Jerry Brown v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

JERRY BROWN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-279

APRIL 16, 2003

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT, FIFTH

DIVISION, [NO. CR 2001-158]

HONORABLE WILLARD

PROCTOR, JR., JUDGE

AFFIRMED

Appellant Jerry Brown was convicted in a bench trial of committing first-degree sexual abuse against his six-year-old granddaughter, D.S. The trial court imposed a sentence of ten years in prison, with eight years suspended.

Mr. Brown now appeals, raising three arguments for reversal. First, he argues that the trial court erred in allowing evidence of his prior bad acts. Next, he contends that the trial court erred in considering his prior bad acts during sentencing. Finally, Mr. Brown argues that the trial court erred in denying his motion for a new trial due to ineffective assistance of counsel. We disagree with his arguments and affirm.

D.S. testified that within the past few years she visited Mr. Brown, and that at the time he lived with his mother. D.S. stated that during her visits, she would be upstairs in his room while Mr. Brown's mother was downstairs. According to D.S., Mr. Brown exposed

hisgenitals to her and touched her inside her panties, both on several occasions. D.S. told her mother and a social worker about Mr. Brown's actions.

D.S.'s mother testified that Mr. Brown, who is her father, started sexually abusing her when she was nine or ten years old. She stated that Mr. Brown similarly exposed himself to her and also touched her genital area.

A.M. was a childhood friend of D.S.'s mother and testified that she, too, was sexually abused by Mr. Brown. A.M. stated that when she was between kindergarten and third grade she spent the night and Mr. Brown put his hands down her pants and also performed oral sex on her. She further stated that on one occasion he exposed his genitals to her.

B.B. testified that she is now twenty-five years old and that Mr. Brown became her stepfather when she was in the seventh grade. She testified that Mr. Brown started sexually abusing her before he married her mother, and that it continued until she was in the ninth grade. B.B. stated that Mr. Brown exposed his penis and made her perform oral sex on him. He also touched her inappropriately below the waist when they were watching a movie.

A.D. was Mr. Brown's stepson at one time, and he testified that on numerous occasions, Mr. Brown would perform oral sex on him or make A.D. touch Mr. Brown's genitals.

E.V. gave testimony about being fondled by Mr. Brown about ten years ago when she was five years old. On that occasion, she was riding in Mr. Brown's truck, and he let her sit on his lap and hold the steering wheel. E.V. stated that during this episode he put his hand in her pants.

Mr. Brown testified on his own behalf and acknowledged that the victim, D.S., has visited him and that they have been alone together. However, he denied touching her vaginal area in a sexual manner or showing her his penis. Mr. Brown admitted that he has a prior conviction for his sexual contact with B.B., for which he served five years' probation. However, he stated that he went to therapy and has since had no allegations against him. Mr. Brown admitted that he sexually abused B.B., and that when D.S.'s mother was a child he was sexually inappropriate with her. He also admitted that he engaged in sexual misconduct with A.M.

Mr. Brown's first argument on appeal is that the testimony of the five witnesses who each claimed to have been sexually abused by him should have been excluded under Ark. R. Evid. 404(b), which provides:

Other Crimes, Wrongs, or Acts. 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.

Mr. Brown acknowledges that the pedophile exception to Rule 404(b) allows evidence of prior sexual abuse to help prove the depraved sexual instinct of the accused. See Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994). However, he asserts that the pedophile exception does not apply in this case, primarily because the prior bad acts occurred ten to fifteen years ago. He contends that these acts were too far removed in time to be admissible. Mr. Brown notes that, since the time of his conviction and successful completion of probation, there have been no allegations of sexual abuse against him until the currentcharges. He submits that this fact alone demonstrates that he does not have a depraved sexual instinct.

Mr. Brown also argues that the prior sexual misconduct was inadmissible because it was not similar to the current allegations. D.S. testified that he touched her inappropriately during a game of "tickle," which was dissimilar to the testimony of the prior victims.

The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002). We hold that the trial court committed no abuse of discretion in applying the pedophile exception and admitting evidence of the prior sexual misconduct.

Under the pedophile exception, the State may introduce evidence of similar acts with 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. Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001). The pedophile exception is not limited to acts against children in the same household as the defendant, but may include those committed against children in the defendant's care or authority. Id.

In the instant case, testimony about the prior misconduct showed that Mr. Brown has demonstrated a pattern of fondling the genitalia of children and exposing his penis to them. In each case, the child was between five and thirteen years old and was under his supervision. The abuse against D.S. was similar in that she was six years old and testified that he exposed himself to her and touched her under her panties. The fact that the prior actsoccurred several years ago is a factor to be considered, but does not necessarily make the evidence inadmissible. See Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998). Under the facts of this case, we find no error in the trial court's conclusion that the prior sexual misconduct helped prove the depraved sexual instinct of the accused, or in the trial court's decision to admit the evidence.

Mr. Brown next argues that the trial court erred in considering the testimony of all five 404(b) witnesses during the sentencing phase of the trial. Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), he contends that only prior convictions may be used to increase a criminal penalty.

We reject Mr. Brown's second argument because Apprendi v. New Jersey, supra, does not support his proposition, and he has failed to support his argument with any authority or convincing argument. Assignments of error unsupported by convincing argument or authority are not considered on appeal. Jackson v. State, 47 Ark. App. 86, 885 S.W.2d 303 (1994). Moreover, there is nothing in the record to indicate that the trial court enhanced Mr. Brown's sentence based on the prior sexual misconduct. During the sentencing hearing, the trial court did not indicate that it was considering the disputed evidence.

Mr. Brown's remaining argument is that the trial court erred in denying his motion for new trial based on ineffective assistance of counsel. He argued below, and argues now, that his counsel should have called parents and children to testify that since he has been put on probation he has been around children and has acted appropriately. He submits that thiscould have reformed his character and helped show that he does not have a depraved sexual instinct.

We cannot address Mr. Brown's ineffective-assistance-of-counsel argument because he has not appealed from the trial court's order denying his motion for new trial. Criminal Rule of Appellate Procedure 2(a) provides, in relevant part:

(a) Notice of appeal. Within thirty (30) days from

(1) the date of entry of a judgment, or

(2) the date of entry of an order denying a post-trial motion under Ark. R. Crim. P. 33.3, or

(3) the date a post-trial motion under Ark. R. Crim. P. 33.3 is deemed denied pursuant to subsection (b)(1) of this rule, or

(4) the date of entry of an order denying a petition for postconviction relief under Ark. R. Crim. P. 37, the person desiring to appeal the judgment or order or both shall file with the trial court a notice of appeal identifying the parties taking the appeal and the judgment or order or both being appealed[.]

Mr. Brown's notice of appeal represents that he is appealing from the underlying order sentencing him to prison. However, it does not designate the order denying his new-trial motion, and for this reason he has taken no appeal from that order. See Daniel v. State, 64 Ark. App. 98, 983 S.W.2d 146 (1998).

Affirmed.

Pittman and Vaught, JJ., agree.