I just filed the initial brief in Craigg v. State in the Arkansas Supreme Court. It involves the admission of evidence under the “pedophile exception” to Arkansas Rule of Evidence 404(b).
The case involved allegations of oral sex on a sleeping 14 year-old boy during a camping trip. The jury convicted the defendant and gave him life in prison. The jury also heard about the defendant’s prior conviction for lewd molestation out of Oklahoma 17 years prior.
The defense fought to keep evidence of the prior crime out because it did not meet the requirements of the “pedophile exception.” The prior crime was not similarly committed, it was remote in time, and there was no intimate relationship between the defendant and the victim. The prior crime involved oral sex on a 4 year-old girl while other individuals were in the residence. There was no testimony regarding the relationship of the defendant to the girl or to the girl’s parent. In addition, it was committed 17 years prior.
The trial court admitted the prior offense to show “plan, motive, or intent.” Besides the fact that the “pedophile exception” should not apply, there was another huge problem with this ruling. The State only offered the judgment and commitment order from Oklahoma. The order had no facts other than the conviction was for lewd molestation. There was no testimony explaining the facts or what constitutes as lewd molestation. Consequently, all the jury had was a conviction. How would that show plan, intent, or motive? How would that show anything except that the defendant was a bad person? It was certainly an error and under the law the testimony of the victim alone cannot constitute overwhelming evidence. Therefore, harmless error will not apply. It will be interesting to see what the State responds with.