Cite as 2026 Ark. App. 260 ARKANSAS COURT OF APPEALS DIVISION III No. CR-25-597
KRISTOPHER LEE VICKROY Opinion Delivered April 29, 2026
APPELLANT APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT V. [NO. 71CR-23-110]
STATE OF ARKANSAS HONORABLE H.G. FOSTER, JUDGE APPELLEE AFFIRMED
CASEY R. TUCKER, Judge
A Van Buren County Circuit Court jury convicted appellant Kristopher Vickroy of
rape. On appeal, he asserts that the circuit court erred in admitting the testimony of a
nonvictim child witness (MV2) under the pedophile exception to Arkansas Rule of Evidence
404(b). In a subpoint, Vickroy argues that the admission of the nonvictim child witness’s
testimony violated Arkansas Rule of Evidence 403 due to unfair prejudice. We affirm.
I. Factual Background
On September 14, 2023, the State charged Vickroy with rape pursuant Arkansas
Code Annotated section 5-14-103 (Supp. 2023), alleging that he engaged in sexual
intercourse or deviate sexual activity with another person who was under the age of fourteen
by forcible compulsion. The State later amended the information to allege that Vickroy
violated Arkansas Code Annotated section 5-14-103(a)(3)(A) in that on September 4, 2023, he engaged in deviate sexual activity with a minor victim (MV1), a person less than fourteen
years of age, thereby committing the offense of rape. The case proceeded to trial on April
22, 2025.
The evidence at trial was that Vickroy was MV1’s older cousin (MV1’s mother is his
first cousin). Vickroy was approximately twenty-five years older than MV1. In September
2023, when MV1 was eleven years old, several family members, including Vickroy, went on
a family camping trip in Missouri. Vickroy drove MV1; his niece; and his niece’s friend,
MV2, to their respective homes after the trip. After dropping off the other girls, Vickroy
told MV1 that he needed to stop by his house in Fairfield Bay because he needed to use the
restroom. After Vickroy went inside and did not return, MV1 entered the house to get a
drink of water. While she was in the house, Vickroy called to her from his bedroom where
he was lying on the bed and asked her to come into the bedroom. MV1 stated she did not
want to, but Vickroy insisted, so she went into his bedroom. He then pulled her onto the
bed with him and proceeded to put his hand inside her pants and digitally penetrate her
vagina. MV1 testified that she was screaming at Vickroy to stop and get off of her. He
stopped when she kicked him, and MV1 ran out of the house and returned to his truck.
Once he was inside the truck, Vickroy offered MV1 money in exchange for her
silence. He told her that if she told anyone what he had done it would ruin his life. MV1
asked Vickroy to take her home. On their way from Fairfield Bay to the Vilonia area, they
drove past MV1’s grandmother’s house in Clinton. Vickroy refused MV1’s request to take
her to her grandmother. MV1 began texting her mother, asking for help. She told her that
2 Vickroy had touched her inappropriately and that she was scared. Her mother instructed
her to act normal and just get home. When she arrived home, MV1 went to her mother’s
bedroom, crawled into her mother’s bed, and cried.
After MV1 told her mother what had happened in more detail, MV1’s mother
contacted Vickroy through Facebook Messenger. He denied that he had done anything to
MV1, claiming he had accidentally touched her breast while they were playing. MV1’s
mother took her to the emergency room, where she was referred to Arkansas Children’s
Hospital. At Arkansas Children’s Hospital, MV1 was examined by a sexual assault nurse
examiner who also gathered the evidence for the rape kit. Upon testing, the DNA tests
revealed the presence of male DNA, but there was not enough DNA to identify a specific
individual.
Following this incident, MV1 confided in her mother that this was not the first time
Vickroy had touched her inappropriately. When she and Vickroy were watching a movie
together one night, he began tickling her, which he often did, and then he digitally
penetrated her vagina, asking her if it tickled. MV1 did not report this incident to anyone
because she was scared.
Over Vickroy’s objection, the circuit court allowed the State to introduce the
testimony of two witnesses under the pedophile exception to Arkansas Rule of Evidence
404(b). The first witness, who was an adult at the time of trial, testified that she knew Vickroy
when she was young because he was friends with her older brother and his friends. Her
brother had told Vickroy to stay away from her because she was young—she was twelve or
3 thirteen years old at the time. In spite of the warning, Vickroy went to the skating rink where
the witness was with friends, drove the young witness to a different location, and had sexual
intercourse with her.
MV2 testified that she knew Vickroy because she was good friends with his niece.
MV2 had spent the night at her friend’s grandfather’s house, where Vickroy lived, a couple
of times. On one such occasion, MV2 and her friend got into Vickroy’s bed when he was
not at home. When Vickroy came home, he got into bed with them. Vickroy started tickling
the girls, then he grabbed MV2’s wrist and pulled her hand toward “his private area,” which
made her uncomfortable. He did this more than once, though she told him to stop. Later
that night, while play-fighting over the remote control, Vickroy touched the underneath side
of MV2’s thigh in a way that made her feel uncomfortable. MV2 was eleven years old when
these acts occurred.
The jury returned a verdict finding Vickroy guilty of rape. It fixed his sentence at a
term of forty years in the Arkansas Division of Correction. The court sentenced Vickroy
accordingly, and Vickroy timely appealed.
II. Admissibility of MV2’s Testimony
A. The Pedophile Exception
Vickroy argues that the circuit court erred in allowing MV2’s testimony under the
pedophile exception to Rule 404 because the conduct she described was not sufficiently
similar to the conduct with which Vickroy is charged. We disagree.
Generally, evidence of a defendant’s prior bad acts is not admissible to show he or
4 she acted in conformity therewith. Ark. R. Evid. 404(b). However, such evidence may be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. Id. Arkansas recognizes a
separate “pedophile exception” to the general rule of inadmissibility of a defendant’s bad
acts to prove his guilt. Hortenberry v. State, 2017 Ark. 261, 526 S.W.3d 840. This court has
explained:
Additionally, the pedophile exception allows the State to introduce evidence of a defendant’s similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with the person or class of persons with whom the defendant has an intimate relationship. Hortenberry v. State, 2017 Ark. 261, 526 S.W.3d 840. The rationale for this exception is that this evidence helps to prove the depraved sexual instinct of the accused. Id.
Lemon v. State, 2026 Ark. App. 30, at 4, 729 S.W.3d 184, 187. The court in Lemon went on
to explain the necessary factors for this exception to apply: “(1) a sufficient degree of
similarity between the evidence to be introduced and the charged sexual conduct and (2)
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Cite as 2026 Ark. App. 260 ARKANSAS COURT OF APPEALS DIVISION III No. CR-25-597
KRISTOPHER LEE VICKROY Opinion Delivered April 29, 2026
APPELLANT APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT V. [NO. 71CR-23-110]
STATE OF ARKANSAS HONORABLE H.G. FOSTER, JUDGE APPELLEE AFFIRMED
CASEY R. TUCKER, Judge
A Van Buren County Circuit Court jury convicted appellant Kristopher Vickroy of
rape. On appeal, he asserts that the circuit court erred in admitting the testimony of a
nonvictim child witness (MV2) under the pedophile exception to Arkansas Rule of Evidence
404(b). In a subpoint, Vickroy argues that the admission of the nonvictim child witness’s
testimony violated Arkansas Rule of Evidence 403 due to unfair prejudice. We affirm.
I. Factual Background
On September 14, 2023, the State charged Vickroy with rape pursuant Arkansas
Code Annotated section 5-14-103 (Supp. 2023), alleging that he engaged in sexual
intercourse or deviate sexual activity with another person who was under the age of fourteen
by forcible compulsion. The State later amended the information to allege that Vickroy
violated Arkansas Code Annotated section 5-14-103(a)(3)(A) in that on September 4, 2023, he engaged in deviate sexual activity with a minor victim (MV1), a person less than fourteen
years of age, thereby committing the offense of rape. The case proceeded to trial on April
22, 2025.
The evidence at trial was that Vickroy was MV1’s older cousin (MV1’s mother is his
first cousin). Vickroy was approximately twenty-five years older than MV1. In September
2023, when MV1 was eleven years old, several family members, including Vickroy, went on
a family camping trip in Missouri. Vickroy drove MV1; his niece; and his niece’s friend,
MV2, to their respective homes after the trip. After dropping off the other girls, Vickroy
told MV1 that he needed to stop by his house in Fairfield Bay because he needed to use the
restroom. After Vickroy went inside and did not return, MV1 entered the house to get a
drink of water. While she was in the house, Vickroy called to her from his bedroom where
he was lying on the bed and asked her to come into the bedroom. MV1 stated she did not
want to, but Vickroy insisted, so she went into his bedroom. He then pulled her onto the
bed with him and proceeded to put his hand inside her pants and digitally penetrate her
vagina. MV1 testified that she was screaming at Vickroy to stop and get off of her. He
stopped when she kicked him, and MV1 ran out of the house and returned to his truck.
Once he was inside the truck, Vickroy offered MV1 money in exchange for her
silence. He told her that if she told anyone what he had done it would ruin his life. MV1
asked Vickroy to take her home. On their way from Fairfield Bay to the Vilonia area, they
drove past MV1’s grandmother’s house in Clinton. Vickroy refused MV1’s request to take
her to her grandmother. MV1 began texting her mother, asking for help. She told her that
2 Vickroy had touched her inappropriately and that she was scared. Her mother instructed
her to act normal and just get home. When she arrived home, MV1 went to her mother’s
bedroom, crawled into her mother’s bed, and cried.
After MV1 told her mother what had happened in more detail, MV1’s mother
contacted Vickroy through Facebook Messenger. He denied that he had done anything to
MV1, claiming he had accidentally touched her breast while they were playing. MV1’s
mother took her to the emergency room, where she was referred to Arkansas Children’s
Hospital. At Arkansas Children’s Hospital, MV1 was examined by a sexual assault nurse
examiner who also gathered the evidence for the rape kit. Upon testing, the DNA tests
revealed the presence of male DNA, but there was not enough DNA to identify a specific
individual.
Following this incident, MV1 confided in her mother that this was not the first time
Vickroy had touched her inappropriately. When she and Vickroy were watching a movie
together one night, he began tickling her, which he often did, and then he digitally
penetrated her vagina, asking her if it tickled. MV1 did not report this incident to anyone
because she was scared.
Over Vickroy’s objection, the circuit court allowed the State to introduce the
testimony of two witnesses under the pedophile exception to Arkansas Rule of Evidence
404(b). The first witness, who was an adult at the time of trial, testified that she knew Vickroy
when she was young because he was friends with her older brother and his friends. Her
brother had told Vickroy to stay away from her because she was young—she was twelve or
3 thirteen years old at the time. In spite of the warning, Vickroy went to the skating rink where
the witness was with friends, drove the young witness to a different location, and had sexual
intercourse with her.
MV2 testified that she knew Vickroy because she was good friends with his niece.
MV2 had spent the night at her friend’s grandfather’s house, where Vickroy lived, a couple
of times. On one such occasion, MV2 and her friend got into Vickroy’s bed when he was
not at home. When Vickroy came home, he got into bed with them. Vickroy started tickling
the girls, then he grabbed MV2’s wrist and pulled her hand toward “his private area,” which
made her uncomfortable. He did this more than once, though she told him to stop. Later
that night, while play-fighting over the remote control, Vickroy touched the underneath side
of MV2’s thigh in a way that made her feel uncomfortable. MV2 was eleven years old when
these acts occurred.
The jury returned a verdict finding Vickroy guilty of rape. It fixed his sentence at a
term of forty years in the Arkansas Division of Correction. The court sentenced Vickroy
accordingly, and Vickroy timely appealed.
II. Admissibility of MV2’s Testimony
A. The Pedophile Exception
Vickroy argues that the circuit court erred in allowing MV2’s testimony under the
pedophile exception to Rule 404 because the conduct she described was not sufficiently
similar to the conduct with which Vickroy is charged. We disagree.
Generally, evidence of a defendant’s prior bad acts is not admissible to show he or
4 she acted in conformity therewith. Ark. R. Evid. 404(b). However, such evidence may be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. Id. Arkansas recognizes a
separate “pedophile exception” to the general rule of inadmissibility of a defendant’s bad
acts to prove his guilt. Hortenberry v. State, 2017 Ark. 261, 526 S.W.3d 840. This court has
explained:
Additionally, the pedophile exception allows the State to introduce evidence of a defendant’s similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with the person or class of persons with whom the defendant has an intimate relationship. Hortenberry v. State, 2017 Ark. 261, 526 S.W.3d 840. The rationale for this exception is that this evidence helps to prove the depraved sexual instinct of the accused. Id.
Lemon v. State, 2026 Ark. App. 30, at 4, 729 S.W.3d 184, 187. The court in Lemon went on
to explain the necessary factors for this exception to apply: “(1) a sufficient degree of
similarity between the evidence to be introduced and the charged sexual conduct and (2)
evidence of an “intimate relationship” between the defendant and the victim of the prior
act.” Id. at 4–5, 729 S.W.3d at 187. A third requirement is noted in Holland v. State, 2015
Ark. 341, 471 S.W.3d 179, in which the supreme court observed that evidence admitted
under Rule 404(b) must not be too separated by time, making the evidence unduly remote.
The evidence of Vickroy’s conduct with MV2 was similar to his sexual conduct with
MV1. Both victims were eleven-year-old girls. MV1 testified that Vickroy would begin by
tickling her, then use that as cover for his sexual misconduct, including both the time of the
offense for which he was charged and the first time he digitally penetrated her vagina and
5 asked whether it tickled. MV2 testified that Vickroy began tickling her and, under the guise
of playful tickling, repeatedly tried to move her hand toward his penis. There was a sufficient
degree of similarity between Vickroy’s actions with MV2 and MV1 to meet the similarity
requirement of the pedophile exception.
Vickroy argues that the circuit court should not have admitted MV2’s testimony
because Vickroy’s conduct as described by her was, “at most, ambiguous horseplay, not a
sexual act.” We disagree. We acknowledge, as asserted by Vickroy, that tickling alone is not
necessarily sexual conduct. However, MV2’s testimony was clear that Vickroy repeatedly tried
to pull her hand toward his penis. MV2 repeatedly told him to stop and pulled her hand
away. The fact that MV2’s resistance prevented Vickroy from succeeding in his mission did
not transform his conduct from being sexual in nature into mere “horseplay.”
As to the required intimate relationship, the supreme court has explained that it is
not necessary that the defendant be related to the witness or live in the same household.
Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998). In Hernandez the court noted that
intimate relationships have been found when the witness was visiting the accused for a week
and when the accused was a babysitter of the witness. Id. The court looked to Black’s Law
Dictionary (6th ed. 1990) for guidance as to what constitutes an intimate relationship, noting,
“‘Intimate’ is defined as ‘close in friendship or acquaintance, familiar, near, confidential.’”
Id. at 309, 962 S.W.2d at 760. The court in Hernandez found a sufficiently intimate
relationship between the witness and the accused because the witness knew the accused’s
family and was allowed to spend the night in the home, and when the sexual misconduct
6 occurred, the witness was spending the night in the home. This is consistent with the case
at bar in which the witness knew Vickroy and his family and was spending the night at his
father’s home where Vickroy was living at the time.
The incident about which MV2 testified happened within a year of the incident
involving MV1, which more than meets the requirement that the two incidents not be
remote in time. See Hernandez, supra. The testimony of MV2 was admissible under the
pedophile exception.
B. Admissibility Under Arkansas Rule of Evidence 403
Having determined that MV2’s testimony met the requirements to be admissible
under the pedophile exception to Rule 404, we now turn to the question of whether it was
admissible under Arkansas Rule of Evidence 403. Rule 403 provides:
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. Even if evidence falls under the pedophile exception to Rule 404, it may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice. Jones v. State, 2025 Ark. App. 446, 721 S.W. 3d 802. The conduct described by
MV2 was probative of Vickroy’s deviate sexual impulse to sexually assault young females. See
Jones, supra. Moreover, evidence that Vickroy had raped MV1 was already before the jury in
the form of forensic and testimonial evidence. And an adult had testified that Vickroy had
engaged in sexual intercourse with her when she was only twelve or thirteen years old. Thus,
7 there was little danger of unfair prejudice resulting from admitting MV2’s testimony under
the pedophile exception. See Meacham v. State, 2025 Ark. 27, 707 S.W.3d 473. MV2’s
testimony was probative of Vickroy’s proclivity for engaging in sexual conduct with
prepubescent females, and that probative value was not outweighed by the danger of unfair
prejudice. See id.
The circuit court exercises broad discretion in making evidentiary determinations.
Jones, supra. We will not reverse the circuit court’s ruling absent an abuse of that discretion
and resulting prejudice. Id. The circuit court did not abuse its discretion in finding that
MV2’s testimony was admissible.
Affirmed.
BARRETT and MURPHY, JJ., agree.
Mothershed Law, PLLC, by: La’Donnia M. Mothershed for appellant.
Tim Griffin, Att’y Gen., by: Dalton Cook, Ass’t Att’y Gen., for appellee.