Sanders v. State , 2017 Ark. App. LEXIS 656 ( 2017 )

Cite as 2017 Ark. App. 567
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-17-216
DARRELL EDWARD SANDERS Opinion Delivered: November 1, 2017
APPELLANT APPEAL FROM THE HOT SPRING
COUNTY CIRCUIT COURT
V. [NO. 30CR-15-131]
HONORABLE CHRIS E WILLIAMS,
STATE OF ARKANSAS JUDGE
APPELLEE AFFIRMED
RAYMOND R. ABRAMSON, Judge
On August 25, 2016, a Hot Spring County jury convicted appellant Darrell Sanders
of two counts of rape. He was sentenced to a total of 42 years’ imprisonment in the Arkansas
Department of Correction (ADC). On appeal, he challenges the sufficiency of the evidence
and argues the circuit court erred in granting the State’s motion to admit evidence under
Arkansas Rule of Evidence 404(b). For the following reasons, we affirm.
Sanders’s victim was fourteen-year-old S.J., who lived with him on weekends in
2014. Sanders appeals his convictions and alleges that the evidence is insufficient to support
his second conviction for rape because there was no evidence introduced at trial that he was
the guardian of the victim. He also alleges that his now adult daughters’ testimony that he
had sexually abused them when they were approximately S.J.’s age was improperly admitted
under Rule 404(b) of the Arkansas Rules of Evidence.
Cite as 2017 Ark. App. 567
Although Sanders argues the sufficiency of the evidence in his second point on
appeal, double-jeopardy considerations require this court to consider a challenge to the
sufficiency of the evidence before the other issues on appeal. See Jones v. State, 349 Ark. 331,
78 S.W.3d 104 (2002). To preserve the sufficiency of the evidence for appellate review a
defendant must move for directed verdict at the close of the State’s evidence and at the close
of all the evidence. Ark. R. Crim. P. 33.1(a) (2016). The failure of a defendant to challenge
the sufficiency of the evidence at the times and in the manner required in subsection (a) will
constitute a waiver of any question pertaining to the sufficiency of the evidence to support
the verdict or judgment. Ark. R. Crim. P. 33.1(c).
Sanders did not move for a directed verdict at the close of the State’s case, nor did
he move for a directed verdict at the close of all evidence. No motion for directed verdict
was ever made, which is in contravention of Rule 33.1 of the Arkansas Rules of Criminal
Procedure. Thus, Sanders’s sufficiency challenge is now barred on appeal.
Sanders also argues that the circuit court erred in granting the State’s motion to admit
evidence under Rule 404(b) of the Arkansas Rules of Evidence. Before trial, the State filed
a motion to admit evidence of prior uncharged incidents of deviate sexual activity or sexual
intercourse by Sanders with his two daughters who are now adults. A hearing was held and
the State presented the testimony of Sanders’s daughters, who made the allegations.
Rulings on the admissibility of evidence are matters within a circuit court’s
discretion, and those rulings are not disturbed on appeal absent a showing of an abuse of
that discretion and prejudice. Grant v. State, 357 Ark. 91, 93, 161 S.W.3d 785, 786 (2004).
“Abuse of discretion is a high threshold that does not simply require error in the trial court’s
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Cite as 2017 Ark. App. 567
decision, but requires that the trial court act improvidently, thoughtlessly, or without due
consideration.” Id. Evidence of a person’s bad acts generally is not admissible to show action
in conformity therewith. Ark. R. Evid. 404(b) (2016). Nevertheless, evidence of prior bad
acts is admissible if they are independently relevant, that is, relevant to show a material fact
other than that the accused is a criminal or bad person. Spencer v. State, 348 Ark. 230, 236,
72 S.W.2d 461, 464 (2002).
“Evidence of other crimes, wrongs, or acts . . . may . . . be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, . . . or absence of
mistake or accident.” Ark. R. Evid. 404(b). Our supreme court has recognized for over a
century a “pedophile exception” under which evidence of an accused’s prior sexual conduct
with children is admissible “not for the purpose of proving a substantive crime, but to show
the relation and familiarity of the parties, their disposition, and antecedent conduct towards
each another, and as corroborative of the testimony of the [victim].” Williams v. State, 103
Ark. 70, 78, 146 S.W. 471, 474 (1912). Such testimony is admissible “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.” Parish v. State, 357 Ark. 260, 268, 163 S.W.3d 843,
847 (2004). It is also admissible when it helps to show the depraved sexual instinct of the
accused. Id. For the pedophile exception to apply, there must be a sufficient degree of
similarity between the evidence to be introduced and the charged sexual conduct. Allen v.
State, 374 Ark. 309, 316, 287 S.W.3d 579, 584 (2008) (citing Hamm v. State, 365 Ark. 647,
652, 232 S.W.3d 463, 468 (2006)).
In Sanders’s case, the victim, S.J., and Sanders’s two daughters, all were
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Cite as 2017 Ark. App. 567
approximately the same age when Sanders raped them. S.J. was fourteen. One daughter was
thirteen, and the other daughter remembers being eleven or twelve when the sexual abuse
started. Moreover, S.J. and the daughters were all raped by Sanders in similar locations: a
car, a church, and in Sanders’s home. All were vaginally raped. The pedophile exception to
Rule 404(b) is fully applicable here; we hold that the circuit court did not abuse its discretion
in admitting the evidence. Accordingly, we affirm Sanders’s convictions and sentences.
Affirmed.
GLADWIN and WHITEAKER, JJ., agree.
Stuart Vess, for appellant.
Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.
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