Cite as 2025 Ark. App. 374 ARKANSAS COURT OF APPEALS DIVISION I NO. CR-24-683
Opinion Delivered June 4, 2025 JESSE SUBLETT APPELLANT APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT V. [NO. 23CR-21-968]
STATE OF ARKANSAS HONORABLE TROY B. BRASWELL, APPELLEE JR., JUDGE
AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Jesse Sublett appeals his conviction from the Faulkner County Circuit Court.
Following a two-day jury trial held on April 3–4, 2024, Sublett was found guilty of second-
degree sexual assault pursuant to Arkansas Code Annotated section 5-14-110(a)(1) (Supp.
2021). He was sentenced to twenty years’ imprisonment in the Arkansas Division of
Correction. On appeal, Sublett challenges (1) the sufficiency of the evidence supporting his
conviction; (2) the admission of a GroupMe conversation he had with the minor victim; and
(3) the admission of a photograph. We affirm.
In the spring of 2021, Sublett was teaching construction courses at Conway High
School where the minor victim (“MV”) was a student. At that time, MV was enrolled in the
Junior Reserve Officer Training Corps (JROTC) taught by Sublett’s best friend, James Stiefvater. During that spring, a JROTC project required MV to work in Sublett’s classroom
outside normal school hours.
In June 2021, MV’s mother confronted Stiefvater after learning he had given MV
$200 and several other gifts. MV’s mother reported these gifts to Conway High School in
September 2021, and the Conway Police Department and Arkansas State Police Crimes
Against Children Division began an investigation into Stiefvater. During that investigation,
MV disclosed to law enforcement officials that she had exchanged messages with Sublett
using GroupMe, an encrypted messaging application that he asked MV to download. MV
specifically pointed the investigators to a conversation that took place on July 23, 2021, in
which Sublett asked her to meet him at the school, but she refused. Sublett then requested
that MV share “naughty pictures” of herself in her bra and panties.
MV also disclosed to investigators that during the spring of 2021, Sublett pushed her
up against a metal shelf in his classroom storage closet on multiple occasions. The first few
times, he was just “in her face,” but the last few times, he forcibly kissed her. MV disclosed
that during one of these occurrences, Sublett pulled her leggings back to look down the back
of her pants, and on another occasion, he touched her breasts and asked to see her bra. MV
told investigators that during the final assault in April 2021, as she was leaving Sublett’s
classroom, he called her back to the closet. There, he placed one hand on her hip and the
other on her back. Sublett then pulled MV’s buttocks into his penis, which she could feel,
three times. He told MV that is what love handles are for. MV informed investigators that
she told Stiefvater about the assault as soon as it happened, but he did not report it.
2 On September 17, 2021, Conway Police Sergeant Brittani Little recorded an
interview with Sublett. Sublett denied having an active GroupMe account but admitted he
had one in the past. He also denied sending MV inappropriate messages, requesting
photographs from her, and having any physical contact with her.
An examination of data extracted from Sublett’s cell phone confirmed that GroupMe
was installed on his phone in July 2021. The extraction also confirmed that Sublett’s phone
used the GroupMe application on July 23, 2021, and that his phone contained the same
GroupMe profile picture used in the messages found on MV’s phone. Additionally, the
extraction revealed that, two minutes after asking MV for “naughty pictures,” a picture of an
erect penis was taken using Sublett’s phone.
On November 22, 2021, an arrest warrant was served on Sublett, and he was charged
via criminal information on March 10, 2022, with second-degree sexual assault.
On December 1, 2023, a pretrial hearing was held. At the hearing, the parties argued
several motions regarding the admission of the evidence extracted from Sublett’s cell phone.
Sublett argued that the GroupMe conversation and the picture of his penis were more
prejudicial than probative because the conversation took place three months after the alleged
assault, and the picture was never sent to anyone. Conversely, the State argued that the
picture was probative since Sublett had several conversations with MV that culminated in
physical contact, and the GroupMe conversation and picture showed Sublett’s sexual
gratification and intent as to MV. At the conclusion of the hearing, the circuit court stated
3 it would take the matter under advisement, noting the admissibility of the evidence would
greatly depend on the testimony of the witnesses.
On April 3, 2024, a two-day jury trial commenced. During the trial, the circuit court
admitted the GroupMe messages on MV’s phone as well as the picture of Sublett’s penis,
ruling that both pieces of evidence showed the totality of Sublett’s relationship with MV.
The court reasoned that the messages were admissible to show Sublett’s proclivity for
engaging in similar conduct with students like MV. The court also found that the messages
showed that Sublett sought more than just a teacher-student relationship with MV. The
circuit court further found that the probative value of the photograph outweighed its
prejudicial impact. The court reasoned that the photograph provided evidence of Sublett’s
intent and motive concerning his earlier conduct with MV.
Following the conclusion of all the evidence, the State presented its closing arguments
to the jury. The State’s closing began, “Ladies and gentlemen, this is a case about trust. This
is sending your child to someone whose job it is to teach them.” Sublett immediately
objected, arguing the State had “asked the jury to put themselves in the position” of the
victims. Sublett asked “for a mistrial or an instruction.” The circuit court denied the mistrial
motion but instructed the jury that the “closing arguments of the attorneys are not evidence.”
After a two-day trial, the jury found Sublett guilty of second-degree sexual assault. He
was sentenced to twenty years’ imprisonment in the Arkansas Division of Correction.
On appeal, Sublett argues that the circuit court erred by denying his motion for
directed verdict. Specifically, he contends the State failed to introduce sufficient evidence
4 to prove he committed second-degree sexual assault because MV’s testimony regarding his
alleged sex crime was “not credible nor supported by any corroborating evidence.” Although
he presents this as his last argument on appeal, we address Sublett’s challenge to the
sufficiency of the evidence first due to double-jeopardy considerations. See Bolen v. State,
2023 Ark. App. 373, at 20, 675 S.W.3d 145, 156.
A motion for directed verdict is treated as a challenge to the sufficiency of the
evidence. E.g., id. at 20, 675 S.W.3d at 156. On review, this court views the evidence in the
light most favorable to the State and considers only the evidence that supported the verdict.
Id. We will affirm a conviction if there is substantial evidence to support it; evidence—either
direct or circumstantial—is substantial if it compels a conclusion and passes beyond mere
speculation or conjecture. Milton v. State, 2023 Ark. App. 382, 675 S.W.3d 173. This
determination, along with the credibility of witnesses and the weight of the evidence
presented at trial, is left to the jury. Id. It “is the function of the jury, and not the reviewing
court, to evaluate the credibility of witnesses and to resolve any inconsistencies in the
evidence.” Bolen, 2023 Ark. App. 373, at 21, 675 S.W.3d at 156.
Notably, as in the present case, in sex-crime prosecutions, a victim’s testimony need
not be corroborated to support a conviction. Bahena v. State, 2023 Ark. App. 261, at 3, 667
S.W.3d 553, 555–56. We have consistently held that a victim’s testimony alone amounts to
substantial evidence that will support a conviction if the testimony adequately specifies the
acts prohibited by law. Langlois v. State, 2023 Ark. App. 263, at 8–9, 666 S.W.3d 884, 889.
5 And such testimony is substantial evidence of guilt, even when the victim is a child.”
McCauley v. State, 2023 Ark. 68, at 4, 663 S.W.3d 383, 386.
Sublett was convicted of second-degree sexual assault pursuant to Arkansas Code
Annotated section 5-14-125(a)(1) (Supp. 2021). Under subdivision (a)(1), a person commits
sexual assault in the second degree if the person engages in sexual contact with another
person by forcible compulsion. Sexual contact “means any act of sexual gratification
involving the touching, directly or through clothing, of the sex organs . . . of a female[.]” Ark.
Code Ann. § 5-14-101(11) (Supp. 2021).
In viewing the evidence in the light most favorable to the State, we hold that the
following evidence was sufficient to support Sublett’s second-degree sexual-assault
conviction. At trial, then sixteen-year-old MV testified that Sublett forcibly kissed her on
more than one occasion; pulled her pants down to see her underwear; touched her breasts;
and on the final occasion, asked her to come back to the storage closet as she was leaving his
classroom where he placed one hand on MV’s hip and the other on her back and pulled
MV’s buttocks into his penis—which she could feel—three times. MV’s testimony specifically
described and—standing alone—substantiated that Sublett engaged in prohibited sexual
touching of MV and, thus, committed second-degree sexual assault. See Bynum v. State, 2017
Ark. App. 41, at 8, 511 S.W.3d 860, 865. We affirm on this point.
Sublett next argues that the prosecuting attorney made improper comments during
closing argument in violation of the golden rule. A golden-rule argument is one that
implores the members of the jury to put themselves in the position of a party or victim.
6 Waller v. State, 2024 Ark. App. 113, 686 S.W.3d 15. The golden-rule argument is
impermissible because it tends to subvert the objectivity of the jury. King v. State, 317 Ark.
293, 877 S.W.2d 583 (1994). It is seen as an attempt to dissuade the jurors from their duty
to weigh the evidence and instead to view the case from the standpoint of a litigant or party.
Id. That is not what the State did here.
The relevant argument and resulting colloquy follow:
STATE: Ladies and gentlemen, this is a case about trust. This is sending your child to someone whose job it is to teach them.
DEFENSE COUNSEL: Objection Your Honor.
....
DEFENSE COUNSEL: I believe he just passed the – broken the golden rule and asked the jury to put themselves in the position.
STATE: No, I didn’t.
COURT: You did say “your.” It sounded like –
STATE: That’s not how I asked.
DEFENSE COUNSEL: I understand. I can’t undo that. It’s my responsibility to ask for a mistrial or an instruction. I understand.
COURT: Yeah. I’ll give an instruction but deny the motion for mistrial by using the word “your.”
The State did not suggest that jurors place themselves in the position of a victim as in
a “golden rule” argument. Moreover, the circuit court has broad discretion in controlling
closing arguments and is in a better position to decide the issue of prejudice because of its
firsthand observation. Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993). In the
7 absence of manifest or gross abuse of discretion, we will not reverse the action of the circuit
court in matters pertaining to its control and supervision of counsel’s arguments. Id. A
reversal of a judgment due to remarks made by counsel during closing arguments is rare and
requires that counsel make an appeal to the jurors’ passions and emotions. Mills v. State,
322 Ark. 647, 910 S.W.2d 682 (1995). In the event an improper statement has been made,
an admonition to the jury usually cures any prejudice unless the argument is so patently
inflammatory that justice could not be served by continuing the trial. King v. State, 317 Ark.
293, 877 S.W.2d 583 (1994). The State’s argument was not inflammatory, and the jury was
instructed by the court that closing arguments of the attorneys are not evidence. There was
no abuse of discretion by the circuit court in declining to declare a mistrial. We affirm.
Finally, Sublett argues that the circuit court abused its discretion in allowing
inadmissible evidence concerning the GroupMe conversation between him and MV and the
photograph of his erect penis. Challenges to evidentiary rulings are reviewed under the
abuse-of-discretion standard. Hortenberry v. State, 2017 Ark. 261, 526 S.W.3d 840. The
abuse-of-discretion standard is a high threshold that does not simply require error in the
circuit court’s decision but requires that the circuit court act improvidently, thoughtlessly,
or without due consideration. Id.; Holland v. State, 2015 Ark. 341, 471 S.W.3d 179.
Additionally, an evidentiary decision will not be reversed absent a showing of prejudice.
Hicks v. State, 2017 Ark. 262, 526 S.W.3d 831.
Pursuant to Arkansas Rule of Evidence 404(b), “[e]vidence of other crimes, wrongs,
or acts it not admissible to prove the character of a person in order to show that he acted in
8 conformity therewith.” Such evidence is permissible for other purposes, however, “such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” E.g., Duvall v. State, 2018 Ark. App. 155, at 5, 544 S.W.3d 106, 110.
“Under Ark. R. Evid. 404(b), evidence of other crimes will be admitted if it has independent
relevance, and its relevance is not substantially outweighed by the danger of unfair
prejudice.” Jones v. State, 349 Ark. 331, 339, 78 S.W.3d 104, 110 (2002). Evidence is
independently relevant if it tends to make the existence of any fact that is of consequence to
the determination of the action more or less probable than it would be without evidence.
Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006).
Arkansas appellate courts recognize a “pedophile exception” to Rule 404(b) “that
allows the State to introduce 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.” Duvall, 2018 Ark. App.
155, at 6, 544 S.W.3d at 110. The rationale for the exception is that such evidence helps to
prove the depraved sexual instinct of the accused. Jeffries v. State, 2014 Ark. 239, 434 S.W.3d
889. Further, it is admissible to show the familiarity of the parties, disposition, and
antecedent conduct toward one another and to corroborate the testimony of the victim, see
Fields v. State, 2012 Ark. 353, at 6, and to show motive, intent, or plan. See Holland, supra.
Also, “Rule 404(b) makes no distinction between substantiated and unsubstantiated
conduct, or between charged and uncharged conduct. This court has explicitly held that our
9 application of the pedophile exception does not require that the prior act be charged or
substantiated.” Holland, 2015 Ark. 341, at 8, 471 S.W.3d at 185.
While the State may introduce evidence of unsubstantiated prior allegations to show
an accused’s “proclivity to offend,” there are three essential restrictions on the pedophile
exception. See Baumann v. State, 2018 Ark. App. 564, 566 S.W.3d 494. First, it is necessary
“that there be an ‘intimate relationship’ between the perpetrator and the victim.” Holland,
2015 Ark. 341, at 7, 471 S.W.3d at 184. The relationship must be one “close in friendship
or acquaintance, familiar, near, or confidential.” Eubanks v. State, 2009 Ark. 170, at 4–5,
303 S.W.3d 450, 453. This standard is not strict; the act of babysitting has been found to
satisfy the “intimate relationship” criterion. See Morrison v. State, 2011 Ark. App. 290, at 4.
Second, courts require that there be a “sufficient degree of similarity between the evidence
to be introduced and the sexual conduct of the defendant. ” Id. at 3. Physical similarities
between the alleged victim and the Rule 404(b) witness such as age and gender are relevant
when there is not “identical” conduct toward each by the accused. See Stewart v. State, 2011
Ark. App. 658, at 7, 386 S.W.3d 583, 587. Third, evidence admitted pursuant to Rule
404(b) must not be too separated in time, making the evidence unduly remote. Holland, 2015
Ark. 341, at 8, 471 S.W.3d at 185. “[A] reasonableness standard is used to determine whether
a crime remains relevant rather than a specific time limit.” Id. at 9, 471 S.W.3d at 185.
Finally, even if evidence of prior allegations of child abuse meets the criteria for the
pedophile exception to Rule 404(b), it is still subject to potential exclusion under Rule 403
if the probative value of the evidence is substantially outweighed by the danger of unfair
10 prejudice. Holland, supra. Although 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 considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. Ark. R. Evid. 403.
Sublett argues that the circuit court improperly applied the pedophile exception in
its admission of the GroupMe conversation because there is “no similarity between the
alleged assault in April and asking for a picture in underwear three months later.” We
disagree.
First, Sublett was charged with the sexual assault of his student, MV. The
teacher/student relationship qualifies as an intimate relationship; thus, an intimate
relationship exists between the perpetrator and the victim in this case. Next, messaging MV
asking her for pictures in her underwear shows a proclivity for a depraved sexual instinct—
specifically, that Sublett had a deviant sexual interest in MV. This evidence of another wrong
is sufficiently similar to the sexual assault with which Sublett was charged. Finally, this
evidence is not unduly remote such that it requires exclusion. This court has held that the
pedophile exception to Rule 404(b) applies to acts that occurred eleven, fourteen, and even
twenty-eight years apart. See Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006); Holland,
2015 Ark. 341, 471 S.W.3d 179; Baumann, 2018 Ark. App. 564, 566 S.W.3d 499. The
alleged sexual assault of MV took place in April 2021, and the GroupMe conversation took
place three months later in July. Furthermore, the evidence’s probative value was not
outweighed by any unfair prejudice. Indeed, evidence that MV was sexually assaulted was
11 already before the jury by way of testimonial evidence. The probative value of the nature of
the relationship between MV and Sublett far outweighed the prejudicial nature of the
evidence, warranting its admission. For these reasons, we do not find that the circuit court
erred in finding that the pedophile exception to Rule 404(b) applied to the GroupMe
conversation.
Sublett additionally argues that the circuit court improperly applied the pedophile
exception to the photograph because it was never sent to MV and “had no bearing on the
alleged assault months before.” We disagree.
It has been established that an intimate relationship existed between Sublett and MV.
The photograph at issue in this appeal, while never sent to MV, was taken two minutes after
Sublett requested pictures of MV in her underwear. We hold that the photograph is
sufficiently similar to the sexual assault in which Sublett was charged because it shows he
received sexual gratification from his encounters with MV—whether through a messaging
application or in the supply closet of his classroom. We apply the same analysis as above
when it comes to the remoteness element of the pedophile exception. The photograph and
the GroupMe conversation occurred almost simultaneously; therefore, it cannot be unduly
remote such that it requires exclusion. The circuit court did not abuse its discretion in
applying the pedophile exception to Rule 404(b) to the photograph.
Turning to the balancing test required under Rule 403, we hold that the circuit court
did not err in finding that the photograph’s probative value was not outweighed by any unfair
prejudice. MV testified in front of the jury that she could feel Sublett’s erect penis while he
12 sexually assaulted her in his classroom. The probative value of the photograph—showing
Sublett’s sexual gratification from his encounters with MV—outweighed any prejudice to
Sublett under these facts.
Affirmed.
VIRDEN and MURPHY, JJ., agree.
Eugene Clifford, for appellant.
Tim Griffin, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.