Watson v. State

2015 Ark. App. 721, 478 S.W.3d 286, 2015 Ark. App. LEXIS 812
Court of Appeals of Arkansas·Decided December 16, 2015·No. CR-14-742·Published·Cited by 6 cases

Opinion

RITA W. GRUBER, Judge

|,Appellant, Israel Todd Watson, was convicted by a jury of ten counts of rape for engaging in deviate sexual activity with a ten-year-old girl, AS. 1 All of appellant’s points on appeal concern the testimony of a woman who claimed that appellant had raped her when she was a child. The court admitted the testimony over appellant’s objection, finding that it fit within the pedophile exception to Arkansas Rule of Evidence 404(b). Appellant also objected to a statement in the testimony that he claimed went to “the ultimate question” in the case. We affirm appellant’s convictions and hold that the trial court did not abuse its discretion in admitting the witness’s testimony.

The victim in this case, AS, testified that appellant was a friend of her mother and stepfather and that they sang in a praise band together. Appellant volunteered to babysit for 12her after school when she was in fifth grade. AS said that appellant was a “nice guy” and that she had trusted him. She called appellant “Uncle Todd.” She said that he began touching her on top of her clothes and then progressed to having her perform oral sex on him. He also penetrated her vaginally with his penis and his fingers. She testified that most of the crimes took place at her house and that he had stopped when her mom had come home from work. AS also testified that he drove her to a friend’s apartment on one occasion, where he retrieved condoms from a drawer and then penetrated her vaginally. He also attempted to penetrate her anally while they were at appellant’s house, but AS said that he stopped when appellant’s wife came home. The abuse stopped after AS told a friend at school, who informed their teacher. The teacher asked AS about it, and AS told her what had been happening.

The trial court held a pre-trial- hearing to determine whether to allow the State to introduce the testimony of a twenty-four-year-old woman, Whitley Currence, who alleged that she had been raped by appellant when she was fifteen. Ms. Currence testified that' she was born on April 3, 1989. 2 She testified that'she and appellant worked for her mother at a nursing home in Ashdown that was owned' by her mother’s parents. She said that appellant had always been friendly and nice to her and that she had trusted him. One day her mother sent her and appellant to retrieve an item from a rent house that was used for storage. She stated that-she did not have a driver’s license and that appellant had driven. When they got to the house, he asked her. whether she would tell anyone if he ever touched her. She was unsure what he meant, but told him “no.” He subsequently pushed her into the corner of a ladoset, pulled her pants down, and put his penis into her vaginá. She said that she had repeatedly asked him to stop. Before they left the house, appellant told her, “If- you ever f|! ***** tell anybody ... I’ll kill you, bitch.” She did not tell anyone until about six months later, when she told her father, who filed a report with the police on March 17, 2005.

The court allowed the testimony, and Ms. Currence testified similarly at trial to her pre-trial hearing. She also testified that she did not know AS or her parents and that she had not had any contact with appellant since the incident. When asked why she was testifying, she said because a detective had contacted her father and because she had three daughters and “to know that he did that to a little girl I could never sit back.” Appellant objected to this statement, arguing that it was a determination on the final or ultimate question regarding whether he did or did not commit- the offenses in this case. The trial court overruled the objection, reasoning that the witness was merely giving an explanation regarding why she was testifying. • • :

I. ¿(¼(⅞) Testimony

For his first point on appeal, appellant contends that the trial court abused its discretion by allowing Ms. Currence’s testimony in violation of Rule 404(b) of the Arkansas Rules of Evidence. ’Rule 404(b) 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) (2015). The general rule excludes evidence of a defendant’s prior bad acts, but the second; sentence provides an exemplary, but not exhaustive, list of exceptions to 14that rule. Hamm v. State, 365 Ark. 647, 652, 232 S.W.3d 463, 468 (2006) (citing White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986)).

In case law, our supreme' court has 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 to show a proclivity for a specific act with a person or class of persons with whom the defendant has had an intimate relationship. Craigg v. State, 2012 Ark. 387, at ¶ 7, 424 S.W.3d 264, 268. The rationale for this exception is that such evidence helps to prove -the depraved sexual instinct of the accused. Id. There are two requirements for this.exception to apply: there must be a sufficient degree of similarity between the evidence to be introduced and the charged sexual conduct, and there must be an “intimate relationship” between the defendant and the victim of the prior act. Allen, 374 Ark. at 317, 287 S.W.3d at 585.

We will not reverse a trial court’s decision whether to admit or reject evidence under Rule 404(b) absent a manifest abuse of discretion. Craigg, 2012 Ark. 387, at ¶ 8, 424 S.W.3d at 268. Abuse of discretion is a high threshold that does not simply require error in the trial judge’s decision, but requires that the trial judge acted improvidently, thoughtlessly, ■ or without due consideration. Id.

In challenging the court’s admission of the testimony in this case, appellant first contends that it was unclear whether Ms. Currence was a minor at the time of the alleged |fievent because she gave conflicting testimony regarding whether she was fifteen or sixteen. He also argues that it was not clear that appellant was in a position of authority over Ms. Currence because it was her family who owned the nursing home. Finally, ■■'appellant claims that the only similarity between the victim in this cáse and Ms. Currence was that both alleged that he had raped them.

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Watson v. State, 2015 Ark. App. 721, 478 S.W.3d 286, 2015 Ark. App. LEXIS 812 (Ark. Ct. App. 2015).

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