didnt say anything to me when he would touch me.
When he touched me he has [sic] his clothes on. This happened
[one] time that I can remember. He told me not to tell nobody
or he would hurt me and my mom.
also testified to "other things that [he] was not okay
with" such as when appellant "put his hand on
[H.M.s] leg" or when appellant "put [H.M.s] penis
in [appellants] mouth and he would, like, go up and down,
kind of, too[.]" Appellant put his mouth on H.M.s penis
only once. H.M. stated that his clothes were around his
ankles whenever appellant did these things and that appellant
would threaten to hurt H.M. and his mother if H.M. told
anyone. H.M. "didnt tell anybody about [appellant]
coming into [his] room until [he] was in Vista Hospital. [He]
didnt tell anyone because [he] was scared [appellant] would
actually hurt [H.M.] and his mom" but he told at Vista
Hospital (Vista) because he "felt safer." Vista is
a mental hospital where H.M. received treatment in 2010. The
first person H.M. told what had happened was his therapist at
Vista. H.M. was ten at that time and "wasnt able to see
this case through because [he] was scared of seeing
became aware of A.H. coming forward about allegations
involving appellant in 2014, but he did not learn it from
A.H. He did not talk to A.H. about what appellant did to him;
"[t]hat wasnt something that was talked about a lot in
[his] family." A.H. is the son of H.M.s sister, Sheena
Mendoza. H.M. and his sister lived with their mother, along
with Sheenas children, among whom A.H. was included. When
H.M. learned about A.H. coming forward, he felt that he
"needed to do ...