Cite as 2024 Ark. App. 451 ARKANSAS COURT OF APPEALS DIVISION II NO. CR-22-746
ROLANDO CUEVAS-FLORES Opinion Delivered September 25, 2024
APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. 04CR-21-1484]
STATE OF ARKANSAS HONORABLE BRADLEY LEWIS KARREN, APPELLEE JUDGE
AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Rolando Cuevas-Flores was convicted by a Benton County Circuit Court jury of the
offenses of rape and sexual assault in the second degree. He was sentenced to an aggregate
of thirty years’ imprisonment for the two offenses. Cuevas-Flores makes three arguments on
appeal: (1) the circuit court erred in granting the State’s motion in limine to preclude him
from eliciting testimony from a witness regarding her sexual history with a third party; (2)
the circuit court erred in holding that the pedophile exception to Arkansas Rule of Evidence
404(b) applied and allowing Palona Uscanga to testify that Cuevas-Flores sexually assaulted
her; and (3) the jury verdicts were not supported by substantial evidence. We affirm.
I. Facts
Palona Uscanga is the mother of the four-year-old victim, MV. Cuevas-Flores is
Uscanga’s former stepfather, and MV refers to him as Grandpa. Prior to trial, the circuit court held an evidentiary hearing on the State’s motion in limine requesting that Uscanga
be allowed to testify that she was sexually abused by Cuevas-Flores beginning when she was
five or six years old and continuing until she was fifteen. At the hearing, Uscanga recalled a
specific incident when she was five or six; she was in the living room watching television
while her mother was in the shower; and Cuevas-Flores came in, grabbed her by her ankles,
covered her mouth, and began licking her between her legs on her private parts. Uscanga
testified that, after that, Cuevas-Flores began coming into her bedroom at night, trying to
put his hands all over her body and trying to kiss her body. Cuevas-Flores opposed the
motion. The circuit court granted the State’s motion in limine, holding that pursuant to
the “pedophile exception” to Arkansas Rule of Evidence 404(b), the State would be allowed
to introduce evidence that Cuevas-Flores sexually abused Uscanga, concluding that the acts
were similar, the victims were both prepubescent females, both had an intimate relationship
with Cuevas-Flores, it was a close proximity of time, and the evidence was independently
relevant.
On the first day of trial, after the jury was selected, Uscanga’s grandmother, Maria de
la Cruz Garza, who lived with Uscanga and her two children, testified that in April 2021,
Uscanga took MV to Cuevas-Flores’s house, where her then fifteen-year-old half sister, VC,
lived with Cuevas-Flores (VC’s father) and her brother, Hector Cuevas, so that VC could
babysit MV while Uscanga went to the gym. De la Cruz Garza said that, when she returned
home that night, MV did not report anything to her, but the next day MV told her three
times that Grandpa “see cola” (MV’s word for her genitals) and opened her legs; when de la
2 Cruz Garza called Uscanga and told her what MV said, Uscanga came home and questioned
MV.
On the second day of trial, as a preliminary matter, the State requested that the
defense be prohibited from eliciting testimony from any witness about being sexually
assaulted by another person. Specifically, the State asked that VC, Uscanga’s half sister and
a witness for the State, not be allowed to testify that she was sexually assaulted by a third
party because it was not relevant, and it was prohibited by the rape-shield statute. Defense
counsel countered that Cuevas-Flores is VC’s father and that when VC had previously lived
with her biological mother several years earlier, her mother’s boyfriend sexually assaulted
VC. When Cuevas-Flores learned about the assault, he rearranged his work schedule, and
VC left her mother’s house and moved in with him. Defense counsel argued that VC’s
sexual abuse molded the manner in which she took care of her niece, MV, while she was
babysitting her. VC had told detectives that she had a policy of not allowing MV in bedrooms
alone because of her own prior experience of being a victim of sexual abuse. The circuit
court asked defense counsel why he could not simply inquire about VC’s policy of not
allowing MV in bedrooms by herself without broaching the prior sexual assault. Defense
counsel countered that the jury needed to hear the basis for VC’s deeply held belief behind
her policy so that the jury would not conclude that VC was making it up to protect her
father. The State argued that such evidence was protected by the rape-shield statute, and VC
could not waive that protection. The court ruled that VC could testify that she had a strict
rule that children she babysat did not go into a bedroom alone for their own safety but not
3 that she had been sexually assaulted by her mother’s boyfriend. When defense counsel
questioned if the ruling meant that any victim of any crime could not testify about prior
sexual abuse, the circuit court ruled that the statute protected all sexual-abuse victims from
having to testify about their sexual abuse.
The trial resumed, and Uscanga testified that on April 26, 2021, VC still resided with
Cuevas-Flores. Uscanga stated that she took MV to Cuevas-Flores’s house for VC to babysit
her. VC’s brothers, Luis and Hector, were at the house, but not Cuevas-Flores. Uscanga
testified that when she returned to pick up MV about one and a half hours later, MV was in
the living room by herself, and Cuevas-Flores was home. Uscanga stated that Luis and
Hector were in their rooms when she arrived to pick up MV. Uscanga took MV home, and
they went to bed.
The next day, Uscanga received a phone call from her grandmother while at work.
She went home, and MV told her what had happened with Cuevas-Flores. Uscanga
eventually took MV to a Children’s Advocacy Center (“CAC”), where a forensic interviewer
met with MV, and MV underwent a physical exam. Uscanga testified that on the night of
the incident, she was worried when she saw that Cuevas-Flores was home when she returned
to pick MV up, explaining to the jury that when she was five, Cuevas-Flores had grabbed her
by her ankles, lifted her up, and began licking her private area, and for several years after
that, he had continued to come into her bedroom and had attempted to place his hands all
over her body and kiss her body. Uscanga explained that “cola” was the Spanish word for
vagina, and that was what MV called her vagina.
4 Rick Yager, a detective with the Rogers Police Department, testified that he had
investigated MV’s hotline report. After watching the CAC interview and speaking to
Uscanga, Yager was able to develop Cuevas-Flores as a suspect. Yager testified that he
triangulated the data from Cuevas-Flores’s phone and he could place Cuevas-Flores in the
general area of his house from 6:29 to 7:39 p.m..
Juan Alvarez testified that Cuevas-Flores is his stepfather. Juan said he spent the day
at Cuevas-Flores’s house on April 26 playing video games, working on his car, and watching
television. Hector, Luis, VC, and MV were also at the house. Juan said that MV was in the
living room playing games on her tablet and that Cuevas-Flores came home right after lunch
and began packing for a trip. Juan admitted that he did not see MV 100 percent of the time
he was there, but he never saw MV go into Cuevas-Flores’s bedroom.
Luis Cuevas testified that in April 2021, he lived with Cuevas-Flores; his brother,
Hector; and his sister, VC, and on the day in question, his dad was in and out because he
was packing for a trip. He admitted that he was not with his dad or MV 100 percent of the
time while MV was at the house, but he denied seeing Cuevas-Flores sexually assault MV.
At trial, VC testified that she was sixteen years old, and she currently lived with her
mother. In April 2021, she had lived with her dad and her two brothers. VC recalled
babysitting MV in April 2021. She said that during some of the time MV was there, she was
in her room working on a school project, but her father was not home while she was working
on her school project. VC stated that her brothers were in the living room with MV while
she was working on her project, but she would periodically check on MV during that time.
5 She said that MV was still at her house when her father got home that night around 7:00 or
8:00 p.m. VC denied that MV was alone in the living room when Uscanga arrived to pick
her up. She said that by the time her father got home, she was generally in the vicinity of
MV, and she denied that MV had gone into any of the bedrooms.
Amber O’Malley, a forensic nurse examiner, testified that she performed an
anogenital exam on MV’s genitals, and while MV’s hymen did have an anatomical variation,
it was a congenital variance, not a finding definitive of sexual abuse. Her blood work and
urine samples were negative for sexually transmitted diseases, and there were no physical
findings. However, O’Malley testified that no physical findings was normal for a majority of
children examined for sexual contact and abuse; it did not mean that something did not
happen. When asked by the State what a child means when he or she says “inside my body,”
O’Malley stated that children do not always have a good understanding of what “in” means.
She explained that penetration by an object past the labia majora was not necessarily
penetration of the hymen into the vagina, which would cause the child to feel a significant
amount of pain, but that penetration past the labia majora was still “in” even if the object
did not pass through the hymen to the vagina.
Edith Wineland, the bilingual forensic interviewer who performed the recorded
interview with MV, testified that nonleading, open-ended questions are used in interviews
as well as black and white diagrams of unclothed males and females where children can name
the body parts and anatomically correct dolls the children can use to help explain what has
6 happened to them. She said that it was easier for some children to show what happened
rather than use their words.
MV, who was five years old at the time of trial, testified. When asked if anyone had
given her touches that were not okay, MV said no. At that time, the State moved to introduce
the CAC video interview as a prior inconsistent statement; defense counsel requested that a
hearing be held on that issue, and the circuit court agreed, stating that it needed to determine
whether the video possessed a reasonable guarantee of trustworthiness and whether MV was
competent. After reviewing the recorded CAC video outside the presence of the jury, the
circuit court found that MV’s testimony that there were no bad touches was inconsistent
with the information in the CAC video. Defense counsel argued that the CAC video was
not trustworthy because MV had testified that there were no bad touches on the stand, which
was contrary to what was contained in the video; he further pointed out that there were
absolutely no findings of sexual abuse. The State countered that there had been a year
between the video interview and MV’s testimony on the stand, and it was possible that she
simply did not remember. The circuit court determined that there were sufficient guarantees
of trustworthiness in the videotaped CAC interview and granted the State’s motion to allow
the interview to be played for the jury.
The CAC video was played for the jury; while the jurors were also given a transcript
of the interview, the circuit court instructed them that the transcript was not evidence, only
the video. In the videotaped interview, MV told Wineland that Grandpa touched her “cola”
with his hand and his tongue, and he put his penis in her “cola,” “butt,” and mouth.
7 Additionally, the video showed MVpoint to her vaginal area and demonstrate what Grandpa
had done when she said that Grandpa touched her cola with his hand and tongue; she
identified the vagina and penis on the male and female diagrams when shown; and she
simulated sexual intercourse with the anatomically correct dolls when asked to show the
interviewer what Grandpa had done.
Defense counsel did not cross-examine MV after the CAC video was played for the
jury, and the State rested at that time. Cuevas-Flores moved for directed verdicts on both
counts, arguing that for rape, the State had failed to prove there was penetration; and as to
second-degree sexual assault, MV’s testimony was inconsistent and that she had said
someone else had touched her cola, but she did not say who that was. He argued that there
was no evidence to support the required element of penile-vaginal penetration. In response,
the State argued that MV stated in the interview that Grandpa put it in the cola and in her
mouth; when asked to identify on the diagrams what “it” was, she pointed to the male penis.
The State further pointed out that Nurse O’Malley testified that when a child says “in,” it
did not mean in the vaginal canal affecting the hymen; “in” could be inside the labia majora,
which is all that is required by the statute. Furthermore, it was clear that MV said Grandpa
touched her cola with his hand and with his tongue. After taking some time to review notes,
the circuit court denied Cuevas-Flores’s motion for directed verdict.
Cuevas-Flores testified in his own defense. He said that he came into the house on
April 21 and was in a hurry because he had only an hour to pack for a trip, and he had to
pick up his rental car. He said that he was at the house with MV for thirty minutes to an
8 hour but that he was never alone with her; he said that Uscanga arrived while he was in the
process of leaving. He denied that he had engaged in the sexual acts of which he was accused
by MV and Uscanga. After his testimony, Cuevas-Flores renewed his motions for directed
verdict on both allegations, and the circuit court denied the motions. The jury returned
guilty verdicts on both counts.
II. Sufficiency of the Evidence
Although it is his third point of appeal, double-jeopardy concerns require that we
address Cuevas-Flores’s sufficiency argument before considering any other evidentiary
argument. Preservation of an appellant’s right to freedom from double jeopardy requires a
review of the sufficiency of the evidence prior to a review of trial errors. Lester v. State, 2024
Ark. App. 206, 687 S.W.3d 344. When reviewing the sufficiency of the evidence, this court
considers all the evidence, whether admitted properly or erroneously; even if the circuit court
abused its discretion in admitting certain evidence, we will nevertheless consider it in
determining whether the verdict is supported by substantial evidence. Burciaga v. State, 2024
Ark. App. 341, 690 S.W.3d 456.
Cuevas-Flores argues that the forensic interview with four-year-old MV was
“inconsistent, at times incoherent, and confusing.” He summarizes MV’s statements during
the interview, stating that she said “at various times that Grandpa (Rolando) touched her
cola with his hand, that he hit her, that his pants were off, that he was lying down on the
bed, that he put something in her nose, her mouth, her butt, and her cola, that at some
9 point he was ‘gussin’ and it was gross, and that he put his tongue in her cola.” Cuevas-Flores
also points out that the forensic examination revealed no physical evidence that MV had
been raped or sexually abused.
A motion for directed verdict at a jury trial is considered a challenge to the sufficiency
of the evidence. McGaugh v. State, 2023 Ark. App. 457, 678 S.W.3d 410. In reviewing a
sufficiency challenge, we view the evidence in the light most favorable to the State and
consider only the evidence that supports the verdict. Id. A conviction will be affirmed if
substantial evidence exists to support it; substantial evidence is evidence of sufficient force
and character that it will, with reasonable certainty, compel a conclusion one way or the
other without resorting to speculation or conjecture. Id. The credibility of witnesses and
the weight of the evidence are matters for the finder of fact to decide, and this court may not
reweigh the evidence or substitute our own credibility determinations for those of the finder
of fact. Baker v. State, 2022 Ark. App. 391, 654 S.W.3d 63.
A person commits rape “if he or she engages in sexual intercourse or deviate sexual
activity with another person who is less than fourteen years of age.” Ark. Code Ann. § 5-14-
103(a)(3)(A) (Supp. 2019). “Deviate sexual activity” is defined as “any act of sexual
gratification involving the penetration, however slight, of the anus or mouth of a person by
the penis of another person; or the penetration, however slight, of the labia majora or anus
of a person by any body member or foreign instrument manipulated by another person.”
Ark. Code Ann. § 5-14-101(1)(A) & (B) (Supp. 2019). A person commits sexual assault in
the second degree “if the person, being eighteen years of age or older, engages in sexual
10 contact with another person who is less than fourteen years of age.” Ark. Code Ann. § 5-14-
125(a)(3) (Supp. 2019). “Sexual contact” is “any act of sexual gratification involving the
touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or
the breast of a female.” Ark. Code Ann. § 5-14-101(11).
In sex-crime prosecutions, a victim’s testimony need not be corroborated to support
conviction. Morrison v. State, 2024 Ark. App. 300. Nor is scientific evidence required.
Hartley v. State, 2022 Ark. 197, 654 S.W.3d 802. A victim’s testimony alone is substantial
evidence that will support a conviction if the testimony adequately specifies the acts
prohibited by law, even when the victim is a child. Id. Witness credibility is an issue for the
jury, and the appellate court will not second-guess the determinations of the trier of fact.
Shelton v. State, 2017 Ark. App. 195, 517 S.W.3d 461.
The evidence presented at trial substantiates that MV was raped and sexually assaulted
by Cuevas-Flores. In the video of her forensic interview, which was played for the jury, MV
told the interviewer that Grandpa touched her “cola” with his hand and his tongue, and he
put his penis in her “cola,” “butt,” and mouth. Additionally, the video shows MV pointing
to her vaginal area when she said that Grandpa touched her cola with his hand and tongue,
she identified the vagina and penis on the male and female diagrams when shown, and she
simulated sexual intercourse with the dolls when asked to show the interviewer what
Grandpa did. The credibility of MV’s testimony was an issue for the jury to determine. We
hold that there was sufficient evidence to support the jury’s verdicts, and we affirm the
convictions.
11 III. Pedophile Exception to Rule 404(b)
Cuevas-Flores also argues that the circuit court erred in allowing Uscanga, his former
stepdaughter and MV’s mother, to testify about an alleged prior sexual assault on her by
Cuevas-Flores under the “pedophile exception” to Arkansas Rule of Evidence 404(b). A
circuit court is given wide discretion in making evidentiary rulings; those decisions will not
be reversed absent an abuse of discretion. Greeno v. State, 2023 Ark. App. 500, 678 S.W.3d
617. Rule 404(b) of the Arkansas Rules of Evidence provides, “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.” Evidence of other crimes will be admitted if it has independent
relevance, and the relevance is not substantially outweighed by the danger of unfair
prejudice; 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 the evidence. Greeno, supra. Furthermore, when the crime charged concerns the
sexual assault of a minor, the “pedophile exception” to Rule 404(b) “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.” McDaniel v. State, 2018 Ark. App. 151,
at 5–7, 544 S.W.3d 115, 118–19. For the pedophile exception to apply, there must be a
sufficient degree of similarity between the evidence to be introduced and the charged sexual
12 conduct. Id. The evidence admitted pursuant to Rule 404(b) cannot be too remote in time;
a reasonableness standard is employed to determine whether a crime remains relevant
instead of a specified amount of time. Baumann v. State, 2018 Ark. App. 564, 566 S.W.3d
494. The reasonableness requirement is automatically met if the requirement of similarity
is satisfied. Id.
The offenses against Uscanga and MV were substantially similar. Both accused
Cuevas-Flores of performing oral sex on them; Uscanga was five or six years old when her
sexual abuse occurred, while MV was four; and Cuevas-Flores had an intimate relationship
with both of them. We hold that there is a sufficient degree of similarity between the
evidence to be introduced and the charged sexual conduct; therefore, the circuit court did
not abuse its discretion in allowing this testimony.
IV. Rape-Shield Statute
Cuevas-Flores also asserts that the circuit court erred in finding that our rape-shield
statute applies to any witness who has been a victim of any sex crime, which prevented him
from questioning his daughter, VC, regarding the fact that she had previously been sexually
assaulted by her mother’s boyfriend. He wanted to elicit this testimony to show that, because
of this previous sexual assault, VC had a policy that children she babysat were not allowed
to go into bedrooms alone. Cuevas-Flores’s attorney argued that the rape-shield statute was
applicable only to the victim in the case being prosecuted, but the circuit court disagreed,
finding that such testimony was not admissible under the rape-shield statute, and VC could
not waive the protection of the rape-shield statute. However, the circuit court determined
13 that VC could testify that she had such a policy without being asked about her prior sexual
history. Cuevas-Flores’s attorney declined the circuit court’s offer, stating that he needed to
be able to ask VC why she had such a policy so that the jury would not think she was making
it up to protect her father. Cuevas-Flores argues on appeal, as he did below, that the rape-
shield statute is applicable only to the complaining victim/witness in the case being currently
prosecuted, not to any witness who is not the complainant who had been sexually abused or
assaulted who wanted to testify that he or she had been sexually abused or assaulted.
We need not address whether the rape-shield statute is applicable to any victim of a
sexual offense or only to the victim of the crime being prosecuted because Cuevas-Flores
cannot demonstrate prejudice from the circuit court’s refusal to allow VC to testify that, due
to the fact that she had been sexually abused by one of her mother’s boyfriends, she had a
policy that children she babysat were not allowed alone in bedrooms. This court may affirm
a conviction and deem an evidentiary error harmless if the evidence of guilt is overwhelming
and the error is slight. Washington v. State, 2024 Ark. App. 134, 686 S.W.3d 61. To
determine if error is slight, we look to see if the defendant was prejudiced. Monday v. State,
2019 Ark. App. 290, 577 S.W.3d 460. Prejudice is not presumed on appeal, and an
assessment of prejudice must take into account that the uncorroborated testimony of a minor
victim alone is substantial evidence to sustain a conviction for sex offenses. Washington,
supra. Furthermore, evidence that is merely cumulative or repetitious of other evidence
admitted without objection cannot be claimed to be prejudicial. Burns v. State, 2024 Ark.
App. 329, 690 S.W.3d 133.
14 The video of MV’s forensic interview by itself, in which she demonstrates where and
how Cuevas-Flores touched her, as discussed above, constitutes substantial evidence to
sustain Cuevas-Flores’s convictions. See Mondy, supra. Additionally, Uscanga was allowed to
testify under the pedophile exception that Cuevas-Flores had sexually abused her in a similar
manner when she was approximately MV’s age. Kelley v. State, 2009 Ark. 389, 327 S.W.3d
373 (testimony of another victim of defendant, whom the victim considered a “stepfather
figure,” raped at the same age as victim in present case was allowed under the pedophile
exception to Rule 404(b)). Furthermore, if the circuit court’s refusal to allow VC’s testimony
that her prior sexual abuse motivated her policy of not allowing children to be in bedrooms
alone while she was caring for them was erroneous, the error was slight. The circuit court
ruled that Cuevas-Flores would be allowed to elicit testimony from VC that she had a policy
that children she babysat were not allowed in bedrooms by themselves; however, he declined
to do so. Furthermore, VC testified that she was not with MV all the time that MV was in
her care. It cannot be said that VC enforced her own policy or even knew if it was followed
on this day. Because Cuevas-Flores failed to establish prejudice, we hold that any evidentiary
error was harmless, and we affirm.
Affirmed.
WOOD and HIXSON, JJ., agree.
Putman Law Office, by: William B. Putman, for appellant.
Tim Griffin, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.