Cite as 2020 Ark. App. 50 ARKANSAS COURT OF APPEALS Digitally signed by Elizabeth Perry DIVISION III Date: 2022.08.10 12:56:53 No. CR-19-433 -05'00' Adobe Acrobat version: Opinion Delivered January 29, 2020 2022.001.20169
TRACY LEE BRONSON APPEAL FROM THE GARLAND APPELLANT COUNTY CIRCUIT COURT [NO. 26CR-17-23] V. HONORABLE MARCIA R. STATE OF ARKANSAS HEARNSBERGER, JUDGE APPELLEE AFFIRMED
BRANDON J. HARRISON, Judge
Tracy Lee Bronson appeals his conviction for rape, arguing that the circuit court
erred in admitting evidence pursuant to Ark. R. Evid. 404(b) (2019). We affirm the circuit
court.
In January 2017, Bronson was charged with rape. 1 The State alleged that he had
engaged in sexual intercourse or deviate sexual activity with an eight-year-old female. In
May 2017, the State moved to admit evidence pursuant to Ark. R. Evid. 404(b), noting
that Bronson had committed a similar offense against a fifteen-year-old female and that this
evidence was admissible under the pedophile exception to show Bronson’s motive, intent,
and plan.
1 The information was later amended to charge Bronson as a habitual offender. 1 The circuit court convened a hearing on the motion in September 2017. Seventeen-
year-old SH testified that in December 2015, she was hanging out with a friend at her
cousin’s house, which was next door to where SH lived with her father. Gloria Pace is her
cousin, and SH knew Bronson through Pace. Bronson was also there, and according to
SH, he gave her alcohol and “put his hands on [her].” She said that every time she walked
by, he touched her breasts or her behind over her clothes. On cross-examination, she said
that she had known Bronson “for a while” and that he had never attempted to coerce her
into touching him or taking her clothes off. On redirect, SH said that he did try to get her
to kiss her friend, who was thirteen years old at the time.
On 30 October 2017, the circuit court granted the State’s motion and made the
following findings:
1. The evidence and testimony adduced at the hearing of this matter was similar to the allegations in the current case.
2. Both cases involved minor children over whom the Defendant was in a position of trust or authority pursuant to the living arrangements.
3. Said evidence and testimony is admissible to show intent and lack of mistake pursuant to Rule 404(b) of the Arkansas Rules of Evidence.
4. Said evidence and testimony is also admissible pursuant to the Pedophile Exception to Rule 404(b).
After obtaining new counsel, Bronson objected to the State’s use of this Rule 404(b)
evidence, arguing that it was not relevant, but counsel acknowledged at a pretrial hearing
that “the Court had ruled on that before I got in the case and I’ll have to abide by the
Court’s ruling.”
2 The circuit court conducted a jury trial on 15 August 2018. Because Bronson does
not challenge the sufficiency of the evidence supporting his conviction, a detailed recitation
of the evidence presented at trial is not necessary. Ten-year-old SL testified that she used
to live with her mother, Gloria Pace; that Bronson had been her mother’s boyfriend; and
that he had lived with them. She testified that while they lived together, Bronson had “put
his front private part in behind me.” She also said that Bronson had touched her “front
private part” with his hand. And she recalled another time when Bronson had “pulled the
cover off [her] and pulled [her] clothes down and put his front private part in [her].” She
also stated that he had licked her chest.
Dr. Heather Borchert testified that she had performed a physical exam of SL in
October 2016 and that “[w]ith the history that we obtained from [SL] and from her mom
and the evidence we found during her physical exam, we suspected sexual abuse.” Dr.
Borchert opined that SL had suffered an “acute injury.” Dr. Karen Farst, an expert in child-
abuse pediatrics, confirmed that SL had suffered a “penetrating injury to the genital area that
was consistent with the history of sexual abuse so sexual abuse would be the diagnosis.”
The State also called SH as a witness; prior to her testimony, the defense “renew[ed]”
its objection, which the court “note[d].” SH explained that her cousin is Gloria Pace and
that Bronson was Pace’s boyfriend. SH said that in December 2015, Pace and Bronson
were living next door to her, and she described the night that Bronson had offered her
alcohol and touched her butt and her breasts multiple times.
3 The defense also renewed its objection at the close of the State’s case, the close of
the defense’s case, and after the State’s rebuttal. The jury found Bronson guilty of rape, and
he was sentenced to seventy years’ imprisonment.
Rule 404(b) of the Arkansas Rules of Evidence is entitled “Other Crimes, Wrongs,
or Acts” and 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) (2019). The first sentence provides the general rule excluding
evidence of a defendant’s prior bad acts, while the second sentence provides an exemplary,
but not exhaustive, list of exceptions to that rule. Hamm v. State, 365 Ark. 647, 232 S.W.3d
463 (2006). These exceptions inure because such evidence is independently relevant and
does not merely establish that the defendant is a bad person who does bad things. Id.
Additionally, our cases have also recognized a separate “pedophile exception” to the
general rule that evidence of a defendant’s prior bad acts cannot be used to prove that the
defendant committed the charged crime. Allen v. State, 374 Ark. 309, 316, 287 S.W.3d
579, 584 (2008). The pedophile exception 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. Id. The rationale for this exception is that such evidence helps to
prove the depraved sexual instinct of the accused. Id. For the pedophile exception to apply,
there must be a sufficient degree of similarity between the evidence to be introduced and
4 the charged sexual conduct. Id. We also require that there be an “intimate relationship”
between the defendant and the victim of the prior act. Id. at 317, 287 S.W.3d at 585.
The admission or rejection of evidence under Rule 404(b) is within the sound
discretion of the circuit court and will not be reversed absent a manifest abuse of discretion.
Hendrix v. State, 2011 Ark. 122. Abuse of discretion is a high threshold that does not simply
require error in the circuit court’s decision, but requires that the circuit court acted
improvidently, thoughtlessly, or without due consideration. Dixon v. State, 2011 Ark. 450,
385 S.W.3d 164.
Bronson argues that the circuit court erred in allowing SH’s testimony because there
are “major differences” between SL and SH. SL’s testimony recounted penetration, while
SH only testified to Bronson’s touching her on the outside of her clothes. Also, SL was eight
years old at the time of the alleged incident and lived with Bronson, while SH was fifteen
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Cite as 2020 Ark. App. 50 ARKANSAS COURT OF APPEALS Digitally signed by Elizabeth Perry DIVISION III Date: 2022.08.10 12:56:53 No. CR-19-433 -05'00' Adobe Acrobat version: Opinion Delivered January 29, 2020 2022.001.20169
TRACY LEE BRONSON APPEAL FROM THE GARLAND APPELLANT COUNTY CIRCUIT COURT [NO. 26CR-17-23] V. HONORABLE MARCIA R. STATE OF ARKANSAS HEARNSBERGER, JUDGE APPELLEE AFFIRMED
BRANDON J. HARRISON, Judge
Tracy Lee Bronson appeals his conviction for rape, arguing that the circuit court
erred in admitting evidence pursuant to Ark. R. Evid. 404(b) (2019). We affirm the circuit
court.
In January 2017, Bronson was charged with rape. 1 The State alleged that he had
engaged in sexual intercourse or deviate sexual activity with an eight-year-old female. In
May 2017, the State moved to admit evidence pursuant to Ark. R. Evid. 404(b), noting
that Bronson had committed a similar offense against a fifteen-year-old female and that this
evidence was admissible under the pedophile exception to show Bronson’s motive, intent,
and plan.
1 The information was later amended to charge Bronson as a habitual offender. 1 The circuit court convened a hearing on the motion in September 2017. Seventeen-
year-old SH testified that in December 2015, she was hanging out with a friend at her
cousin’s house, which was next door to where SH lived with her father. Gloria Pace is her
cousin, and SH knew Bronson through Pace. Bronson was also there, and according to
SH, he gave her alcohol and “put his hands on [her].” She said that every time she walked
by, he touched her breasts or her behind over her clothes. On cross-examination, she said
that she had known Bronson “for a while” and that he had never attempted to coerce her
into touching him or taking her clothes off. On redirect, SH said that he did try to get her
to kiss her friend, who was thirteen years old at the time.
On 30 October 2017, the circuit court granted the State’s motion and made the
following findings:
1. The evidence and testimony adduced at the hearing of this matter was similar to the allegations in the current case.
2. Both cases involved minor children over whom the Defendant was in a position of trust or authority pursuant to the living arrangements.
3. Said evidence and testimony is admissible to show intent and lack of mistake pursuant to Rule 404(b) of the Arkansas Rules of Evidence.
4. Said evidence and testimony is also admissible pursuant to the Pedophile Exception to Rule 404(b).
After obtaining new counsel, Bronson objected to the State’s use of this Rule 404(b)
evidence, arguing that it was not relevant, but counsel acknowledged at a pretrial hearing
that “the Court had ruled on that before I got in the case and I’ll have to abide by the
Court’s ruling.”
2 The circuit court conducted a jury trial on 15 August 2018. Because Bronson does
not challenge the sufficiency of the evidence supporting his conviction, a detailed recitation
of the evidence presented at trial is not necessary. Ten-year-old SL testified that she used
to live with her mother, Gloria Pace; that Bronson had been her mother’s boyfriend; and
that he had lived with them. She testified that while they lived together, Bronson had “put
his front private part in behind me.” She also said that Bronson had touched her “front
private part” with his hand. And she recalled another time when Bronson had “pulled the
cover off [her] and pulled [her] clothes down and put his front private part in [her].” She
also stated that he had licked her chest.
Dr. Heather Borchert testified that she had performed a physical exam of SL in
October 2016 and that “[w]ith the history that we obtained from [SL] and from her mom
and the evidence we found during her physical exam, we suspected sexual abuse.” Dr.
Borchert opined that SL had suffered an “acute injury.” Dr. Karen Farst, an expert in child-
abuse pediatrics, confirmed that SL had suffered a “penetrating injury to the genital area that
was consistent with the history of sexual abuse so sexual abuse would be the diagnosis.”
The State also called SH as a witness; prior to her testimony, the defense “renew[ed]”
its objection, which the court “note[d].” SH explained that her cousin is Gloria Pace and
that Bronson was Pace’s boyfriend. SH said that in December 2015, Pace and Bronson
were living next door to her, and she described the night that Bronson had offered her
alcohol and touched her butt and her breasts multiple times.
3 The defense also renewed its objection at the close of the State’s case, the close of
the defense’s case, and after the State’s rebuttal. The jury found Bronson guilty of rape, and
he was sentenced to seventy years’ imprisonment.
Rule 404(b) of the Arkansas Rules of Evidence is entitled “Other Crimes, Wrongs,
or Acts” and 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) (2019). The first sentence provides the general rule excluding
evidence of a defendant’s prior bad acts, while the second sentence provides an exemplary,
but not exhaustive, list of exceptions to that rule. Hamm v. State, 365 Ark. 647, 232 S.W.3d
463 (2006). These exceptions inure because such evidence is independently relevant and
does not merely establish that the defendant is a bad person who does bad things. Id.
Additionally, our cases have also recognized a separate “pedophile exception” to the
general rule that evidence of a defendant’s prior bad acts cannot be used to prove that the
defendant committed the charged crime. Allen v. State, 374 Ark. 309, 316, 287 S.W.3d
579, 584 (2008). The pedophile exception 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. Id. The rationale for this exception is that such evidence helps to
prove the depraved sexual instinct of the accused. Id. For the pedophile exception to apply,
there must be a sufficient degree of similarity between the evidence to be introduced and
4 the charged sexual conduct. Id. We also require that there be an “intimate relationship”
between the defendant and the victim of the prior act. Id. at 317, 287 S.W.3d at 585.
The admission or rejection of evidence under Rule 404(b) is within the sound
discretion of the circuit court and will not be reversed absent a manifest abuse of discretion.
Hendrix v. State, 2011 Ark. 122. Abuse of discretion is a high threshold that does not simply
require error in the circuit court’s decision, but requires that the circuit court acted
improvidently, thoughtlessly, or without due consideration. Dixon v. State, 2011 Ark. 450,
385 S.W.3d 164.
Bronson argues that the circuit court erred in allowing SH’s testimony because there
are “major differences” between SL and SH. SL’s testimony recounted penetration, while
SH only testified to Bronson’s touching her on the outside of her clothes. Also, SL was eight
years old at the time of the alleged incident and lived with Bronson, while SH was fifteen
years old and lived next door to Bronson. He asserts that the prejudicial effect of SH’s
testimony far outweighed its probative value.
In response, the State contends that the acts committed against SH and SL were
similar and “demonstrated [Bronson’s] depraved sexual instinct and [were] relevant to
demonstrate his intent to target adolescen[t]-female victims within his access.” The State
notes that while Bronson had not previously committed all the same sexual acts against SH
that he later committed against SL, Arkansas law does not require that the sexual acts be
identical for the evidence to be permissible under the pedophile exception. The State cites
several Arkansas cases to support its position. See, e.g., Craigg v. State, 2012 Ark. 387, 424
S.W.3d 264 (evidence of defendant’s prior touching a four-year-old female’s vagina was
5 admissible and sufficiently similar conduct to his alleged rape of an eleven-year-old male);
Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005) (evidence of a defendant’s prior
touching of his fourteen-year-old daughter’s buttocks and vaginal area was admissible at his
trial for the alleged rape of an eleven-year-old female); Hernandez v. State¸ 331 Ark. 301,
962 S.W.2d 756 (1998) (defendant’s prior sexual touching of a minor female was sufficiently
similar to his alleged digital penetration and sexual intercourse with another minor female).
We hold that SH’s testimony was relevant to show Bronson’s proclivity to sexually
abuse minor female victims, and the case law, particularly Hernandez, supports that
conclusion. As to Bronson’s Rule 403 argument, he failed to obtain a ruling from the circuit
court, so it is not preserved for our review. Holland v. State¸ 2015 Ark. 341, 471 S.W.3d
179.
Affirmed.
GLADWIN and WHITEAKER, JJ., agree.
Steven R. Davis, for appellant.
Leslie Rutledge, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.