Charles Sammiel Elmore v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

CHARLES SAMMIEL ELMORE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-193

December 4, 2002

APPEAL FROM THE BENTON

COUNTY CIRCUIT COURT

[CR-2000-717-2]

HONORABLE DAVID S. CLINGER,

CIRCUIT JUDGE

AFFIRMED

Appellant, Charles Elmore, was convicted of one count of sexual abuse in the first degree, sentenced to ten years' imprisonment, and fined $10,000. On appeal, he argues that the trial court erred (1) in refusing to allow the testimony of two witnesses that was relevant to show the victim's motive, opportunity, intent, and plan or scheme to have appellant removed from the household and (2) in allowing the testimony of two witnesses pursuant to Arkansas Rule of Evidence 404(b) that he sexually abused them approximately twenty years ago. We affirm the conviction.

Appellant does not challenge the sufficiency of the evidence to support the conviction. The victim in this case was appellant's step-granddaughter, A.E., who was thirteen at the time of trial. A.E. lived with appellant and his wife, A.E.'s grandmother. A.E. testified that about two months after she and her brother moved in with her grandmother and appellant, appellant began touching her breasts and vagina through her clothes when they were alone. She said that she told her grandmother after she saw a film at school about inappropriate sexual touching. The authorities were contacted, and the investigation leading up to these charges ensued.

Appellant's first contention on appeal is that the trial court erred in not allowing the jury to hear the testimony of Jessica Goff, one of A.E.'s friends, and part of the testimony of Karen Kerr, a nurse at A.E.'s school. In a proffer, Kerr testified that sometime around April 2000 Goff came to her and told her that her mother's boyfriend had touched her inappropriately on her breast and on her thigh while they were traveling in a vehicle. Kerr told her that she had to report this to the authorities; she also called the abuse hotline and Goff's mother. Kerr stated that she did not know if the allegations made by Goff were true, she was just required to report such allegations.

Prior to Goff arriving in court to testify, appellant's attorney told the trial judge that he did not know what Goff would say because when he had spoken to her the day before she would not tell him what had happened and denied everything. He said that he did not know if Goff would deny what had happened when she came to court, but he anticipated that Goff would testify that she was A.E.'s best friend, that they had discussed Goff's sexual abuse allegations against Goff's mother's boyfriend, that A.E. learned that the boyfriend was removed from Goff's house, and that A.E. reported the alleged sexual-abuse allegations against appellant because she wanted him to be removed from the home.

When Goff arrived in court, appellant's attorney proffered her testimony to the court. Goff stated that she did have a conversation with a counselor while Nurse Kerr was presentabout a man inappropriately touching her, but it was all a misunderstanding. She said that she thought her mom's boyfriend, whom she referred to as her stepdad, had touched her inappropriately, but a few weeks after her conversation with Nurse Kerr and the counselor she realized that he just had his arm around her because he was being nice. She said that her mother's boyfriend still lived in the house with her, and that the police did not investigate the incident or talk to her about it. She said that she told A.E. once that the boyfriend had touched her and that it was a misunderstanding. She said A.E. told her that appellant was touching her, and she told A.E. to tell her grandmother.

Appellant argues that part of his defense was that A.E. was lying about the alleged sexual contact and that as a result of her knowledge about the incident between Goff and her mother's boyfriend, A.E. saw this as an opportunity to have her step-grandfather removed from the household. Appellant contends that the testimony of Goff and Kerr was relevant to show A.E.'s motive, opportunity, intent, and plan or scheme to get appellant out of the house.

Rule 401 of the Arkansas Rules of Evidence defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." "All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible." Ark. R. Evid. 402 (2002). A trial court's ruling on relevancy isentitled to great deference and will be reversed only if the trial court abused its discretion. Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994).

Appellant contends that the proffered testimony of Goff and Kerr establishes that the incident between Goff and her mother's boyfriend gave A.E. the motive to fabricate sexual abuse allegations against him so that she could have him removed from the house. He argues that A.E. wanted him out of the house because he was too strict a disciplinarian. However, as conceded by appellant, A.E. did not even testify about appellant's discipline at trial. A.E.'s grandmother testified that she thought appellant was too strict with the children sometimes, and she described herself as being more lenient. However, the only testimony from A.E. on the issue of discipline concerned her grandmother; she said that her grandmother used corporal punishment, and she had called her grandmother a "bitch" because she had taken her possessions, betrayed her, and lied to her. Nothing in A.E.'s testimony indicated that appellant's discipline of her was a concern.

Appellant states that his defense theory was "that the victim figured out that the way to get her grandfather out of the house was to allege that he had molested her. She knew it had worked for Jessica Goff, and it might work for her as well." He contends that such a ploy did in fact work, as he had to leave the house as a result of the allegations against him. However, the abstract belies those assertions. Nowhere in the proffered testimony of Jessica Goff does she indicate that her mother's boyfriend was removed from the house; in fact, Goff testified that he was still living in the house with her family. Furthermore, A.E.'s grandmother testified that appellant had already moved out of the house at the time A.E.made the allegations against him. In short, nothing in the proffered testimony of Jessica Goff and Karen Kerr is relevant to the issue being tried, whether appellant sexually abused A.E. In fact, such testimony simply does not bear out appellant's contentions. We hold that the trial judge did not abuse his discretion in refusing to allow the testimony of Goff and Kerr.

Appellant also contends that the trial judge erred in allowing the testimony from Kim Barker and Samantha Keller, pursuant to Arkansas Rule of Evidence 404(b), that appellant had sexually abused the two of them approximately twenty years earlier. Prior to trial, the State filed a motion asking the trial court to allow the testimony of Barker and Keller, who would testify that appellant sexually abused them when they were young teenagers from the late 1970s to the early 1980s when they lived with appellant and his family in California. The State asserted that such testimony met the criteria for admissibility under the pedophile exception to Rule 404(b) of the Arkansas Rules of Evidence. Appellant resisted this motion; although he admitted to the case investigator that he was investigated and arrested on charges involving inappropriate touching of the two girls, he contended that he was not convicted of any sexual offense, and he denied ever intentionally touching either girl in a sexually inappropriate manner. Furthermore, he noted that any such allegations leveled by Barker and Keller would have occurred about twenty years prior to the current allegations and that there have been no allegations of sexual misconduct in the intervening time period. He asked the trial court to prohibit the testimony as being more prejudicial than probativein connection with the current charge. After a hearing on the motion prior to trial, the trial judge granted the State's request to allow the testimony of Barker and Keller at trial.

Rule 404(b) of the Arkansas Rules of Evidence provides:

Evidence 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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Our appellate courts have recognized a pedophile exception to Rule 404(b). Pickens v. State, 347 Ark. 904, 69 S.W.3d 10 (2002). However, Rule 403 of the Arkansas Rules of Evidence provides, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." The admission or rejection of evidence pursuant to Rule 404(b) is within the sound discretion of the trial judge and will not be disturbed absent a manifest abuse of discretion. Pickens, supra. In Pickens, our supreme court held:

Evidence of other sexual offenses is allowed where the other sexual offenses involve a similar act of sexual abuse of children, and where such evidence shows a proclivity toward a specific act with a person or class of persons with whom the accused has had an "intimate relationship." As we noted in Berger, this requirement of an "intimate relationship" has been met in a number of cases in the past where the victim either lives with the criminal defendant in the same home or where the offenses were committed in the criminal defendant's home.

347 Ark. at 909, 69 S.W.3d at 13. Appellant does not argue that the instances of alleged sexual abuse were dissimilar, and he acknowledges that all three of the girls were living with him in a familial-type setting when the alleged abuse occurred; rather, his only concern isthat this evidence is more prejudicial than probative because it supposedly occurred more than twenty years ago.

Time is a factor to be considered when determining the probative value of evidence of a prior crime. Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998). In Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996), our supreme court upheld the admission of proof in appellant's trial for the rape of his daughter that he had pleaded guilty eleven years earlier to carnal abuse of his stepdaughter.

In the present case, approximately twenty years had elapsed between the incidents. However, it is unnecessary to determine if this amount of time rendered the testimony of Barker and Keller too remote and therefore substantially more prejudicial than probative. Appellant waived the issue of the alleged sexual abuse being placed into evidence when Mike Sydoriak, the investigator in A.E.'s case, testified without objection that when he asked appellant about the abuse in California, appellant told him that he was arrested for lewd and lascivious conduct with a minor, and that he had decided to take a plea to a lesser charge. After speaking with appellant, Sydoriak contacted the authorities in California and requested a copy of the report, which was sent to him. Sydoriak testified that based upon all of the information he had at the time, he then obtained a warrant for appellant's arrest. A party who does not object to the introduction of evidence at the first opportunity waives such an argument on appeal. Brooks v. State, 76 Ark. App. 164, 61 S.W.3d 916 (2001).

Affirmed.

Hart and Roaf, JJ., agree.