Butler v. State
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Cite as 2010 Ark. 259
SUPREME COURT OF ARKANSAS
No.
JAMES BUTLER,
CR09-1353
Opinion Delivered
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
May 27, 2010
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT,
NO. CR2008-268 I,
HON. JOHN HOMER WRIGHT,
JUDGE,
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
Appellant James Butler appeals from the judgment and commitment order of the
Garland County Circuit Court, convicting him of two counts of rape and sentencing him to
life imprisonment on each count, to be served consecutively. His sole point on appeal is that
the circuit court abused its discretion in admitting certain evidence over his objections in
accordance with Arkansas Rule of Evidence 404(b) (2009). We find no error and affirm
Butler’s convictions and sentence.
Because Butler does not challenge the sufficiency of the evidence to support his
convictions, we will only briefly recite the general facts here and will set forth the more
specific facts relevant to the point on appeal as it is discussed. See, e.g., Davis v. State, 367 Ark.
330, 240 S.W.3d 115 (2006). The State charged Butler with two counts of rape, alleging that
(1) on or about April 1, 2007, through September 1, 2007, Butler engaged in sexual
intercourse or deviate sexual activity with a nine-year-old female, S.K., by inserting his penis
Cite as 2010 Ark. 259
into her vagina, and (2) on or about August 1, 2002, through April 4, 2008, Butler engaged
in sexual intercourse or deviate sexual activity with a minor, S.K., by repeatedly inserting sex
toys into her vagina. A jury trial commenced on September 2, 2009. The jury heard
testimony from multiple witnesses, including the victim herself, the victim’s mother, medical
professionals, law enforcement officials, and others about the events and circumstances.
Additionally, Butler’s prior conviction for a violation of a minor in the first degree was
admitted into evidence along with the testimony of the victim of that prior conviction, A.P.,
Butler’s biological daughter. Butler was found guilty, and a judgment and commitment order
was entered against him on September 15, 2009. He filed a timely notice of appeal on
September 18, 2009.
Butler argues that, pursuant to Ark. R. Evid. 404(b), the circuit court erred in allowing
evidence of his prior conviction at trial. The State avers that the circuit court properly
admitted the evidence pursuant to the pedophile exception to Rule 404(b). The admission
or rejection of evidence under Rule 404(b) is committed to the sound discretion of the circuit
court, which this court will not disturb on appeal absent a showing of manifest abuse. See
Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996).
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.
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Cite as 2010 Ark. 259
Ark. R. Evid. 404(b) (2009). Evidence offered under Rule 404(b) must be independently
relevant to make the existence of any fact of consequence more or less probable than it would
be without the evidence. See Eubanks v. State, 2009 Ark. 170, 303 S.W.3d 450. In other
words, the prior bad act must be independently relevant to the main issue, in that it tends to
prove some material point rather than merely proving that the defendant is a criminal. See
id.
This court has long recognized a “pedophile exception” to Rule 404(b). See id. We
have approved allowing evidence of the defendant’s prior 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. See id. The rationale for this
exception is that such evidence helps to prove the depraved sexual instinct of the accused.
See id. For the pedophile exception to apply, we require that there be a sufficient degree of
similarity between the evidence to be introduced and the sexual conduct of the defendant.
See Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006). We also require that there be an
“intimate relationship” between the perpetrator and the victim of the prior act. Id. at 652,
232 S.W.3d at 468–69.
At Butler’s trial, S.K. testified that she had known Butler, whom she called “Uncle
Jim,” since she was about three years old and that she would spend time with him in the
summer, including overnight visits. S.K. further testified that during her visits, Butler would
touch her “bobo,” her word for her vagina, and used toys to touch her “bobo.” She stated
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Cite as 2010 Ark. 259
that he used toys “a bunch” and confirmed that they would go in a little bit. S.K. testified
that Butler would put a “gel kinda stuff” that came from a tube on the toys before he used
them on her and that the toys would “buzz.” S.K. said that she would be in Butler’s house
or truck when he used the toys on her. S.K. also testified about an incident that occurred
when she was on a boat with Butler and his adopted toddler. She stated that he “stuck his
wiener inside [her] bobo.”
A.P., who was 37-years-old at the time of trial, testified that she had been sexually
abused by Butler on “numerous occasions” and “for basically as long as [she] can remember
. . . until the age of sixteen.” A.P. stated that he had penetrated her vagina with toys as well
as his penis.
A.P.’s testimony falls squarely under the pedophile exception to Rule 404(b). The
relationship between her and her father was clearly an intimate one. See White v. State, 367
Ark. 595, 242 S.W.3d 240 (2006). Butler argues that the reason the pedophile exception does
not apply here is because there was not a sufficient degree of similarity between the prior bad
act introduced at trial, the sexual abuse against A.P., and the alleged conduct for which he was
being prosecuted, sexual acts with S.K. We disagree.
The conduct about which A.P. testified was sufficiently similar to the charged conduct
to warrant application of the exception. A.P. testified that her father penetrated her both with
toys and his penis. This conduct is identical to that alleged by S.K. This court has suggested
that when the sexual acts alleged are identical, there is at least some evidence of a connection
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Cite as 2010 Ark. 259
between the two allegations demonstrating a depraved sexual instinct. See Kelley v. State,
2009 Ark. 389, ___ S.W.3d ___. Additionally, A.P. and S.K. were both under Butler’s care
at the time of the abuse. Moreover, both had been adolescent girls when the abuse occurred.
We have consistently considered similarities in age and gender of victims to be demonstrative
of a depraved sexual instinct, such that the pedophile exception is applicable. See id.
In Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005), this court upheld the
application of the pedophile exception even where the prior conduct was not identical to the
charged conduct. We noted that the victim and the witness were similar in age when the
abuse happened, that both had a close relationship with the appellant, and both were in the
appellant’s care at the time of the abuse. See id. More recently, in Bryant v State, 2010 Ark.
7, ___ S.W.3d ___, we again upheld the application of the pedophile exception where the
victim of the prior bad act gave testimony similar to the victim in that case. Both witnesses
were young boys at the time of the abuse, both testified that the appellant was often
intoxicated at the time of the abuse, and both were subjected to the sexual abuse while staying
in the appellant’s home. See id. In light of such precedent, we cannot say that the degree of
similarity in the instant case between the prior conduct and the charged conduct was
insufficient. For this reason, we conclude that A.P.’s testimony was properly admitted in
accordance with the pedophile exception, and we affirm Butler’s convictions and sentence.
In accordance with Rule 4-3(i) of the Arkansas Supreme Court Rules, the record has
been reviewed for all objections, motions, and requests made by either party that were
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decided adversely to the appellant, and no prejudicial errors were found.
Affirmed.
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