William Mack Eubanks v. State of Arkansas
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Cite as 2009 Ark. 170
SUPREME COURT OF ARKANSAS
No.
CR08-953
Opinion Delivered
WILLIAM MACK EUBANKS,
APPELLANT,
VS.
April 2, 2009
APPEAL FROM THE FRANKLIN
COUNTY CIRCUIT COURT,
NO. CR 95-147,
HON. JAMES DANIEL KENNEDY,
JUDGE,
STATE OF ARKANSAS,
APPELLEE,
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
Appellant William Mack Eubanks appeals the judgment of the Franklin County Circuit
Court convicting him of the rape of S.T., his then-nine-year-old stepdaughter, and sentencing
him as a habitual offender to life imprisonment. Eubanks argues on appeal that the circuit
court erred by: (1) admitting testimony regarding alleged prior sexual misconduct pursuant to
the “pedophile exception”; (2) admitting testimony of the victim pertaining to medical
problems she experienced subsequent to the date of the rape in violation of Rule 401 of the
Arkansas Rules of Evidence; and (3) admitting testimony regarding prior bad acts in violation
of Rules 401, 402, 403, and 404(b) of the Arkansas Rules of Evidence. We find no error and
affirm.
Eubanks does not challenge the sufficiency of the evidence; therefore, only a brief
recitation of the facts is necessary. The State alleged that Eubanks, during one continuous
Cite as 2009 Ark. 170
course of conduct between May 1994 and June 1995, raped and digitally penetrated S.T. A
trial date was set for October 3, 1996; however, Eubanks did not appear. Eubanks was
subsequently arrested on August 5, 1997. A trial date was rescheduled for February 19, 1998,
and Eubanks again failed to appear. Eubanks was not arrested again until October 8, 2005,
after he was located in New M exico using a false identity. A jury trial was conducted on
November 16, 2006, which ended in a mistrial. A second trial commenced on March 20,
2008.
I. Rules 403 & 404(b)
A jury heard testimony from multiple witnesses including the victim herself, law
enforcement officials, medical professionals, and several others about the events and
circumstances occurring before, during, and after the rape. Eubanks was found guilty, and a
judgment and commitment order was entered against him on M arch 31, 2008. He filed a
timely notice of appeal on April 10, 2008. We relate the evidence in detail only as required
to understand Eubanks’s three assignments of error.
During Eubanks’s trial, the circuit court allowed testimony from another young
woman, R.E., who testified that she had also been molested by digital penetration by Eubanks
when she was a child. Eubanks contends that R.E.’s testimony was improper under Rule
404(b) because the evidence was offered to serve no other purpose than to demonstrate that
he must have committed the same acts against S.T. and because he did not have an intimate
relationship with her as the pedophile exception requires. He also claims error under Rule
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403, arguing that the probative value of the evidence was greatly outweighed by unfair
prejudice. The State avers that the circuit court correctly applied the pedophile exception to
Rule 404(b) and that the probative value of the evidence at issue was not substantially
outweighed by any danger of unfair prejudice.
The admission or rejection of evidence under Rule 404(b) is committed to the sound
discretion of the circuit court, which this court will not disturb on appeal absent a showing
of manifest abuse. See Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). We review a
circuit court’s decision to admit evidence over a Rule 403 objection under an
abuse-of-discretion standard as well. See Flanery v. State, 362 Ark. 311, 208 S.W.3d 187
(2005).
Rule 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.
Ark. R. Evid. 404(b) (2008). Evidence offered under Rule 404(b) must be independently
relevant to make the existence of any fact of consequence more or less probable than it would
be without the evidence. See Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008). In other
words, the prior bad act must be independently relevant to the main issue, in that it tends to
prove some material point rather than merely proving that the defendant is a criminal. See id.
This court has long recognized a “pedophile exception” to Rule 404(b). See id. We
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have approved allowing 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. See id. The rationale for this
exception is that such evidence helps to prove the depraved sexual instinct of the accused. See
id.
For the pedophile exception to apply, we require that there be a sufficient degree of
similarity between the evidence to be introduced and the sexual conduct of the defendant.
See Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006). We also require that there be an
“intimate relationship” between the perpetrator and the victim of the prior act. Id. at 652, 232
S.W.3d at 468–69.
Eubanks argues that the pedophile exception does not apply here because a parental
relationship did not exist between him and R.E. This court has specifically rejected a
requirement that the alleged victim of a prior bad act be a member of the defendant’s family
or household for the evidence to be ruled admissible under the pedophile exception. See
Parish v. State, 357 Ark. 260, 163 S.W.3d 843 (2004); Berger v. State, 343 Ark. 413, 36 S.W.3d
286 (2001). Here, the State sufficiently established the existence of the required intimate
relationship between R.E. and Eubanks. R.E. testified that as a child her mother had been
friends with Eubanks’s wife and that she was friends with their child, Chris. She and Chris
became friends when R.E. was about five or six years old. The two would spend the night
together frequently, and R.E. often spent the night in Eubanks’s home. The alleged
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molestation that R.E. testified about did not occur until R.E. was eight or nine—illustrating
that R.E. frequently spent the night at Eubanks’s home under the care of him and his wife for
several years. We hold that this evidence is sufficient to demonstrate a relationship “close in
friendship or acquaintance, familiar, near, or confidential.” Parish v. State, 357 Ark. at 270, 163
S.W.3d at 849.
We find Eubanks’s 403 argument to be without merit. Rule 403 provides that,
“[a]lthough relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by consideration of undue delay, waste of time, or needless presentation of cumulative
evidence.” Ark. R. Evid. 403 (2008). This court has noted that evidence offered by the State
is often likely to be prejudicial to the accused, but the evidence should not be excluded unless
the accused can show that it lacks probative value in view of the risk of unfair prejudice. See
Morris v. State, 367 Ark. 406, 240 S.W.3d 593 (2006).
In cases involving evidence subject to the pedophile exception, we have looked to the
similarities between the alleged prior conduct and the charged conduct to determine whether
they make the evidence probative on the issue of the accused’s motive, intent, preparation,
plan, and scheme. See id. When the similarities are significant, we have permitted the
evidence, despite the prejudice to the accused. See id.; Flanery v. State, supra. We have also
noted that the evidence is permissible when the similarities make it probative on the issue of
the accused’s deviate sexual impulses. See Flanery v. State, supra.
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In the instant case, Eubanks is alleged to have both digitally penetrated and raped S.T.
and to have digitally penetrated R.E. In addition, R.E. and S.T. were both, to a certain
degree, under Eubanks’s care at the time of the abuse. These similarities are significant and
probative on the issue of Eubanks’s deviate sexual impulses. Accordingly, we cannot say that
the probative value of the evidence at issue was substantially outweighed by any danger of
unfair prejudice.
II. Medical Testimony
During the State’s direct examination of S.T., the State elicited testimony regarding
the fact that S.T. was diagnosed with a brain tumor in 2005, which was surgically removed
but grew back. S.T. testified that she had a second surgery and underwent both radiation and
chemotherapy. For his second point on appeal, Eubanks contends that the testimony should
not have been admitted because it was irrelevant pursuant to Rule 401 and because the
prejudicial effect outweighed any probative value pursuant to Rule 403. The State first argues
that Eubanks did not preserve his challenge to the testimony for appellate review because he
did not object at the first opportunity. Alternatively, the State maintains that the circuit court
did not abuse its discretion in allowing the testimony and that Eubanks cannot show that he
was prejudiced by it.
We have previously held that the circuit court is afforded wide discretion in
evidentiary rulings. See Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). Specifically, in
issues relating to the admission of evidence under Ark. R. Evid. 401 , 403, and 404(b), we
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have held that a circuit court’s ruling is entitled to great weight and will not be reversed
absent an abuse of discretion. See id. This court will, likewise, not reverse absent a showing
of prejudice. See id.
Before S.T.’s testimony regarding her brain tumor began, counsel for Eubanks
objected, stating in part, “I understand she can testify to what medical problems that had [sic]
but I don’t want her getting into diagnosis.” A brief discussion took place, and Eubanks’s
counsel agreed that he did not have a problem with testimony regarding the fact that S.T. had
her head operated on and tumors removed. After a line of seventeen questions regarding that
medical issue, counsel for Eubanks then objected to its relevance. We have held that an
argument is not preserved for our review when an appellant does not object at the first
opportunity to a line of questioning. See, e.g., McClain v. State, 361 Ark. 133, 205 S.W.3d 123
(2005). This is because an appellant’s failure to make a contemporaneous objection prevents
him from asserting on appeal any error on the part of the circuit court for admitting the
evidence. See id. We have stated that if a contemporaneous objection is not made during a
jury trial, the proverbial bell will have been rung and the jury prejudiced. See id. Here,
Eubanks’s counsel did not make a timely objection with regard to relevance.
III. Prior Bad Acts
During the cross-examination of Carrie Eubanks, Eubanks’s wife and S.T.’s mother,
the State elicited testimony that Eubanks hit her. Eubanks contends on appeal that the
testimony should not have been admitted because it was irrelevant pursuant to Rules 401,
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402, and 403, and because it was improper character evidence pursuant to Rule 404(b). The
State avers that Eubanks opened the door to the testimony and the circuit court did not err
by allowing it.
As previously noted, the circuit court is afforded wide discretion in evidentiary rulings,
a circuit court’s ruling is entitled to great weight specifically relating to the admission of
evidence under Rules 401, 403, and 404(b), and this court will not reverse the circuit court’s
ruling absent an abuse of discretion and a showing of prejudice. See Cluck v. State, supra.
First, we do not reach Eubanks’s argument on Rule 404(b) presented here because he
did not object to this testimony based on 404(b) before the circuit court. This court has
repeatedly held that arguments not raised below will not be addressed for the first time on
appeal. See Frye v. State, 2009 Ark. 110, 313 S.W.3d 10. Parties cannot change the grounds
for an objection on appeal, but are bound by the scope and nature of their objections as
presented at trial. See id. Eubanks only objected to the relevancy and unfair prejudice of this
testimony pursuant to Rules 401, 402, and 403. Therefore, that is the only argument we
address here.
One defense theory that Eubanks attempted to establish at trial was that S.T.’s
allegation was false and was the result of some sort of conspiracy between Carrie’s mother,
Linda St. Mary, Eubanks’s ex-wife, Debbie, and a few of their mutual friends. Therefore,
during Carrie’s direct examination, Eubanks’s counsel elicited testimony to establish that
Carrie’s mother, Linda St. Mary, and Eubanks’s ex-wife, Debbie Eubanks, knew one another
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and did not like Eubanks. Carrie was asked “Your mother wasn’t very fond of Bill Eubanks?”
Carrie responded “No, not at all.” Prior to that question, Carrie was asked about what
happened one time when Eubanks showed up at her mother’s house when she was staying
there. She responded that “[Linda St. Mary] called the law and the law came and was involved
and it was a big scene.”
On cross-examination, Carrie confirmed her testimony that her mother, Linda St.
Mary, was not fond of Eubanks. The State, attempting to establish why that might be the case,
then elicited testimony that Linda St. Mary might not like Eubanks because she knew he hit
Carrie. Clearly, the defense opened the door to this testimony by questioning Carrie about
her mother’s feelings for Eubanks. The State simply elicited testimony to establish that Linda
St. Mary might have had a specific reason to dislike Eubanks. Therefore, we cannot hold that
the testimony was irrelevant. Furthermore, Eubanks has failed to demonstrate that he was
prejudiced by the evidence because he opened the door to this testimony in the first place.
See Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000); Willis v. State, 334 Ark. 412, 977
S.W.2d 890 (1998).
For all these reasons, we affirm Eubanks’s conviction and sentence. Pursuant to
Arkansas Supreme Court Rule 4-3(h), the record has been examined for all objections,
motions, and requests made by either party that were decided adversely to the appellant, and
no prejudicial error has been found.
Affirmed.
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John Wesley Hall, Jr., for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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