Curry v. State
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION I
No. CACR08-866
Opinion Delivered
March 11, 2009
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
FIFTH DIVISION
[NO. CR2007-2884]
MARSHALL DESHUN CURRY
APPELLANT
V.
HONORABLE WILLARD
PROCTOR, JR., JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
LARRY D. VAUGHT, Chief Judge
Marshall Deshun Curry was found guilty by a Pulaski County Circuit Court jury of
two counts of rape and was sentenced to a total of twenty-five years’ imprisonment in the
Arkansas Department of Correction. On appeal, he argues that the trial court abused its
discretion in admitting evidence of a prior bad act pursuant to the pedophile exception. We
affirm.
In September 2006, Curry, who was then seventeen years old, moved into the home
of Erica Austin. Austin had five children, one was Curry’s half brother. Austin invited Curry
to live with her after she learned that Curry had no where to live. At some point after Curry
moved in, Austin learned that Curry was sexually abusing A.C., her eleven-year-old daughter.
Austin removed Curry from her home and reported the incident to the police. Curry was
thereafter charged by felony information with two counts of raping A.C.
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One day before trial, Curry’s counsel moved to exclude excerpts from a statement that
Curry gave to police, wherein he admitted raping A.C. but also discussed holding down a
little girl in a garage when he was twelve. Curry’s counsel contended that the incident in the
garage was evidence of a prior bad act and was inadmissible pursuant to Arkansas Rule of
Evidence 404(b). The State argued that the evidence was admissible under the pedophile
exception to Rule 404(b). The trial court denied Curry’s motion.
At trial, Austin testified that she learned from her eight-year-old son, B.M., that Curry
and A.C. were doing something that they were not supposed to do. When Austin asked A.C.
what she and Curry had been doing, A.C. responded that Curry “had been sticking his penis
in [my] butt.” Austin confronted Curry with the accusation, and he denied it. Austin believed
Curry because she thought of him as one of her own children. A few days later A.C. told
Austin that “I was in my room sleeping, and [Curry] walked into my room with his ding-aling in his hand and up to my mouth asking me to suck it, and he promised this would be the
last time.” Austin testified that Curry later told her that “what [A.C.] said between me and
her is the truth.”
A.C. testified that Curry touched her breasts and her butt with his hands and penis. She
said that Curry’s penis “went inside my butt” and in her mouth. She said that it happened
often and that on one occasion, B.M. walked in the room when Curry was about to sexually
abuse her. B.M. testified that once he witnessed Curry drag A.C. upstairs with his hand on
her mouth, and then he saw them in the bedroom. A.C. was under the covers of the bed, and
Curry was partially undressed.
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Little Rock Police Detective Rob Bell testified that he took a statement from Curry,
which was audio taped. In that statement, Curry admitted he “messed” with A.C. He stated
that he penetrated her mouth with his penis approximately ten or twelve times. He further
stated that once B.M. walked in on him and A.C. He said “I thought I would probably never
get caught” and “I must have thought it was a favor.” In his statement, Curry also said “it
happened before,” immediately followed by his affirmation that when he was twelve, he held
a little girl down in a garage. The entire statement was played for the jury at trial.
On appeal, Curry does not challenge the sufficiency of the evidence supporting the
two rape convictions. His sole argument is an evidentiary one. It is well established that the
admission or rejection of evidence under Arkansas Rule of Evidence 404(b) is left to the
sound discretion of the trial court and will not be disturbed absent a manifest abuse of
discretion. Strong v. State, 372 Ark. 404, ___ S.W.3d ____ (2008).
Curry argues that the trial court abused its discretion when it permitted the State to
offer into evidence the portions of his statement wherein he mentioned the garage incident.
He insists that the evidence is nothing more than a prior bad act and that the pedophile
exception does not apply because the prior incident and the present allegations are dissimilar.
We agree.
According to Arkansas Rule of Evidence 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.” However, such evidence is permissible for various other purposes,
“such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Ark. R. Evid. 404(b). We have approved allowing evidence
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of similar acts with the same or other children in the household 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. Anderson v. State, 93 Ark. App. 454, 220 S.W.3d 225 (2005). This
is known as the “pedophile exception” to Rule 404(b). Anderson, supra. Further, it is
admissible to show the familiarity of the parties and antecedent conduct toward one another
and to corroborate the testimony of the victim. Id. The rationale for recognizing this
exception is that such evidence helps to prove the depraved sexual instinct of the accused. Id.
For the pedophile exception to apply, a sufficient degree of similarity between the evidence
to be introduced and the sexual conduct of the defendant is required. Strong, supra.
Curry argues that there is a lack of similarity between his prior bad act and the sexual
misconduct in the instant case. In his statement, Curry only affirms that “he held that little girl
down” “in the garage.” Absent from the statement is information that he sexually assaulted
the girl, the age of the girl, and her relation to Curry. The State responds that at the hearing
on Curry’s motion to exclude the evidence, more details about the prior incident were
provided to the trial court that established the pedophile exception.1 Referencing a purported
written confession Curry made as a juvenile following the garage incident, the State advised
the trial court that Curry was charged with rape of an eight-year-old girl but that he pled
guilty to sexual assault. The State also advised that the victim was a friend or neighbor of
1
The State also argues that Curry failed to object when the State provided the
details about the prior incident. This argument lacks merit as it is well settled that
arguments of counsel to the trial court are not evidence. Wright v. State, 67 Ark. App. 365,
1 S.W.3d 41 (1999). Because the State’s arguments at the motion in limine hearing were
not evidence, there was nothing to which Curry could have objected.
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Curry’s family. Lastly, the State advised that Curry confessed to inserting his penis in the
eight-year-old victim’s mouth. Based on this additional information, consisting entirely of
arguments of counsel, the trial court held that there were significant similarities between the
two incidents—specifically, the age of the victims and the nature of the sexual abuse. We hold
that the trial court abused its discretion when it admitted into evidence the excerpts from
Curry’s statement mentioning the prior incident.
The pedophile exception requires that there be a similarity between the “evidence to
be introduced” and the sexual conduct at issue, as well as evidence of an intimate relationship
between the defendant and the prior victim. Strong, 372 Ark. at ___, ___ S.W.3d at ____. In
the present case, the “evidence to be introduced” consisted solely of Curry’s statement—his
affirmation that “he held that little girl down” when he was twelve. There is no possible way
to infer from this limited evidence any similarity with the act at issue or the nature of the
relationship between the prior victim and Curry.
What the State is proposing is that the trial court be permitted to consider information
beyond the “evidence to be introduced” (Curry’s statement) in making a pedophile-exception
determination. However, the State cites no authority in support of its proposition. Moreover,
none of the details provided by the State beyond Curry’s statement were introduced as
evidence. As such, the jury did not hear any of the extra information upon which the trial
court relied to satisfy the pedophile exception. All the jury heard was that when Curry was
twelve he held down a little girl in a garage. This evidence clearly fails to meet the
requirements of the pedophile exception, and because it is nothing more than evidence of a
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prior bad act, it should have been excluded under Rule 404(b). Therefore, we hold that the
trial court abused its discretion in admitting this evidence.
Our holding on the evidentiary matter does not, however, require the reversal of this
case because the trial court’s error was harmless. When a trial court errs in admitting evidence,
the appellate court will affirm the conviction and deem the error harmless if the evidence of
guilt is overwhelming and the error is slight. Marmolejo v. State, 102 Ark. App. 264, ___
S.W.3d ____ (2008). To determine if the error is slight, we look to see if the defendant was
prejudiced. Id.
Pursuant to Arkansas Code Annotated section 5-14-103(a)(3)(A) (Repl. 2006), a
person commits rape if he engages in sexual intercourse or deviate sexual activity with another
person who is less than fourteen years of age. In rape cases, we have held that a victim’s
uncorroborated testimony is sufficient to support a conviction if the statutory elements of the
offense are satisfied. Strong, supra.
In this case, there was overwhelming evidence that Curry raped A.C. Not only did
A.C., the victim, testify that Curry raped her, but Curry unequivocally confessed to police
that he raped A.C. ten to twelve times. Also Curry stated to Austin that A.C.’s version of
events “[was] the truth.” These facts demonstrate that there was overwhelming evidence of
guilt and that Curry suffered no prejudice when the garage-incident evidence was presented
to the jury. Accordingly, we hold that the trial court’s error in admitting Curry’s prior bad
act under the pedophile exception was harmless.
Affirmed.
G LADWIN and K INARD, JJ., agree.
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