{
  "id": 6137927,
  "name": "James Renny EFIRD v. STATE of Arkansas",
  "name_abbreviation": "Efird v. State",
  "decision_date": "2008-04-09",
  "docket_number": "CA CR 07-885",
  "first_page": "110",
  "last_page": "114",
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    {
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      "cite": "102 Ark. App. 110"
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    {
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      "cite": "282 S.W.3d 282"
    }
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  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
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      "reporter": "Ark.",
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    {
      "cite": "367 Ark. 595",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "category": "reporters:state",
      "reporter": "Ark.",
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  "analysis": {
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    "char_count": 9111,
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  "last_updated": "2023-07-14T21:30:35.503442+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Hart and Miller, JJ., agree."
    ],
    "parties": [
      "James Renny EFIRD v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "John B. Robbins, Judge.\nAppellant James Renny Efird was udge. rape and sexual indecency with a child. He was sentenced to consecutive prison terms of forty and twelve years. Mr. Efird now appeals, arguing that the trial court erred in allowing his younger half-brother, Doug Efird, to testify about prior sexual misconduct by the appellant. Alternatively, Mr. Efird argues that the trial court erred in denying his motion for a continuance, which was requested so he could investigate his brother\u2019s allegations and prepare for cross-examination. We agree with appellant\u2019s first argument, and we reverse and remand for a new trial.\nThe alleged victim in this case was appellant\u2019s former stepdaughter, H.M., who was eleven years old at the time of the trial. Mr. Efird was married to H.M.\u2019s mother for several years before they separated in September 2005. H.M. testified that Mr. Efird had been a father figure to her, and that during the time they lived in the same house he did things that made her uncomfortable.\nSpecifically, H.M. testified that, \u201cHe peed in my mouth a few times and one time it had sperm in it.\u201d She stated that these episodes happened in the bathroom. H.M. further testified that at least thirty to fifty times \u201che stuck his penis in my butt.\u201d H.M. stated that this first happened at her aunt\u2019s house when she was four years old. On the other occasions, Mr. Efird would have anal sex with H.M. in H.M.\u2019s mother\u2019s room, while her mother was at work. H.M. indicated that the sexual abuse continued until she was eight years old. On cross-examination, H.M. testified that appellant never put his penis in her mouth or touched her in her private area in the front.\nAppellant\u2019s half-brother, Doug Efird, testified for the State over appellant\u2019s objection. Doug testified:\nJames Efird did something inappropriate to me. When we were young, James touched me in my genital area. He had me touch him in his genital area and we had oral sex. He had me perform it on him and he performed it on me. This happened in our bedroom. We shared a bedroom. We had separate beds and he would come over and get in my bed with me. This occurred in the early to mid 1990\u2019s. I can\u2019t remember exacdy.\nOn cross-examination, Doug testified:\nI guess I was twelve to thirteen years old when this event happened. There was a one year age difference between myself and my brother. I am now twenty nine years old. It happened approximately seventeen years ago. I can\u2019t recall whether it was voluntary or not.\nOn appeal, Mr. Efird contends that the trial court erred in permitting his half-brother\u2019s testimony because it was inadmissible pursuant to Ark. R. Evid. 404(b), which provides:\nOther Crimes, Wrongs, or Acts. 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.\nInLindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994), the supreme court held that if the introduction of testimony of other crimes, wrongs or acts is independently relevant to the main issue \u2014 relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal \u2014 then evidence of that conduct may be admissible with a cautionary instruction by the court. Thus, if evidence of another crime, wrong, or act is relevant to show that the offense of which the appellant is accused actually occurred and is not introduced merely to prove bad character, it will not be excluded. Id. In the present case, Mr. Efird contends that evidence of his prior sexual acts with his half-brother was not relevant to any material issue and was merely introduced to show his bad character, and thus that the evidence should have been excluded.\nThe admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998). We hold that the trial court abused its discretion in admitting Doug Efird\u2019s testimony.\nThe State argues that the exceptions to Rule 404(b) apply here because Doug\u2019s testimony showed appellant\u2019s intent, plan, motive, preparation, or opportunity to rape or commit sexual indecency with H.M. The State further relies on the \u201cpedophile exception\u201d to Rule 404(b), where the supreme court has approved allowing evidence of 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 Flattery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005). We cannot agree that any 404(b) exceptions are applicable to this case.\nWhen the charge concerns the sexual abuse of children, the supreme court has held that evidence of sexual abuse with children other than the victim is admissible to show motive, intent, or plan pursuant to Ark. R. Evid. 404(b). Parish v. State, 357 Ark. 260, 163 S.W.3d 843 (2004). The rationale for recognizing the \u201cpedophile exception\u201d is that such evidence helps to prove the depraved instinct of the accused. White v. State, 367 Ark. 595, 242 S.W.3d 240 (2006). The basis of the exception is our acceptance of the notion that evidence of sexual acts with children may be shown as that evidence demonstrates a particular proclivity or instinct. Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998). For the \u201cpedophile exception\u201d 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 id. We also require that there be an \u201cintimate relationship\u201d between the perpetrator and the victim of the prior act. Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001). Since the adoption ofRule 404(b), the supreme court has recognized time as a factor in determining the probativeness of evidence of a prior crime. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994).\nIn the instant case, Mr. Efird\u2019s sexual acts with his half-brother that occurred seventeen years ago were too dissimilar in character and temporally removed from the crimes charged to come under any exception to Rule 404(b), including the \u201cpedophile exception,\u201d and only went to prove appellant\u2019s bad character. The testimony of Doug Efird showed that while he and appellant were adolescents of between twelve to fourteen years of age, they engaged in genital touching and oral sex while sharing the same bedroom. Doug could not remember whether or not he participated voluntarily. By contrast, the current charges allege that Mr. Efird, as an adult and father figure with an intimate relationship with H.M., repeatedly forced anal sex on H.M. when she was four to eight years of age. H.M. testified that Mr. Efird never touched her on her \u201cprivate area in the front\u201d and never put his penis in her mouth. And unlike the prior incident with appellant\u2019s half-brother, there was evidence that appellant threatened H.M. and told her not to tell anyone. Given the contrasting circumstances of the charged crimes and alleged prior conduct, we cannot say that the acts between appellant and his half-brother demonstrated any proclivity or instinct relevant to determining Mr. Efird\u2019s guilt in the present case. Such evidence was erroneously admitted and should have been excluded under Rule 404(b).\nThe State alternatively argues, citing Johnson v. State, 337 Ark. 477, 989 S.W.2d 525 (1999), that even if Doug\u2019s testimony was erroneously admitted, the error was harmless because the evidence of guilt was overwhelming and the error was slight. We do not agree. The only two witnesses to testify during the guilt phase of the trial were the victim and appellant\u2019s half-brother. James Efird did not confess to any criminal activity, and the only competent evidence of his guilt was provided by H.M.\u2019s testimony. While the testimony of a rape victim is sufficient to sustain a conviction if believed by the jury, under these circumstances we cannot say that H.M.\u2019s testimony alone constituted overwhelming evidence of appellant\u2019s guilt. Nor was the error slight given the probable prejudicial effect of Doug Efird\u2019s testimony. Therefore, we reverse and remand for a new trial. Because we agree with appellant\u2019s first argument, we need not address his alternative argument that a continuance should have been granted.\nReversed and remanded.\nHart and Miller, JJ., agree.\nWhile the time lapse between events was not in itself sufficient to exclude evidence of the prior conduct, it is significant when coupled with the dissimilarity of the acts and the fact that the prior conduct occurred at a time when appellant was a juvenile.",
        "type": "majority",
        "author": "John B. Robbins, Judge."
      }
    ],
    "attorneys": [
      "W. Ray Nickle, for appellant.",
      "Dustin McDaniel, Att\u2019y Gen., by: Karen Virginia Wallace, Ass\u2019t Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "James Renny EFIRD v. STATE of Arkansas\nCA CR 07-885\n282 S.W.3d 282\nCourt of Appeals of Arkansas\nOpinion delivered April 9, 2008\nW. Ray Nickle, for appellant.\nDustin McDaniel, Att\u2019y Gen., by: Karen Virginia Wallace, Ass\u2019t Att\u2019y Gen., for appellee."
  },
  "file_name": "0110-01",
  "first_page_order": 138,
  "last_page_order": 142
}