Holland v. State

• Decision Date: 12 November 2014
• Docket Number: No. CR–14–146.,CR–14–146.
• Citation: 448 S.W.3d 220,2014 Ark. App. 644
• Parties: Andrew HOLLAND, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2014 Ark. App. 644

448 S.W.3d 220

Andrew HOLLAND, Appellant

v.STATE of Arkansas, Appellee.

No. CR–14–146.

Court of Appeals of Arkansas.

Nov. 12, 2014.

Rehearing Denied Jan. 21, 2015.

Lassiter & Cassinelli, by: Erin Cassinelli ; and Jeff Rosenzweig, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

Opinion

KENNETH S. HIXSON, Judge.

After a jury trial in October 2013 in Pulaski County Circuit Court, appellant Andrew M. Holland was found guilty of committing first-degree sexual assault against one teenage boy (XB)¹ and second-degree sexual assault against another teenage boy (JD).² Appellant was sentenced to concurrent prison terms, forty and thirty years respectively, for an effective prison term of forty years. A judgment was filed in November 2013, from which appellant filed a timely notice of appeal.

Appellant does not challenge the sufficiency of the evidence to support his convictions. Rather, appellant argues on appeal that the trial court abused its discretion with regard to three evidentiary rulings: (1) by permitting the State to introduce evidence of appellant's alleged prior bad acts pursuant to the “pedophile exception” to Arkansas Rule of Evidence 404(b) ; (2) by excluding evidence of each victim's prior sexual conduct pursuant to the rape-shield statute, Arkansas Code Annotated section 16–42–101 ; and (3) refusing appellant access to JD's inpatient psychotherapeutic-treatment records, where the trial court deemed those records to be privileged pursuant to Arkansas Rule of Evidence 503. A trial court has broad discretion in making evidentiary rulings and will not be reversed absent an abuse of that discretion. Allen v. State, 374 Ark. 309, 287 S.W.3d 579 (2008). The State asserts that appellant has failed to demonstrate an abuse of discretion or any clear error. We affirm.

To place these trial court rulings in context, we discuss the substance of the testimony given at trial by XB, XB's mother, JD, and JD's mother. XB testified that he was presently twenty years old, and he knew appellant, who he called “Andy,” because Andy was his mother's friend and a neighbor of theirs when XB was a boy. XB stated that appellant would discipline him or babysit him when his mother was at work; he acknowledged that his mother was unable to handle him. XB said that when he was age thirteen to fifteen, Andy sexually abused him when he visited Andy's house.

XB said that on one occasion Andy asked him to come to his bedroom and to sit with him, and after XB complied, Andy began rubbing his (XB's) leg. XB said that Andy put a pornographic DVD on television and then told XB to get undressed and to get into bed with him. XB described to the jury that he felt Andy move toward his body from behind in the bed, felt him grab his (XB's) penis and masturbate him, and then felt Andy's penis penetrate his buttocks. After a few minutes, Andy informed XB that he (XB) had a “big d**k,” leaving XB in the bedroom with a bottle of lotion and instructions to “finish up.” On another occasion, XB said that he went to Andy's house where Andy asked to watch XB masturbate, and he complied but would not make eye contact with Andy.

XB said that his mother requested Andy to discipline him for misbehavior, which Andy did by whipping him with a belt. XB added that Andy encouraged him to masturbate before school to see if it would help calm him down. XB was in and out of therapeutic homes and juvenile court during this time period. While in one therapeutic group home, he revealed the abuse to one of the house parents in charge there. XB was concerned that perhaps the sexual abuse was part of the reason he was misbehaving, but he regretted revealing the abuse when he realized that it would have to be reported to authorities. XB admitted that he lied when he told investigators that he was anally penetrated three times because it only happened once; he just wanted the investigator to leave him alone.

XB's mother Danetta Thompson testified that XB's father was not in his life and had instead been in prison for about twenty years. Thompson held a job and was a single mother of three children. Thompson stated that she had known appellant for a long time and had dated him briefly; they remained friends after an amicable breakup. She testified that appellant helped her out with things like cutting the grass and with disciplining XB. She described XB as a struggling student who was always in remedial classes; he took attention deficit medication for a while; he did not graduate high school until he was twenty years old. She said that as a young teenager, XB was noncompliant with basic chores and her house rules; he was engaging in high-risk behavior and lying to her. She said that XB got into more and more trouble as he grew older, so he was admitted intermittently to therapeutic homes and centers. While XB was in a therapeutic home, she was informed that he reported sexual abuse. Thompson said that her son was reclusive and did not like to communicate his feelings, so she was unaware of the abuse until the mandated reporter set things in motion.

JD also testified at trial; he was age eighteen. JD said that he was fifteen years old when he met Andy, seeking out Andy to manage him and help him become a successful rap artist. JD said that he first attempted to contact Andy by a Facebook message, to which Andy replied in the summer of 2010 and began to work with JD at his (Andy's) home studio. JD described Andy's house, with Andy's bedroom in the back on one side. Andy's house had another bedroom with a closet where the recording equipment was kept; a different aspiring rap artist lived in this bedroom. JD agreed that Andy taught him how to promote himself as a rap artist, and Andy even escorted him to New York in December 2010 so that JD could try out in a talent search for a television show. JD was at Andy's house often, basically whenever he was not attending school. He explained that at first, Andy only touched him randomly or in passing with thigh rubs, hugs, and other groping behavior. JD said that over time Andy progressed to “extreme touching,” meaning JD's bare skin and including his penis.

JD described one time when Andy told him to come sit on his bed, kissed JD's cheek and neck, and then reached into JD's underwear to feel his penis and told JD that he had “a big d**k.” JD said that he tolerated this behavior because he was so passionate about his rap music and wanted Andy's professional help. JD also testified that he kept all this secret because it was embarrassing and emasculating to be taken advantage of by this man.

JD described another time when they were sitting on Andy's couch and Andy pulled JD on top of him and touched JD's genital area; Andy also had JD put his hand on Andy's erect penis. He testified that Andy showed him pornography on a laptop computer. JD ended up in a behavioral health hospital, and when he was being processed for long-term care, he did not mean to but answered “yes” when asked if he had been sexually abused. He named Andy as the perpetrator. This started the investigation regarding JD and Andy. JD stated that it was not advantageous for him to tell about the abuse because it meant he had to stay in therapy for a longer period of time, and it ended his rap career.

JD's mother Jocelyn Davis met Andy some time around July 2010; she heard that appellant was a rap music producer who could help her son. She described Andy as a mentor to her son and a friend to her, helping her move, giving her money, and picking up her children from school when she needed it. Davis, having put Andy in a position of trust, expected Andy to act as a parental reinforcement and be the authority figure to her son, particularly because JD's father was not in his life. She said that Andy came to her house after XB's allegations came to light, telling Davis that XB was lying about this to get himself out of trouble. Davis testified that JD became progressively more defiant of her, and he had not yet revealed that Andy abused him too. On a night in October 2011, she said that she and her son had a physical confrontation about his defiant behavior, so she called the police on her son. The choice at that point was to send JD to juvenile court or to a treatment center; they chose treatment. It was only after her son was in a treatment facility for a few weeks that she was informed by her son's therapist and an investigator that he reported sexual abuse by Andy. She reserved judgment on the truth of the allegations until after she saw and spoke with JD; she believed that he was telling the truth.

Pedophile Exception to Arkansas Rule of Evidence 404(b)

Appellant argued to the trial court, and now argues on appeal, that the trial court erred by permitting the State to enter into evidence the details of two 1989 convictions for committing sexually abusive acts on two teenage boys in California; the testimony of one of those boys (now an adult) explaining the factual basis of those convictions; and the testimony of three other boys (now adults) about appellant having sexually abused them when those boys were thirteen to fourteen years old. Appellant asserts that this information was not sufficiently similar or temporally close enough in time to the charges for which he was standing trial. He argues that his due-process rights were violated because the allegations were patently unreliable and unfairly prejudicial because of how long ago the alleged abuse occurred. Thus, appellant argued, the “pedophile exception” should not apply to permit admission of all this highly and unfairly prejudicial evidence.

The State asserts, as it did during trial, that this evidence was permissible by virtue of Arkansas Rule of Evidence 404(b) and Arkansas's “pedophile exception.” Rule 404(b) 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

...