Serrano v. State
Annotate this Case
Download PDF
Cite as 2011 Ark. App. 391
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CACR10-838
Opinion Delivered
DENISSE SERRANO
APPELLANT
MAY 25, 2011
APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT,
[NO. CR-09-283-2]
V.
HONORABLE GARY ARNOLD,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
CLIFF HOOFMAN, Judge
Appellant Denisse Serrano was convicted of two counts of permitting the abuse of a
minor. She raises three arguments on appeal regarding the admissibility of testimony and a
motion to disqualify the prosecuting attorney’s office. We find no error and affirm.
Appellant was charged with permitting the abuse of a minor, under Ark. Code Ann.
§ 5-27-221. Because appellant does not challenge the sufficiency of the evidence, only a brief
recitation of the facts is necessary. The charges stem from sexual abuse inflicted upon
appellant’s three children by her boyfriend Jeffery Garcia. In a separate trial, Garcia was
convicted of two counts of rape and one count of sexual assault in the second degree, and
his convictions were affirmed on appeal. Garcia v. State, 2011 Ark. App. 340. Appellant’s
three children testified at trial: MC1 (minor child one), a fifteen-year-old girl; MC2, a
Cite as 2011 Ark. App. 391
thirteen-year-old boy; and MC3, a twelve-year-old girl. MC2 and MC3 testified that they
were anally raped on multiple occasions over a period of a few years. All three children
testified that they, either together or separately, reported Garcia’s abuse to their mother on
three separate occasions. Appellant was convicted by a Saline County jury of two counts of
permitting the abuse of a minor, and she was sentenced to forty years in the Arkansas
Department of Correction.
For her first point on appeal, appellant argues that MC1’s testimony regarding being
abused by Garcia was improperly admitted against appellant. When the State called MC1 to
the stand, appellant asked the court to exclude her testimony regarding abuse by Garcia
because it did not go to the guilt or innocence of the appellant, due to MC1 not telling her
mother about this abuse. The prosecutor responded by stating that the State has the burden
of proving abuse occurred and that MC1’s testimony would be admissible under Rule 404(b)
as a pedophile exception to show that Garcia had the proclivity to sexually assault children.
The court agreed and overruled the objection. MC1 testified about being molested by Garcia
once when she was eight or nine years old, and she testified that she never told her mother
about this incident.
The decision to admit or exclude evidence is within the sound discretion of the
circuit court, and we will not reverse a circuit court’s decision regarding the admission of
evidence absent a manifest abuse of discretion. Hancock v. State, 2011 Ark. App. 174, ___
S.W.3d ___. Moreover, we will not reverse absent a showing of prejudice. Id.
2
Cite as 2011 Ark. App. 391
Appellant argues that the testimony at issue could not come in under the pedophile
exception because it did not describe an act done by her. The testimony she objected to
described acts done by her children’s abuser. She also argues that the act described in the
testimony was not even the basis for charges against her; the abuse against the other siblings
was the basis for her charges. She claims that the testimony prejudiced the jury against her
for abuse she did not inflict on this witness and could not have prevented and that there was
no probative value to this testimony.
The State concedes that Rule 404(b) and the pedophile exception did not apply here,
but instead argues that the testimony was an “integral part of MC1’s explanation of why she
wanted to warn her mother of the ongoing abuse of MC2 and MC3.” Arkansas Rule of
Evidence 404(b) provides as follows:
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.
The “pedophile exception” to Rule 404(b) allows for the admissibility of 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. Mason v. State, 2009 Ark. App. 598, 330 S.W.3d 445.
The testimony at issue here is the testimony of a victim about something Garcia, not
the defendant, did to her. Because the testimony objected to did not describe an act of the
defendant, the pedophile exception is inapplicable. The evidence of a similar act done by
3
Cite as 2011 Ark. App. 391
Garcia offered to show that he acted in conformity therewith in committing the abuse that
is the basis of appellant’s charges should have been excluded under Rule 404(b). However,
as stated above, we will not reverse the trial court’s admission of evidence absent a showing
of prejudice. The State argues that appellant cannot show that she was prejudiced by the
admission of this testimony because the evidence of abuse was overwhelming and appellant
does not challenge the evidence of abuse of MC2 and MC3. This court has said that even
when a circuit court errs in admitting evidence, we will affirm the conviction and deem the
error harmless if there is overwhelming evidence of guilt and the error is slight. Rodriguez v.
State, 372 Ark. 335, 276 S.W.3d 208 (2008). To determine if the error is slight, we look to
see whether the defendant was prejudiced by the erroneously admitted evidence. Id.
Prejudice is not presumed, and this court will not reverse a conviction absent a showing of
prejudice by the defendant. Id. When the erroneously admitted evidence is merely
cumulative, there is no prejudice, and a conviction will not be reversed for harmless error
in the admission of evidence. Id. The testimony here was cumulative as it was merely more
evidence of abuse inflicted by Garcia. MC2 and MC3 testified to being abused themselves.
Additionally, MC1 stated that she did not tell her mother or anyone about the abuse inflicted
upon her. Appellant was not prejudiced by the admission of evidence regarding abuse by
Garcia toward MC1 when much more evidence of abuse was admitted and the testimony
at issue did not incriminate appellant. Thus, any error was harmless, and we affirm on this
point.
4
Cite as 2011 Ark. App. 391
For her next point on appeal, appellant argues that the trial court allowed MC3 to
answer a pivotal question a third time after a timely, proper objection from defense counsel.
MC3 testified that prior to trial she had called her mother and asked if there was a number
she could call to help the case. Appellant gave MC3 a phone number for a man named John
Beck, and MC3 called him. MC3 testified on direct that she told Beck that she had lied
about her mom knowing about the abuse, but she testified that her statement to Beck was
not the truth. During redirect examination, the following exchange occurred over what
MC3 told Beck:
Q.
A.
Q.
And what you told him was not true? Is that right?
I don’t know.
MC3, I want you to think about it because it’s important. You have sworn to
tell the truth to these people. Tell them what the truth is. I don’t want there
to be any confusion about what the truth is.
A.
I’m not sure.
Q.
Did you tell your mother?
[Defense Counsel]: Your Honor, I’m going to object. That question’s been asked
and answered several times now.
The Court: Go ahead and ask the question.
Q.
Did you tell your mother?
A.
Yes.
Appellant argues that when a question has been asked and answered once, objecting
when it is asked again is recognized as a proper objection. Appellant argues that even though
the third question was phrased differently, it was seeking information already conveyed by
the witness in response to the two questions immediately preceding it. Appellant claims that
because the answer to the question went to the heart of her potential criminal liability, this
5
Cite as 2011 Ark. App. 391
was reversible error and the testimony would have been very favorable for her had the
objection been sustained.
The State argues that the trial court has broad discretion in eliciting testimony from
minor witnesses and that some latitude in allowing the State to ask leading questions is
permitted, particularly in cases involving the sexual abuse of a minor, where the natural
embarrassment and fear of the child can be expected to inhibit her testimony. Hamblin v.
State, 268 Ark. 497, 501–2, 597 S.W.2d 589, 592 (1980). The State argues that it is clear that
the trial court did not abuse its considerable discretion by allowing the State to ask MC3 a
repetitive question for the same reason that the State was allowed to ask leading questions of
the thirteen-year-old abuse victim in Hamblin. The factors noted in Hamblin were at play
here including the youth of the witness, her immaturity, and embarrassment. Furthermore,
when considering MC3’s testimony as a whole, it appears that she was attempting to protect
her mother by testifying that although her mother was told about the abuse, she did not
think her mother really knew or understood. Also, the question objected to was a different
question than the preceding two questions. Since MC3 distinguished between telling her
mother and her mother actually knowing, the questions had different meanings to her.
Furthermore, MC3 had already testified clearly that her mother had been told. Thus, it was
not an abuse of discretion for the trial court to allow the State’s question, and we affirm on
this point.
For her last point on appeal, appellant argues that the prosecuting attorney had a
potential conflict that should have mandated the recusal of his office to avoid the appearance
6
Cite as 2011 Ark. App. 391
of impropriety. Prior to trial, appellant filed a motion to disqualify the Saline County
Prosecuting Attorney’s office due to conflict of interest. The motion was based on the fact
that the children’s attorney ad litem in their Department of Human Services case was the
wife of the Saline County Prosecuting Attorney. On appeal, appellant argues that it was an
abuse of discretion for the trial court to deny her motion. The State argues, however, that
appellant failed to obtain a ruling on her motion. While appellant asserts that the trial court
denied the motion without a hearing, the State notes that appellant offers no citation to the
record to locate the court’s denial. As the State claims, we too have been unable to locate any
place in the trial record where the trial court denied the motion or where appellant again
raised this issue. In order to preserve a point for appellate review, a party must obtain a ruling
from the trial court. Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999). We will not
review a matter on which the trial court has not ruled, and a ruling should not be presumed.
Id. The burden of obtaining a ruling is on the movant; matters left unresolved are waived and
may not be raised on appeal. Id. As there is no ruling on this motion in the record, appellant
has failed to preserve this issue for appeal.
Affirmed.
G RUBER and G LOVER, JJ., agree.
7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
