Dolson v. State

558 S.W.3d 899

Jacob Robert DOLSON, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-7

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: September 26, 2018

Omar F. Greene, for appellant.

Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, Judge

After a jury trial in the Johnson County Circuit Court, Jacob Robert Dolson was convicted on three counts of rape and sentenced to forty years' imprisonment. On appeal, Dolson contends that the circuit court abused its discretion by admitting evidence in violation of Arkansas Rules of Evidence 403 and 404 (2017). We affirm.

I. Facts

In 2015, Dolson lived with Trinity Barnes, their child, and her three other children. In June, a maintenance man reported unsanitary conditions in the house where Dolson, Barnes, and the children were living. He also reported that he had witnessed children locked in a bedroom in the house. Both Dolson and Barnes admitted to police that they had locked the children in the room for punishment. The Arkansas Department of Human Services (DHS) removed the children from the residence. While they were in foster care, two of Barnes's children disclosed to foster parents the sexual and physical abuse by Dolson that they had suffered. Dolson was charged on September 14, 2016, with four counts of rape, Ark. Code Ann. § 5-14-103(a)(3)(A) (Repl. 2013).¹

Before the jury trial held on August 11, 2017, the State filed a notice of intent to use Rule 404(b) evidence of the children's having been locked inside a bedroom that contained a urine-soaked mattress. Testimony would also include that the bedroom windows had been closed; the air conditioning was turned off; and the children had been taken into DHS custody when the deplorable conditions of the home were discovered. The State alleged that the evidence of the home's condition at the time the sexual abuse occurred would establish Dolson's complete disregard for the well-being of the children. The State relied on Lindsey v. State , 319 Ark. 132, 139, 890 S.W.2d 584, 588 (1994), wherein evidence that established an intentional pattern of abusive behavior was admitted.

Dolson filed a contradicting motion in limine to exclude the Rule 404(b) evidence. He argued that he and Barnes had pled guilty to a misdemeanor in connection with the children's being taken into DHS custody on June 22, 2015. He claimed that introduction of the evidence would violate Rule 404(a) because it would only tend to prove bad character. Dolson further argued that the evidence would violate Rule 403 because it was not sufficiently probative to outweigh the unfair prejudice to him. Finally, Dolson argued that Lindsey , supra , was distinguishable from his case.

At the pretrial hearing on these motions, Dolson's counsel argued that the bad conditions in the house were not relevant. He claimed that the evidence would serve only to inflame the jury and that it had nothing to do with the elements of rape that had to be proved. Defense counsel urged that the dissent in Lindsey, supra , should be followed and that evidence of the "nasty" house would not help the jury determine whether rape of the children had occurred. Defense counsel also claimed that Lindsey could be distinguished because Dolson was not the father of the alleged victims, whereas the father had been the perpetrator in Lindsey .

The State responded that Dolson's written statement said, "We lock the children in the room because they're bad." Further, Dolson had indicated in his interview with the sheriff that he had locked the children in a room a couple of times. When questioned by the court about whether the State could establish a pattern, the State responded that it could establish that there were deplorable conditions in the house during the time period that it alleged the sexual abuse had taken place. The circuit court granted the State's motion to allow the evidence. During the trial, witnesses testified regarding the conditions of the house and Dolson's admission that he had locked the children in their room for punishment.

TB testified that he was eight years old and that when he had lived with Dolson and his birth mother, if there was any food and Dolson was there, Dolson "made me do something gross." He said that Dolson "touched me with his pee-pee [penis] in my mouth, every morning." TB said, "I can tell you that he was standing up, and I would be with him in my sisters' room, after they moved in with me. I remember that he put his hand on my head and push[ed] it against himself." TB identified Dolson in the courtroom.

Seven-year-old EB testified that Dolson had touched her "where it wasn't okay." She asked the prosecutor to show her the anatomically correct picture of a boy. She said,

I can show you that he touched me with his pee-pee when my clothes were off. I saw him put something on his pee-pee. I saw a plastic, yucky thing. I can't tell you why he did that, he did not tell me, but he would always put that on. I saw something come out of his pee-pee. Yes, I agree that it was like gel or some white juice. I can tell you I saw that happen once. I would be laying down on his bed and he would put his pee-pee in my bottom. I did have to put part of my body on his pee-pee, my mouth. I say it happened a lot of times. I am telling you that he put the plastic thing on his pee-pee when he put it in my bottom, and I am telling you that he did not put on the plastic thing when he put it in my mouth.

Ruth Dudding, a nurse at the Child Safety Center in Fort Smith, testified that she had conducted a forensic examination of TB and EB and found no evidence of acute or penetrating trauma. She said that the majority of children who have been sexually abused do not have definitive findings or have injury to the anal or genital area.

Dolson moved for a directed verdict at the conclusion of the State's evidence and renewed his motion concerning the State's use of evidence under Rule 404(b). The circuit court denied the motions.

Dolson's mother testified that she believed TB was not truthful. She said that after Dolson and Barnes had moved, she would pick up the children for church and see that their house was a mess. She stated that a messy house does not make a sex offender. Andrew Dolson stated that he is Dolson's younger brother and that he had lived next door to Dolson in June 2015. He said that TB was not truthful.

Appellant Dolson testified that he worked both the day and night shifts for Walmart Neighborhood Market. He said that his schedule had kept him away from the house a lot when the children had been there. He said that the house got "so nasty" because he and Barnes had split the responsibilities and that Barnes had been on drugs. He said that he had a "hard" relationship with TB, giving as an example a time when he had scratched TB while sword fighting with him. He said that TB told his teacher about it, and a DHS worker came to their house to investigate. Dolson denied the sexual-abuse allegations. He said that he would punish the children by putting them in a corner or by locking them in their bedroom for five minutes at a time. He said that he had lied to law enforcement when he told them he had routinely locked the children in their room. He said that he was not the children's father, that he had not married their mother, and he had not adopted them or obtained a guardianship over them. He testified that he was not aware of any legal duty he owed the children but said he had financially supported them. He said that he and Barnes had locked the cabinets because the children were wasting all the food. He also said that they had begun locking the children in the room in April 2015. He claimed that TB had been in trouble a lot because he lied and that TB and EB were not truthful.

Dolson renewed his motion for directed verdict and his objection to the Rule 404(b) evidence. He asked for a jury instruction related to that evidence. The circuit court granted the instruction and denied the motion for directed verdict. The instruction was read to the jury as follows:

Members of the jury, you are instructed that evidence of other wrongs or acts of Jacob Dolson may not be considered by you to prove the character of the Defendant—in order to show—may not be considered by you to prove the character of the Defendant, Jacob Dolson, in order to show that he acted in conformity therewith. This evidence is not to be considered to establish a particular trait of character that he may have, nor is it to be considered to show that he may have acted similarly or accordingly on the day of the incident. The evidence is merely offered as evidence of an intentional pattern of abusive behavior. Whether any other alleged crimes, wrongs, or acts have been committed is for you to determine.

The jury found Dolson guilty on three counts of rape and recommended sentences of forty years on each count to run concurrently. The circuit court imposed the sentence recommended by the jury. This appeal timely followed.

II. Standard of Review

This court considers whether a circuit court has committed a manifest abuse of discretion when reviewing issues that turn on Rules 403 and 404 as follows:

Rule 404(b) of the Arkansas Rules of Evidence 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 acted in conformity therewith, but it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Thus, there is a general rule excluding evidence of a defendant's prior acts, but the rule also provides an exemplary, but not exhaustive, list of exceptions to that rule. Hamm v. State , 365 Ark. 647, 232 S.W.3d 463 (2006). Evidence is not admissible under Rule 404(b) simply to show a prior bad act. Laswell v. State , 2012 Ark. 201, 404 S.W.3d 818. Rather, the test for admissibility under Rule 404(b)

...