Mosley v. State
| Decision Date | 16 September 1996 |
| Docket Number | No. CR,CR |
| Citation | 929 S.W.2d 693,325 Ark. 469 |
| Parties | John Henry MOSLEY, Appellant, v. STATE of Arkansas, Appellee. 95-1345. |
| Court | Arkansas Supreme Court |
Mark S. Cambiano, Morrilton, for Appellant.
Sandy Moll, Assistant Attorney General, for Appellee.
John Henry Mosley was charged with having committed the crimes of rape and incest against his nineteen-year-old daughter. The jurors heard evidence on both charges. They were instructed on the crime of incest, but were additionally instructed that they were to consider the charge of incest only if they had a reasonable doubt about Mosley being guilty of the crime of rape. The jury found Mosley guilty of rape. The trial court sentenced Mosley, a six-time offender, to forty years in prison. He raises eight points for reversal, none of which have merit.
Two of Mosley's arguments involve evidentiary rulings during the State's case-in-chief. In the first of these arguments Mosley contends that the trial court erred in allowing the prosecutrix to testify that, beginning when she was fifteen, Mosley on a number of occasions committed the crime of rape against her and that he threatened to kill her if she told of the assaults. He predicates his argument on Ark. R. Evid. 404(b), which provides:
(b) Other Crimes, Wrongs, or Acts. 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.
It is settled that the list of exceptions set out above is exemplary and not exhaustive. White v. State, 290 Ark. 130, 140, 717 S.W.2d 784, 789 (1986). It is also settled that the rule permits introduction of testimony of other criminal activity if it is "independently relevant to the main issue--relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal--then evidence of that conduct may be admissible with a proper cautionary instruction by the court." Id. at 140, 717 S.W.2d at 789 (quoting Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980)). In Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), in affirming a ruling allowing evidence of prior sexual abuse of the victim by the defendant, we wrote:
[W]e will allow such testimony to show similar acts with the same child or other children in the same household when it is helpful in showing a "proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship." ... Such evidence helps in proving the depraved sexual instinct of the accused.
Id. at 71, 732 S.W.2d at 455 (citations omitted). See also Young v. State, 296 Ark. 394, 396-97, 757 S.W.2d 544, 546 (1988) () (emphasis in the original).
During the State's case-in-chief the trial court additionally admitted proof that, eleven years earlier, Mosley pleaded guilty to the crime of carnal abuse of his six-year-old stepdaughter. Mosley initially contends that the trial court erred in allowing the evidence because it was not disclosed in a timely manner. See Ark. R.Crim. P. 17. The facts simply do not support Mosley's argument. The facts show that the information alleged Mosley was an habitual offender, and he was advised of this specific conviction early enough for him to file a motion in limine asking the trial court to exclude proof of it. In addition, at a pretrial hearing on the motion, his counsel admitted that the State had provided notice of this conviction "in a very timely manner." Under these facts, we have no hesitancy in holding that the trial court correctly ruled that notice of the conviction was given in a timely manner.
Mosley alternatively argues that the prior conviction was not relevant even though it involved his stepdaughter. See Young v. State, 296 Ark. 394, 757 S.W.2d 544 (1988). The trial court considered both the similarity of the prior conviction to the current charges of rape and incest and the parental relationship of Mosley with both of the victims and correctly applied Rule 404(b). In Alford v. State, 223 Ark. 330, 335, 266 S.W.2d 804, 807 (1954), we wrote that evidence of a prior similar offense in cases where the charge involves unnatural sexual acts shows not that the accused is a criminal but that he has a depraved sexual instinct. And in Free v State, 293 Ark. 65, 732 S.W.2d 452 (1987), we approved allowing evidence of similar acts with the same or other children in the same household 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.
Mosley next contends that the trial court erred in refusing to declare a mistrial. The facts leading to the argument are as follows. In addition to the case now on appeal, Mosley was a suspect in the murder of Pamela Felkins. At a pretrial hearing on this case, the State agreed that evidence related to the murder and its investigation was not relevant. At trial, Max Young, one of the officers who investigated this case, testified that a superior officer briefed him on the alleged rape in this case, and he, in turn, responded to the superior that he had a photograph of Mosley. Mosley moved for a mistrial on the ground that Young had testified about the murder investigation.
A mistrial is an exceptional remedy to be used only where any possible prejudice cannot be removed by an admonition to the jury. Free v. State, 293 Ark. at 73, 732 S.W.2d 452 (1987). The decision to grant a mistrial rests within the discretion of the trial judge, and it should be granted only when the prejudice is so manifest that the trial cannot in justice continue. Novak v. State, 287 Ark. 271, 277, 698 S.W.2d 499, 503, reh'g denied (1985). The standard of review on appeal is whether the trial court abused its discretion. Free v. State, supra. Here, the officer did not testify about the murder or the investigation of the murder, nor did he mention that Mosley was a suspect in the murder. Further, there is no overt nexus between the fact that the officer had somehow obtained a photograph of Mosley and the fact that Mosley was a suspect in a murder. In sum, Mosley has not shown that the trial court abused its discretion in the ruling.
We do not reach Mosley's remaining points for reversal because of various procedural bars. In one of those points he contends that he did not receive effective assistance of counsel. This issue was not raised in the trial court, and it may not be raised in a direct appeal until it has been considered below. Sumlin v. State, 319 Ark. 312, 891 S.W.2d 375 (1995).
Two of his remaining points for reversal involve the trial court's refusal to allow him to introduce three photographs of the prosecutrix and the trial court's refusal to allow him to question the prosecutrix about the photogrpahs. Before trial, the State objected to introduction of the pictures. The trial court ruled that the photographs were not relevant and, further, that any value they might have would be outweighed by their prejudicial effect. Mosley has not supplied reproductions of the...
To continue reading
Request your trial
-
Hanlin v. State
...in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. Mosley v. State, supra, citing Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). The rationale for recognizing this exception is that such evidence helps to pr......
-
Kelley v. State
...... In a similar case, this court affirmed a circuit court's ruling allowing the State to admit proof that the appellant had pleaded guilty to the crime of carnal abuse of his six-year-old stepdaughter eleven years prior to his trial for the rape of his daughter. Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996). While it appears from the opinion that the prior victim did not testify at the appellant's trial, the circuit court was nonetheless able to conduct a pedophile-exception analysis. We held that “[t]he trial court considered both the similarity of the ......
-
Scaggs v. State
...see Munson v. State , 331 Ark. 41, 959 S.W.2d 391 (1998), but the victims must have resided with the defendant. See Mosley v. State , 325 Ark. 469, 929 S.W.2d 693 (1996) ; Davis v. State , 325 Ark. 96, 925 S.W.2d 768 (1996). We hold that the pedophile exception does not require the witness ......
-
Craigg v. Hobbs
...relevant and does not merely establish that the defendant is a bad person who does bad things. Id. (citing Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996)).Additionally, our cases have also recognized a separate "pedophile exception" to the general rule that evidence of a defendant's p......