Collins v. State

• Decision Date: 30 May 1984
• Docket Number: No. CACR,CACR
• Citation: 11 Ark.App. 282,669 S.W.2d 505
• Parties: Eddie Lee COLLINS, Appellant, v. STATE of Arkansas, Appellee. 83-145.
• Court: Arkansas Court of Appeals

Page 505

669 S.W.2d 505

11 Ark.App. 282

Eddie Lee COLLINS, Appellant, v. STATE of Arkansas, Appellee.

No. CACR 83-145.

Court of Appeals of Arkansas,

Division II.

May 30, 1984.

Jay P. Metzger by Claude S. Hawkins, Jr., Ashdown, for appellant.

Steve Clark, Atty. Gen., by Velda West Vanderbilt, Asst. Atty. Gen., Little Rock, for appellee.

MAYFIELD, Chief Judge.

The appellant was convicted of carnal abuse in the first degree and sentenced to ten years and a fine of $10,000. He was charged with the crime after the eleven-year-old daughter of his live-in girlfriend reported to her grandmother that appellant had been coming to her bed and forcing her to engage in sexual contact and intercourse with him for the past three years. Only one incident, alleged to have occurred on July 16, 1982, was charged.

Appellant's first argument for reversal is that the trial court erred by allowing testimony concerning prior "bad acts" alleged to have been committed by him. He bases this argument on two instances in which the jury was allowed to hear testimony that he had committed prior sexual offenses against the young girl.

The first instance occurred when the girl's mother testified that she had seen the defendant display his penis to the girl and order her to perform fellatio. This took place in their home approximately one month before the incident with which appellant was charged. Immediately after this testimony, the judge admonished the jury that it was not admissible to prove the character of a person in order to show that he acted in conformity therewith, but only for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The second instance complained of occurred when the prosecutrix was allowed to testify that appellant had been coming to her bed on weekends since she was eight years old, forcing her to have sexual intercourse with him and trying to force her to perform fellatio on him. Again the trial court admonished the jury.

It is appellant's argument that the admission of this evidence was error under Rule 404(b) of the Uniform Rules of Evidence, Ark.Stat.Ann. § 28-1001, which 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.

Appellant cites Wood v. State, 248 Ark. 109, 450 S.W.2d 537 (1970), and admits it holds that in cases similar to the one here involved the prior acts of misconduct are admissible. However, the appellant says that since the adoption of the Uniform Rules of Evidence in 1976, the law expressed in Wood has been superceded.

We do not agree. To the contrary, in Price v. State, 267 Ark. 1172, 599 S.W.2d 394 (Ark.App.1980), this court noted that Rule 404(b) only codified the law in existence before the rule was adopted; and in Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980), the Arkansas Supreme Court reviewed and affirmed our Price decision and relying upon Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), said the rule "clearly permits" evidence of other criminal activity committed by a defendant "if it has relevancy independent of a mere showing that the defendant is a bad character." The Alford case, decided long before the Uniform Rules of Evidence were adopted, contains this language:

Superficially similar to the case at bar are those decisions holding that in trials for incest or carnal abuse the State may show other acts of intercourse between the same parties. Adams v. State, 78 Ark. 16, 92 S.W. 1123; Williams v. State, 156 Ark. 205, 246 S.W. 503. But obviously such testimony is directly relevant to the question at issue. As stated in the Williams case, such prior acts of intercourse show "the relation and intimacy of the parties, their disposition and antecedent conduct toward each other," and for that reason the evidence aids the jury in determining whether the offense was committed on the particular occasion charged in the indictment.

Again, where the charge involves unnatural sexual acts proof of prior similar offenses has been received. Hummel v. State, 210 Ark. 471, 196 S.W.2d 594 [1946]; Roach v. State, 222 Ark. 738, 262 S.W.2d 647 [1953]. Such evidence shows not that the accused is a criminal but that he has "a depraved sexual instinct," to quote Judge Parker's phrase in Lovely v. United States, 4th Cir., 169 F.2d 386 [1948].

223 Ark. at 335, 266 S.W.2d 804.

In the case at bar, we think the evidence that appellant had made a sexual overture to the little girl in her mother's presence and that he had been sexually molesting her for three years was admissible under Rule 404(b) and the cited case law. This evidence tends to show that appellant did not crawl into the girl's bed on the night of July 16, 1982, by mistake, accident, or because he was drunk. The prior acts were committed under circumstances similar to the July 16 act, and all of them were after appellant and the girl's mother had been drinking and the mother had fallen asleep. All of this, plus appellant's unnatural sexual advances, were relevant to show purpose, plan, and opportunity. To hold it admissible under Rule 404(b) is in keeping with decisions in other states. See Elliott v. State, 600 P.2d 1044 (Wyo.1979); State v. Jerousek, 121 Ariz. 420, 590 P.2d 1366 (1979). No argument is made that the prejudicial effect of the evidence outweighed its probative value, and we find no error in its admission.

Appellant's other argument is that the court erred in admitting evidence of the victim's truthful character. The appellant testified that she was lying. He said everything she said was a lie and that her grandmother put her up to it because the grandmother did not want the girl's mother and the appellant to live together. Afterwards, on rebuttal, the state, over appellant's objection, was allowed to put into evidence the testimony of the girl's schoolteacher that the child's general reputation for truthfulness was good. Uniform Evidence Rule 608(a) provides:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful...