Brewer v. State

6 S.W.3d 124, 68 Ark. App. 216, 1999 Ark. App. LEXIS 886
Court of Appeals of Arkansas·Decided December 8, 1999·No. CA CR 98-935·Published·Cited by 12 cases

Opinion

John B. Robbins, Chief Judge.

Appellant Cephas Brewer appeals his convictions of two counts of rape, for which he received two concurrent twenty-year prison terms. He does not argue that the evidence was insufficient to convict him for either of these rapes committed against two of his stepgranddaughters. His points on appeal are that the trial court erred in the following ways: (1) admitting the testimony of each girl as to the other’s count of rape, in violation of Ark. R. Evid. 404(b), (2) refusing to sever the counts of rape into separate trials, and (3) failing to read a stipulated jury instruction to the jury. We affirm.

A summary of the victims’ testimonies is necessary. Appellant was married to the victims’ grandmother. One of the victims, V.R., was twenty-two, married, and pregnant with her second child at the time of trial. She testified that she had experienced numerous episodes of sexual abuse that began when she was approximately ten or eleven years of age and continued until she was sixteen years old. Overlapping during that time, the other victim, A.J., was present and actually lived with her grandmother and her step grandfather for a few months. A.J., age twelve at the time of trial, was ten years younger than her older cousin.

V.R. testified that she often went to appellant’s home after school, and appellant began to approach her in a sexual manner. This began when she was in the fifth grade, she recalled, which would have been in the mid-1980s. At first, V.R. was touched on her breasts and vagina. Appellant then asked her to give him oral sex, this occurring in the barn after he had asked her to help tend to the chickens. She complied, following appellant’s instructions on how to do it. Thereafter, every time she went over to her grandmother’s and appellant’s house, he had her perform oral sex on him. Appellant had intercourse with VR. for the first time when she was thirteen, at his home when they were lying down together to take a nap. Appellant told VR. that he loved her and that he was preparing her for dating and being married. Appellant had intercourse with VR. more than twenty times between the time that V.R. was thirteen and sixteen. She also testified that appellant showed her a picture of appellant’s stepdaughter (V.R.’s aunt) performing oral sex on him in the same manner as appellant had instructed V.R. to do it. Once V.R. was old enough to get a job and a car, she rarely spent any time over at her grandmother’s and appellant’s house. V.R. stated that she had kept this secret all these years and did not wish to be testifying about it. VR.’s concern was that she did not want this to happen to her young cousin, A.J.

A. J. testified as well. The sexual abuse perpetrated on A.J. was testified to have occurred between her ages of five and ten, approximately falling in the years 1989 until January 1996. Because A.J.’s parents had separated during these years, A.J., her mother, and her brother lived with appellant for a few months. During the other pertinent time, she went to appellant’s house after school, during summer, or anytime that her mother needed a sitter. She often went on camping trips and other outings with her stepgrandfather.

A.J. testified to much of the same behavior that VR. did. A.J. was fondled and asked to perform oral sex on appellant, beginning when she was in kindergarten. A.J. gave a detailed account about what appellant required her to do during these episodes. A.J. also testified that appellant brought a jar of Vaseline that he called “slickum” on camping trips; that appellant would make sure that A.J.’s brother was asleep in another tent; that appellant would put “slickum” on her vagina; and that he would try to enter her vagina but could not. This was not an isolated event. Appellant taught A.J. how to “french” kiss him. Appellant also showed A.J. pornographic materials to show her how to position herself during sex with him. He told A.J. that he loved her and that she was “lucky” to have this happening to her.

The victims’ episodes of sexual abuse coincided on one camping trip. V.R. testified while the three of them were laying down to sleep together in the back of appellant’s truck, appellant put himself between the girls, had sex with VR., and then had A.J. perform oral sex on him. Afterward, they all slept together in the bed of his truck.

404(b) Evidence

Appellant argues that it was error to allow each girl to testify about their experiences because it was improper for the jury to use this testimony as to the other’s count of rape. Rule 404(b) states:

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.

An exception has been carved out, commonly known as the “pedophile exception,” which provides:

When the alleged crime is child abuse or incest, we have approved allowing evidence of similar acts with the same or other children in the same 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.

Taylor v. State, 334 Ark. 339, 349, 974 S.W.2d 454, 460 (1998); Mosleyv. State, 325 Ark. 469, 929 S.W.2d 693 (1996); see also Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998); Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994). It is also admissible to show the familiarity of the parties and antecedent conduct toward one another and to corroborate the testimony of the victim. Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987); Hyatt v. State, 63 Ark. App. 114, 975 S.W.2d 433 (1998). Such evidence helps to show the depraved instinct of the accused. Williams v. State, 103 Ark. 70, 146 S.W. 471 (1912). The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Munson, supra. We find no abuse of discretion in this case.

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Brewer v. State, 6 S.W.3d 124, 68 Ark. App. 216, 1999 Ark. App. LEXIS 886 (Ark. Ct. App. 1999).

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