Baumann v. State

• Decision Date: 28 November 2018
• Docket Number: No. CR-18-431,CR-18-431
• Parties: Anthony BAUMANN, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

2018 Ark. App. 564

566 S.W.3d 494

Anthony BAUMANN, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-431

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: November 28, 2018

Wilkinson Law Firm, by: Shane Wilkinson, for appellant.

Leslie Rutledge, Att'y. Gen., by: Adam Jackson, Ass't. Att'y. Gen., for appellee.

ROBERT J. GLADWIN, Judge

Appellant Anthony Baumann appeals his September 29, 2017 conviction by a Benton County jury on a charge of second-degree sexual assault of E.S., for which he was sentenced to twenty years' incarceration in the Arkansas Department of Correction (ADC). Baumann argues that (1) the circuit court erred in denying his motion to exclude the testimony of his daughter, Tanya Bridges, regarding allegations of sexual assault that presumably occurred twenty-eight years prior to the trial pursuant to Arkansas Rule of Evidence 404(b) (2017); (2) the circuit court erred in refusing to exclude the same testimony pursuant to Arkansas Rule of Evidence 403 (2017); and (3) the State's questioning of Detective Brian Hanna regarding other sexual-assault accusations against Baumann warranted a mistrial. We affirm.

I. Facts

Baumann was charged with one count of rape and one count of sexual assault in the second degree against a minor, E.S. Prior to trial, the circuit court held a hearing on Baumann's pretrial motion to exclude Bridges's Rule 404(b) testimony. At the time of the hearing, Bridges was forty years old. She testified that she is Baumann's biological daughter and grew up with Baumann and that the sexual abuse started in "probably the fourth or fifth grade." Bridges testified that when she was in the sixth grade, Baumann came into her bedroom and touched her on the arm and shoulder. That type of event continued with his touches progressing until eventually he was touching her vagina. She explained that his visits to her room occurred at night while other people were in the house, but she had a bedroom to herself. As she got older, Baumann moved from touching her vagina to forcing Bridges to touch his penis and to forcing her to engage in oral and vaginal intercourse. She testified that once, after vaginal intercourse, Baumann told her how beautiful she was. The circuit court found Bridges credible and stated that she would be allowed to testify. The circuit court ruled that the testimony would be admissible under the pedophile exception pursuant to Ark. R. Evid. 404(b) and that it did not violate Ark. R. Evid. 403. Baumann renewed his objection to Bridges's testimony at trial, and the circuit court again denied his objection.

Baumann is the biological grandfather of V.B. V.B. and E.S. are half-sisters and share the same mother. E.S., who was thirteen years old at the time of the trial, testified that her mother, Erika Shirley, was previously in a relationship with Baumann's son, Adam. E.S. first started spending time around Baumann when she was nine or ten years old. During that time, she would occasionally stay the night with Baumann and his wife. She testified that Baumann would come into her room at night as she was getting ready for bed or after she was already in bed. E.S. explained that she would be in the bedroom by herself. Baumann would sit on her bed and tell her to take off her shorts and underwear or lift up her nightgown. He would touch her on her breasts and her vagina underneath her clothes. E.S. also testified that Baumann would lick her vagina. When he did this, her clothes would be around her ankles, and his hands would be on her knees, spreading her legs apart. E.S. stated that Baumann also made her touch his penis while in the living room when no one else was home. She testified that he told her not to tell anyone or both of them would get into trouble.

Bridges testified at trial that when she was thirteen or fourteen,¹ Baumann would come into her room, caress her on the arm, and touch her vagina, which eventually led to digital penetration. Bridges also testified that Baumann had vaginal intercourse with her when she was fourteen or fifteen, that Baumann made her masturbate him, and that he made her perform oral sex on him. She explained that one time after intercourse, Baumann told her she was beautiful. Bridges testified that the abuse stopped when she was sixteen and she had her first boyfriend; Baumann solicited her one last time to engage in sexual activity with him and then she could do whatever she wanted to with her boyfriend.

At trial, the State directed Detective Hanna to read into evidence a portion of the Child Safety Center (CSC) interview of E.S., which included the allegation that Baumann had been accused of touching "his other granddaughters." The circuit court sustained Baumann's objection to this testimony but did not grant a mistrial sua sponte in the absence of a request from Baumann.

The circuit court granted Baumann's directed-verdict motion only on the rape count based on a lack of evidence of penetration of E.S. and denied Baumann's directed-verdict motion as to the remaining count of sexual assault in the second degree. The jury convicted Baumann of sexual assault in the second degree, and the circuit court sentenced him to a term of imprisonment of twenty years in the ADC and imposed a fine of $15,000 pursuant to a sentencing order filed on October 17, 2017. Baumann filed a timely notice of appeal, and this appeal followed.

II. Rule 404(b)

Challenges to an evidentiary ruling 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 Rule 404(b), "[e]vidence 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." 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 the 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, 2012 WL 4471112, 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 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. First, courts "require that there be a sufficient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant." Id. Physical similarities between the alleged victim and the 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. Second, 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, 2011 WL 1495994.²

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.

A. Similarity of Allegations

The pedophile exception has been used in cases in which there was substantial similarity between the prior allegations and the newly charged conduct. See Woods v. State , 2013 Ark. App. 739, at 8, 431 S.W.3d 343, 348 (holding that a prior conviction for molesting the defendant's minor stepdaughter when she was isolated, and threatening her to not report the abuse, was admissible when he was later charged with the same conduct with another stepdaughter); see also Eubanks , 2009 Ark....