Jeffrey Junkett, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR05-238

NOVEMBER 2, 2005

JEFF JUCKETT AN APPEAL FROM THE SALINE

APPELLANT COUNTY CIRCUIT COURT [CR-2003-243-3]

V.

STATE OF ARKANSAS HONORABLE GRISHAM A. PHILLIPS, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

A Saline County jury convicted appellant, Jeffrey Juckett, of first-degree sexual assault against M.B. and sentenced him to twenty years' imprisonment. For reversal, appellant does not challenge the sufficiency of the evidence; instead, he argues that the trial court erred in denying (1) his motion to exclude the doctor's testimony under Ark. R. Evid. 702 and (2) his motion to exclude the testimony of H.E. Finding no error, we affirm.

Because appellant does not challenge the sufficiency of the evidence, only a brief statement of the facts is necessary. When M.B. was eleven or twelve years old, she befriended appellant's daughter and often attended sleep-overs at appellant's home. On September 21, 2002, M.B. alleged that she awoke to find appellant's finger inside of her panties and rubbing back and forth on her vagina. According to M.B., appellant was rubbing his finger "inside the outer lips of my vagina." When she woke up, M.B. stated that appellant pulled his hand away and backed away from the bed. She continued to lie there scared. Appellant returned and rubbed M.B. again but on the outside of her panties. M.B. thereafter reached over and awoke appellant's daughter. Subsequently, M.B. informed her parents of the incident, and her parents notified the police.

Prior to trial, defense counsel sought to exclude any testimony of Arkansas Children's Hospital pediatrician Dr. Maria Esquivel that indicated anything other than her physical findings. It was undisputed that M.B.'s medical examination indicated no physical finding of abuse. The trial court ruled that it would not allow any witness to testify regarding whether he/she believed M.B. was telling the truth. At trial, Dr. Esquivel testified that, in cases of digital penetration or fondling, it is typical to have normal findings. Further, Dr. Esquivel was allowed to testify without objection that, based on the history and the consistency between the history and examination, sexual abuse was suspected. Appellant objected to Dr. Esquivel's testimony regarding M.B.'s history and behavioral changes. In each instance, the prosecutor stated that she could move on, which was done. Now on appeal, appellant asserts that the trial court erred in denying his motion to exclude the doctor's testimony under Ark. R. Evid. 702. That rule provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Specifically, appellant argues that it was unfairly prejudicial and misleading for Dr. Esquivel to give an opinion to the jury under the guise of an expert "only to opine that during her physical exam she found nothing unusual but that because of the story told to her by [M.B.] and her mom, she suspected sexual abuse." (Emphasis in original.)

As the State correctly points out, appellant did not object to the testimony of Dr. Esquivel that she suspected sexual abuse "based on the history and the fact that the history was consistent with the examination," and he argues for the first time that Dr. Esquivel's testimony was inadmissible under Ark. R. Evid. 702. Thus, appellant's failure to object to the testimony precludes him from arguing on appeal that the trial court erred in admitting the evidence. See Anderson v. State, 354 Ark. 102, 118 S.W.3d 574 (2003) (it was appellant's burden to obtain a ruling on his motion when it appeared that the trial court's previous ruling was being violated; and, because the trial court failed to rule on appellant's objection, appellant's argument was, therefore, procedurally barred). Moreover, we do not consider arguments raised for the first time on appeal. Dowty v. State, ___ Ark. ___, ___ S.W.3d ___(June 23, 2005). In his second point, appellant argues that the court erred in allowing the testimony of H.E., another friend of his daughter, who testified that, when she was eleven years old, appellant had inappropriately touched her during a sleep-over. She testified that appellant went under her shirt and touched her stomach but that she stopped him before he reached her breast. Specifically, appellant asserts that the pedophile exception was inapplicable to the case at bar because it is limited to evidence of "sexual acts" with children and that, because no charges were ever brought against him as it relates to H.E., there was no evidence that a sexual act took place. Appellant obviously misunderstands the exception.

At a pretrial hearing, the trial court determined that H.E. would be allowed to testify under the pedophile exception of Ark. R. Evid. 404(b). That rule 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 notice, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

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 absent a manifest abuse of discretion. Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998). We have recognized a "pedophile exception" to the rule, where the court has approved allowing evidence of 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. Flanery v. State, ___ Ark. ___, ___ S.W.3d ___ (May 12, 2005). Such evidence is admissible to show the familiarity of the parties and antecedent conduct toward one another and to corroborate the testimony of the victim. Hamm v. State, ___ Ark. App. ___, ___ S.W.3d ___ (June 1, 2005). Further, such evidence helps to show the depraved sexual instinct of the accused. Id.

In Hernandez v. State, supra, a witness other than the victim was allowed to testify regarding incidents of sexual abuse by Hernandez. She testified that Hernandez touched her with his hand in her "privacy under her clothes." Moreover, as in the instant case, there was no evidence that charges were brought against Hernandez for those allegations. Nevertheless, our supreme court determined that she could testify under the pedophile exception. Similarly, in Flanery v. State, supra, Flanery's daughtertestified that, ten years prior to trial, when she was fourteen years old, her father had asked her to lay on his stomach, after which he proceeded to put his hands inside her clothing, rub her buttocks, and touch her vaginal area outside of her clothing. Although the court determined that the specific acts were not identical, it nevertheless determined that the similarities in ages and testimony of inappropriate touching were enough to find no abuse of the trial court's discretion in admitting the testimony under the pedophile exception.

Appellant appears to suggest that, in order for H.E.'s testimony to be admissible under the pedophile exception, a conviction and a "sexual act" were necessary. Notwithstanding these erroneous beliefs, Rule 404(b) only requires evidence of similar acts-not "sexual acts"-with the same or other children. Obviously absent from Rule 404(b) is a conviction requirement. Here, both M.B. and H.E. were friends of appellant's daughter, who when over for sleep-overs, were touched inappropriately by appellant. Although the specific acts were not identical, the girls were similar in age and both testified to the inappropriate touching. There was no abuse of discretion. Accordingly, we affirm on this point.

Affirmed.

Pittman, C.J., and Bird, J., agree.