Kenneth Waggoner v. State of Arkansas

Cite as 2024 Ark. App. 490
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-23-762

KENNETH WAGGONER Opinion Delivered October 9, 2024

APPELLANT
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
GREENWOOD DISTRICT
V. [NO. 66GCR-22-159]

HONORABLE STEPHEN TABOR,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED

CINDY GRACE THYER, Judge

Kenneth Waggoner was convicted by a Sebastian County jury of one count of second-

degree sexual assault for engaging in sexual contact with another person under the age of

fourteen, in violation of Arkansas Code Annotated section 5-14-125(a)(1)(3) (Repl. 2013).

On appeal, he does not challenge the sufficiency of the evidence supporting his conviction.

Instead, he contends that the circuit court erred in admitting evidence of other incidents of

sexual assault under the “pedophile exception” to Arkansas Rule of Evidence 404(b). We

find no error and affirm.

I. Background

Waggoner is the step-grandfather of the victim in this case, a minor child (MC) who

was between the ages of eight and ten at the time of the alleged offenses. MC’s father,
Johnathan London, was previously married to Waggoner’s daughter, Heather London. MC

would frequently stay at the home of Heather’s sister, Brandi McLennan, while Johnathan

and Heather were married.

Waggoner was arrested in Oklahoma in 2021 after he was alleged to have sexually

assaulted two girls under the age of eighteen. In a statement to police, he admitted that he

had touched both girls by placing his hands under their shirts onto their breasts and had

also touched their vaginal areas. When Johnathan heard from Heather about Waggoner’s

Oklahoma arrest, he asked MC if Waggoner had ever touched her. She immediately said

that he had.

Darrell Miner, a commander with the Criminal Investigations Division of the

Sebastian County Sheriff’s Office, took MC for a forensic interview at Hamilton House. MC

told the interviewer that on four or five occasions while she was spending the night at

Brandi’s house, Waggoner would come into the room where she was sleeping and put his

hand inside her pants under her underwear. MC was between eight and ten years old when

these incidents happened. After watching the interview, Miner spoke to Brandi, who

confirmed that both MC and Waggoner had spent the night at her house at the same time.

Miner then interviewed Waggoner. Waggoner initially denied having touched MC but then

said if he did touch her, it was accidental.

Waggoner was arrested and charged with second-degree sexual assault. The State

subsequently filed a motion in limine stating its intention to elicit testimony under the

“pedophile exception” to Arkansas Rule of Evidence 404(b). Specifically, the motion stated

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that the State wished to introduce the testimony of Police Chief Matthew Hines, who

investigated the sexual-assault allegations in Oklahoma; and Brandi, who alleged that

Waggoner had molested her when she was seven years old.

The circuit court held a hearing on the State’s motion in limine before trial. Brandi

testified that Waggoner had been married to her mother when she was born and lived with

them until she was about eight years old. When Brandi was six or seven years old, she was

home alone when Waggoner entered the room, pulled her panties off, and touched her

vagina. She told her mother about the incident, and Waggoner was arrested and later

convicted for the assault.

Police Chief Matthew Hines of the Savanna Police Department in Oklahoma testified

that he investigated two counts of sexual assault that Waggoner was alleged to have

perpetrated in Oklahoma in 2021. Hines explained that two girls claimed that Waggoner

engaged in “inappropriate touching of the vagina area and the breast area” when they were

between seven and ten years old. Hines subsequently interviewed Waggoner, who at first

denied the allegations but ultimately confessed to having touched both girls on their vaginas

and breasts.

At the end of the hearing, Waggoner acknowledged the pedophile exception to

Arkansas Rule of Evidence 404(b) but argued that the introduction of Brandi’s and Hines’s

testimony would “prejudice [him] to an insurmountable degree.” He therefore argued that

the court should exclude the testimony pursuant to Arkansas Rule of Evidence 403. The

court ruled that it would allow the testimony because of the “similar allegations in all three

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of these cases involving the age of the alleged victims as well as the [fact that the] type of

behavior almost mirror[s] each other.” The court also noted that Waggoner had commented

in his statement to police that if he had touched MC, it was an accident, reasoning that Rule

404(b) “allows testimony regarding other bad acts in the face of the defense that it’s a mistake

or an accident, so it would also be admissible in my view for that reason.” The court thus

granted the State’s motion, noting that it would “certainly offer a limiting instruction at the

appropriate time.” The court did not, however address Waggoner’s argument concerning

Rule 403.

The matter proceeded to trial. Before testimony commenced, Waggoner

unsuccessfully renewed his objection to the State’s use of Rule 404(b) evidence and asked

the court to “reconsider” his argument concerning Rule 403. The court stated that its “ruling

remains the same.”

MC, who was fourteen at the time of the trial, testified that Waggoner, whom she

called Papa Kenny, is the father of her ex-stepmother, Heather. She recalled that when her

father was married to Heather, she would sometimes stay at the home of Heather’s sister,

Brandi. She said she normally slept on a couch in the living room when she spent the night

there. One night, when she was around seven years old, she had fallen asleep on the couch

when Waggoner touched her vagina; she explained that he touched her under her clothes

with his hand. He did the same thing on at least five other occasions, with the last incident

occurring when she was ten. She did not say anything about it to anyone at the time because

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she was scared. She finally told her father after he had learned about Waggoner’s arrest in

the Oklahoma incident, and he asked her if Waggoner had ever done anything to her.

Before the State presented its Rule 404(b) witnesses, the court instructed the jury that

evidence of other alleged crimes or bad acts committed by Waggoner

may not be considered by you to prove the character of Kenneth Waggoner 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 acted similarly or accordingly on the day of the incident. The evidence
is merely offered as evidence of motive, opportunity, intent, plan, knowledge, or
absence of mistake or neglect. Whether any alleged crimes, wrongs, or acts have been
committed is for you to determine.

Brandi then testified that Waggoner molested her when she was six years old. She

said that she was on a couch in her living room when he touched her vagina with his finger

and told her not to tell anyone. She added that he was convicted “of what he did to” her,

and the State introduced, without objection, a certified copy of Waggoner’s 1991 conviction

for first-degree sexual assault.

The State then called Chief Hines. Hines testified that he investigated two sexual-

assault cases involving girls under the age of sixteen. When he interviewed Waggoner in

2021 about the alleged assaults, Waggoner confessed that he had inappropriately touched

the two girls by placing his hand under their shirts and on their breasts and by touching their

vaginal areas.

The State rested, and the jury went on to convict Waggoner of second-degree sexual

assault. He was sentenced to twenty years in the Arkansas Division of Correction. Waggoner

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timely appealed, and he now argues that the circuit court erred in permitting evidence of his

prior bad acts under Rule 404(b).

II. Standard of Review

Waggoner challenges the circuit court’s ruling regarding the introduction of Rule

404(b) evidence. Our standard of review on such matters is well settled. A circuit court has

wide discretion in making evidentiary rulings and will not be reversed absent an abuse of

discretion. Greeno v. State, 2023 Ark. App. 500, at 5, 678 S.W.3d 617, 620 (citing Jackson v.

State, 375 Ark. 321, 340, 290 S.W.3d 574, 587 (2009)).

III. Discussion

Waggoner argues on appeal that the circuit court “erred in admitting evidence of

prior bad acts under the ‘pedophile exception’ to Arkansas Rule of Evidence 404(b) when

the court failed to consider whether the evidence should have been excluded under Arkansas

Rule of Evidence 403.” Specifically, he urges that the court was required to conduct the

balancing test set forth in Rule 403, which provides that “[a]lthough relevant, evidence may

be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” Because the court

“did not engage in any analysis regarding whether the probative value of [the evidence of his

prior bad acts] is substantially outweighed by the danger of unfair prejudice,” he argues that

the court abused its discretion in admitting the evidence of his prior sexual assaults.

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This specific argument, however, is not preserved for appellate review because the

circuit court did not rule on Waggoner’s Rule 403 argument. In Duvall v. State, 2018 Ark.

App. 155, at 9, 544 S.W.3d 106, 112, this court considered a “catchall 403 argument” in

which the appellant, Duvall, asserted that even if the appellate court were to determine that

his alleged prior bad acts were sufficiently similar to his current charges, evidence of previous

rape allegations against him was still unduly prejudicial. This court declined to reach his

arguments “because there is not a clear ruling by the circuit court on whether the probative

value of each witness’s testimony to the State’s case substantially outweighed the danger of

unfair prejudice to him. An appellant must obtain a ruling on whether Rule 404(b) evidence should

have been excluded under Rule 403 to preserve the issue for an appeal.” Duvall, 2018 Ark. App.

155, at 9–10, 544 S.W.3d at 112 (emphasis added); see also Hortenberry v. State, 2017 Ark.

261, at 12–13, 526 S.W.3d 840, 848 (declining to address argument that circuit court failed

to conduct a Rule 403 balancing test before admitting testimony of previous sexual assault

victims because, while appellant raised a Rule 403 challenge to the testimony, he failed to

obtain a ruling from the circuit court); Cluck v. State, 365 Ark. 166, 175, 226 S.W.3d 780,

787 (2006) (refusing to reach a Rule 403 argument because the appellant failed to obtain a

ruling on it from the circuit court); Roberts v. State, 2024 Ark. App. 219, at 8, 686 S.W.3d

896, 901–02 (“An appellant must obtain a ruling on whether Rule 404(b) evidence should

have been excluded under Rule 403 to preserve the issue for an appeal.”); Baumann v. State,

2018 Ark. App. 564, at 14–15, 566 S.W.3d 494, 503 (same).

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The cases on which Waggoner relies do not help him. It is true that in Peebles v. State,

2019 Ark. App. 483, 588 S.W.3d 355, this court reversed the appellant’s conviction because

the circuit court failed to engage in a Rule 403 analysis before admitting photographs of

child pornography found on appellant Peebles’s computer. The conviction was reversed,

however, because the circuit court had erroneously concluded that Rule 403 was inapplicable

during the sentencing phase of a trial. That is, the reversal was premised on a

misinterpretation of the law because Rule 403 is applicable during sentencing.

Waggoner’s citation to Peer v. State, 2020 Ark. App. 181, 598 S.W.3d 59, is likewise

inapposite. In that case, appellant Peer argued that the circuit court did not undertake a Rule

403 analysis regarding the introduction of her prior convictions. This court affirmed,

however, because Peer failed to cite Rule 403 at trial and did not refer to or ask the court to

make a balancing analysis.

Waggoner’s argument on appeal is limited to his contention that the circuit court

erred in failing to conduct the balancing test required by Rule 403.1 Because he failed to get

a ruling on this issue, his argument is not preserved for appeal.

1
Insofar as we consider the question of prejudice, we note that “prejudice is not
presumed on appeal, and an assessment of prejudice must take into account that the
uncorroborated testimony of a minor victim alone is substantial evidence to sustain a
conviction for a sex offense.” Washington v. State, 2024 Ark. App. 134, at 9, 686 S.W.3d 61,
69. Waggoner was convicted of second-degree sexual assault. A person commits this offense
if, being eighteen years of age or older, the person engages in sexual contact with another
person who is less than fourteen years of age. Ark. Code Ann. § 5-14-125(a)(3). Sexual
contact means “[a]n act of sexual gratification involving the touching, directly or through
clothing, of the sex organs, buttocks, or anus of a person or the breast of a female.” Ark.
Code Ann. § 5-14-101(12)(A) (Repl. 2013). Given MC’s direct testimony that Waggoner put

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Affirmed.

HARRISON, C.J., and GRUBER, J., agree.

Knutson Law Firm, by: Gregg A. Knutson, for appellant.

Tim Griffin, Att’y Gen., by: A. Evangeline Bacon, Ass’t Att’y Gen., for appellee.

his hand under her clothes and touched her vagina when she was between the ages of eight
and ten, it would be difficult to conclude that the admission of the State’s Rule 404(b)
evidence unfairly prejudiced Waggoner.

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