Dillard v. State

2020 Ark. App. 419

CHRISTOPHER SHANE DILLARD APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-19-795

ARKANSAS COURT OF APPEALS DIVISION II

September 23, 2020

APPEAL FROM THE CLAY COUNTY CIRCUIT COURT, WESTERN DISTRICT

[NO. 11CCR-16-89]

HONORABLE CINDY THYER, JUDGE

AFFIRMED

BART F. VIRDEN, Judge

Christopher Shane Dillard appeals his conviction by a Clay County Circuit Court jury of one count of rape. We affirm.

I. Relevant Facts

On June 24, 2019, the court held a pretrial hearing to address Dillard's motion to exclude testimony regarding sexually explicit text messages between Dillard and Kay Little. The messages involved Dillard's sexual fantasies involving his stepdaughters, A.L. (DOB 04/09/02) and A.L.G. (DOB 04/28/05). Dillard asserted that any testimony about the content of those text messages would be more prejudicial than probative, and the texts were inadmissible as evidence of other crimes or wrongs to show a prior bad act. The court denied the motion finding that Little's testimony was more probative than prejudicial and that the testimony fit within the "pedophile exception" to Arkansas Rule of Evidence 404(b).

The jury trial took place the next day. At the trial, Allen Earnhart, a former employee of the Arkansas State Police, testified that in July 2011, he received a call from the Paragould Police Department about Dillard's suspected abuse of a child. An investigator from the Crimes Against Children Division ("CADC") interviewed A.L., and Earnhart took a statement from Amber Risner, the children's mother and Dillard's wife. Earnhart also interviewed Dillard, who admitted that he and Little, Risner's ex-stepmother, were friends and were "sexting." During the 2011 interview, Dillard told Earnhart they had discussed fantasies of having family orgies involving A.L. and A.L.G. Earnhart testified that he did not know where the texts were and that he had never seen them. Earnhart explained that after having spoken to Risner and Dillard and after the CACD had interviewed A.L., the investigators did not believe there was a reason to further investigate the claim, and the case was closed.

Little testified that in 2011, she and Dillard were having an affair while he was married to Risner and living with Risner, A.L.G., A.L., and their infant son, E.D. During the affair, Dillard sent Risner sexually explicit text messages that "alarmed" her and made her fear that A.L.G and A.L. could be in danger. In the messages, he described wanting to have "family orgies" with A.L.G and A.L. and to "teach them oral sex." Within a week of receiving the explicit text messages, Little contacted a friend who worked at the Paragould Police Department to relay her concern. Dillard objected to Little's testimony asserting thatthe best-evidence rule required that the original text messages be produced. The State responded that the best-evidence rule did not exclude the testimony because the original texts were lost. Moreover, the State explained, Earnhart already testified about the content of the texts. The court overruled the objection.

Kaye Beall, an investigator with the CACD, testified that she interviewed A.L. in 2011. The interview lasted about forty-five minutes, and A.L. stated that "she couldn't remember." Beall explained that investigators are trained not to supply information to a child and that they are trained "to not lead the children in to saying something."

Risner testified that the family moved to Corning in June 2011. She testified that she attended class during the day, and often Dillard took care of the children. In July 2011, she received a phone call from the police, and at that time, Dillard admitted to Risner that he had an affair with Little, that he was addicted to pornography, "and that was pretty much all that was said at that point." Risner recalled seeing bruises on A.L. around this time, but A.L. gave a reasonable explanation for them, and Risner believed her. Risner testified that someone from the CACD interviewed A.L., and A.L. denied any abuse. In December, Dillard moved out of the home, and in March 2012, they divorced. In the summer of 2015 after attending a church camp, A.L. "said something" to Risner, and as a result of what A.L. said to her, Risner called the police. In September, after another conversation with A.L., Risner called the child-abuse hotline. A.L. was hospitalized at BridgeWay for a week, and Risner stated that around that time A.L. cried frequently, she was not sleeping well, and she was having nightmares. A.L. continued therapy after herhospitalization. Risner testified that A.L. had been in therapy for ADHD since she was very little, but she had difficulty remembering if A.L. was in therapy in August 2011.

A.L., who was seventeen years old at the time of the trial, testified that Dillard began sexually abusing her when she was eight or nine years old. A.L. described multiple incidents of abuse. The first time it happened, A.L. was outside playing dolls with a friend. Dillard told her to come inside because he had "another game for [her] to play." Dillard led her to his bedroom and removed her "Hello Kitty dress." A.L. testified that she was "confused," but Dillard told her they were about to play a "big girl game" and that she "needed to trust him." Dillard removed his pants and told A.L. to get on her knees. He put his penis in her mouth. A.L. testified that she started "choking and gagging and trying to pull away," but Dillard pulled her hair and moved her head until he ejaculated and made her "swallow it." Then, Dillard told A.L. to lie on her stomach on the bed. A.L. stated that "all [she] remember[ed] after that [was] pain and blood." Dillard anally raped A.L. as she cried. He told her that if she told anyone he would kill her. Another time, Dillard made A.L. perform oral sex on him while he called her degrading names. Once, A.L. was sitting on her bed reading a book, and Dillard entered the room with his belt unbuckled and told her, "You know what you have to do." A.L. testified that by this time, she had learned "not to struggle, not to fight back," so she "opened [her] mouth and [she] let him do whatever he wanted." A.L. testified that another time Dillard took her to his bedroom, "pushed up her dress," "put his hand over [her] mouth," and "raped [her]." A.L. also described an incident in which Dillard and another man "took turns using [her]." A.L. testified thatDillard hit her "over and over" and "kicked [her] in the ribs." He threatened to kill her if she told anyone about the abuse, and when her mother asked her about the bruises, A.L. told her she had fallen off the monkey bars. A.L. stated that in June 2015, the family moved to Piggott, and she attended church camp. At church camp, A.L. disclosed to a friend and a camp counselor that Dillard had hurt her. A.L. explained that in 2011, when she was first questioned about the allegations of abuse, she could not remember the incident because she was traumatized and had forgotten things and that she had been too afraid to go into detail. A.L. testified that she felt safer in 2015 because Dillard lived in Paragould, and she knew that she "wouldn't see him walking down the street, and I knew that he couldn't get me as easily."

Dillard moved for a directed verdict, arguing that there was no physical or medical evidence of any crime and that Dillard had not been identified as the person who committed the crimes. The State responded that "he's been named by all three names by each witness that has testified specifically, and directed as the ex-husband, stepfather[.]" The court denied the motion but allowed the State to reopen its case and call A.L. to the stand to identify Dillard. A.L. took the stand and pointed to Dillard stating that he was wearing a blue shirt and that he was the man who had raped her. Dillard renewed his directed-verdict motions, which the court denied. The jury found Dillard guilty of one count of rape and sentenced him to forty years' imprisonment in the Arkansas Department of Correction. This appeal follows.

II. Discussion

A. Admission of Testimony Regarding 2011 Text Messages

1. The pedophile exception

On appeal, Dillard raises several issues regarding Little's testimony regarding his 2011 text messages. For his first point on appeal, Dillard asserts that the circuit court erred in allowing Little's testimony about the text exchange because the testimony is not evidence of prior sexual conduct with children; thus, the testimony does not fit within the pedophile exception. Dillard's argument is not well taken.

Arkansas Rule of Evidence 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she 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.

We have long recognized a "pedophile exception," which allows proof of "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." Bobo v. State, 102 Ark. App. 329, 333, 285 S.W.3d 270, 274 (2008). Such evidence not only helps to prove the depraved sexual instinct of the accused but is also admissible to show the familiarity of the parties and antecedent conduct toward one another and to corroborate the testimony of the victim. Id. The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the circuit courtand will not be disturbed absent a manifest abuse of discretion. Id. Additionally, prejudice must have resulted. Ralston v. State, 2019 Ark. App. 175, 573 S.W.3d 607. An appellate court will not reverse the circuit court's ruling absent a showing of manifest abuse. Id. Abuse of discretion is a high threshold that does not simply...