FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-15-154]
HONORABLE ROBIN F. GREEN, JUDGE
Wilkinson Law Firm, by: Shane Wilkinson, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
J. GLADWIN, JUDGE
Anthony Baumann appeals his September 29, 2017 conviction by
a Benton County jury on a charge of second-degree sexual
assault of E.S., for which he was sentenced to twenty
years' incarceration in the Arkansas Department of
Correction (ADC). Baumann argues that (1) the circuit court
erred in denying his motion to exclude the testimony of his
daughter, Tanya Bridges, regarding allegations of sexual
assault that presumably occurred twenty-eight years prior to
the trial pursuant to Arkansas Rule of Evidence 404(b)
(2017); (2) the circuit court erred in refusing to exclude
the same testimony pursuant to Arkansas Rule of Evidence 403
(2017); and (3) the State's questioning of Detective
Brian Hanna regarding other sexual-assault accusations
against Baumann warranted a mistrial. We affirm.
was charged with one count of rape and one count of sexual
assault in the second degree against a minor, E.S. Prior to
trial, the circuit court held a hearing on Baumann's
pretrial motion to exclude Bridges's Rule 404(b)
testimony. At the time of the hearing, Bridges was forty
years old. She testified that she is Baumann's biological
daughter and grew up with Baumann and that the sexual abuse
started in "probably the fourth or fifth grade."
Bridges testified that when she was in the sixth grade,
Baumann came into her bedroom and touched her on the arm and
shoulder. That type of event continued with his touches
progressing until eventually he was touching her vagina. She
explained that his visits to her room occurred at night while
other people were in the house, but she had a bedroom to
herself. As she got older, Baumann moved from touching her
vagina to forcing Bridges to touch his penis and to forcing
her to engage in oral and vaginal intercourse. She testified
that once, after vaginal intercourse, Baumann told her how
beautiful she was. The circuit court found Bridges credible
and stated that she would be allowed to testify. The circuit
court ruled that the testimony would be admissible under the
pedophile exception pursuant to Ark. R. Evid. 404(b) and that
it did not violate Ark. R. Evid. 403. Baumann renewed his
objection to Bridges's testimony at trial, and the
circuit court again denied his objection.
is the biological grandfather of V.B. V.B. and E.S. are
half-sisters and share the same mother. E.S., who was
thirteen years old at the time of the trial, testified that
her mother, Erika Shirley, was previously in a relationship
with Baumann's son, Adam. E.S. first started spending
time around Baumann when she was nine or ten years old.
During that time, she would occasionally stay the night with
Baumann and his wife. She testified that Baumann would come
into her room at night as she was getting ready for bed or
after she was already in bed. E.S. explained that she would
be in the bedroom by herself. Baumann would sit on her bed
and tell her to take off her shorts and underwear or lift up
her nightgown. He would touch her on her breasts and her
vagina underneath her clothes. E.S. also testified that
Baumann would lick her vagina. When he did this, her clothes
would be around her ankles, and his hands would be on her
knees, spreading her legs apart. E.S. stated that Baumann
also made her touch his penis while in the living room when
no one else was home. She testified that he told her not to
tell anyone or both of them would get into trouble.
testified at trial that when she was thirteen or fourteen,
Baumann would come into her room, caress her on the arm, and
touch her vagina, which eventually led to digital
penetration. Bridges also testified that Baumann had vaginal
intercourse with her when she was fourteen or fifteen, that
Baumann made her masturbate him, and that he made her perform
oral sex on him. She explained that one time after
intercourse, Baumann told her she was beautiful. Bridges
testified that the abuse stopped when she was sixteen and she
had her first boyfriend; Baumann solicited her one last time
to engage in sexual activity with him and then she could do
whatever she wanted to with her boyfriend.
trial, the State directed Detective Hanna to read into
evidence a portion of the Child Safety Center (CSC) interview
of E.S., which included the allegation that Baumann had been
accused of touching "his other granddaughters." The
circuit court sustained Baumann's objection to this
testimony but did not grant a mistrial sua sponte in the
absence of a request from Baumann.
circuit court granted Baumann's directed-verdict motion
only on the rape count based on a lack of evidence of
penetration of E.S. and denied Baumann's directed-verdict
motion as to the remaining count of sexual assault in the
second degree. The jury convicted Baumann of sexual assault
in the second degree, and the circuit court sentenced him to
a term of imprisonment of twenty years in the ADC and imposed
a fine of $15, 000 pursuant to a sentencing order filed on
October 17, 2017. Baumann filed a timely notice of appeal,
and this appeal followed.
to an evidentiary ruling are reviewed under the
abuse-of-discretion standard. Hortenberry v. State,
2017 Ark. 261, 526 S.W.3d 840. The abuse-of-discretion
standard is a high threshold that does not simply require
error in the circuit court's decision, but requires that
the circuit court act improvidently, thoughtlessly, or
without due consideration. Id.; Holland v.
State, 2015 Ark. 341, 471 S.W.3d 179. Additionally, an
evidentiary decision will not be reversed absent a showing of
prejudice. Hicks v. State, 2017 Ark. 262, 526 S.W.3d
to Rule 404(b), "[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in
order to show that he acted in conformity therewith."
Such evidence is permissible for other purposes, however,
"such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident." E.g., Duvall v. State,
2018 Ark.App. 155, at 5, 544 S.W.3d 106, 110. "Under
Ark. R. Evid. 404(b), evidence of other crimes will be
admitted if it has independent relevance, and its relevance
is not substantially outweighed by the danger of unfair
prejudice." Jones v. State, 349 Ark. 331, 339,
78 S.W.3d 104, 110 (2002). Evidence is independently relevant
if it tends to make the existence of any fact that is of
consequence to the determination of the action more or less
probable than it would be without the evidence. Cluck v.
State, 365 Ark. 166, 226 S.W.3d 780 (2006).
appellate courts recognize a "pedophile exception"
to Rule 404(b) "that allows the State to introduce
evidence of the defendant's similar acts with the same or
other children 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."
Duvall, 2018 Ark.App. 155, at 6, 544 S.W.3d at 110.
The rationale for the exception is that such evidence helps
to prove the depraved sexual instinct of the accused.
Jeffries v. State, 2014 Ark. 239, 434 S.W.3d 889.
Further, it is admissible to show the familiarity of the
parties, disposition, and antecedent conduct toward one
another and to corroborate the testimony of the victim,
see Fields v. State, 2012 Ark. 353, at 6, and to
show motive, intent, or plan. See Holland,
supra. Also, "Rule 404(b) makes no distinction
between substantiated and unsubstantiated conduct, or between
charged and uncharged conduct. This court has explicitly held
that our application of the pedophile exception does not
require that the prior act be charged or substantiated."
Holland, 2015 Ark. 341, at 8, 471 S.W.3d at 185.
the State may introduce evidence of unsubstantiated prior
allegations to show an accused's "proclivity to
offend," there are three essential restrictions on the
pedophile exception. First, courts "require that there
be a sufficient degree of similarity between the evidence to
be introduced and the sexual conduct of the defendant."
Id. Physical similarities between the alleged victim
and the 404(b) witness such as age and gender are relevant
when there is not "identical" conduct toward each
by the accused. See Stewart v. State, 2011 Ark.App.
658, at 7, 386 S.W.3d 583, 587. Second, it is necessary
"that there be an 'intimate relationship'
between the perpetrator and the victim."
Holland, 2015 Ark. 341, at 7, 471 S.W.3d at 184. The
relationship must be one "close in friendship or
acquaintance, familiar, near, or confidential."
Eubanks v. State, 2009 Ark. 170, at 4-5, 303 ...