Michael Sawyer Hicks v. State of Arkansas

Cite as 2026 Ark. App. 128
ARKANSAS COURT OF APPEALS
DIVISIONS I & IV
No. CR-24-808

MICHAEL SAWYER HICKS Opinion Delivered February 25, 2026

APPELLANT
APPEAL FROM THE ASHLEY
COUNTY CIRCUIT COURT
V. [NO. 02CR-23-211]

STATE OF ARKANSAS HONORABLE ROBERT B. GIBSON III,
APPELLEE JUDGE

REVERSED AND REMANDED

CINDY GRACE THYER, Judge

Michael Sawyer Hicks was convicted by an Ashley County Circuit Court jury of the

second-degree sexual assault of an underage girl, MV. He now appeals that conviction,

arguing that (1) there was insufficient evidence to support his conviction; (2) the circuit court

erred in admitting hearsay evidence under the pedophile exception; and (3) a mistrial should

have been granted. More specifically, he argues that the State failed to present evidence that

the “touching” was for the purpose of sexual gratification; that the circuit court erred in

admitting sentencing orders from two prior no-contest pleas to second-degree sexual assault

and in allowing the police investigator to testify regarding the factual underpinnings of those

pleas; and that the circuit court should have granted a mistrial for allegedly commenting on

his right to remain silent. Because we conclude the investigator’s testimony was inadmissible,

we reverse and remand.
On October 10, 2023, the appellant Michael Hicks pled no contest to two counts of

second-degree sexual assault involving Minor Child 1 (MC1) and Minor Child 2 (MC2) and

received ten years’ probation on each, to run concurrently. Investigator Staci Tumey with

the Arkansas State Police Crimes Against Children Division was the investigator on both

cases.

While those cases were pending, Investigator Tumey began investigating a third

allegation of sexual assault by Hicks involving the alleged victim here, MV. An information

charging Hicks with second-degree sexual assault arising from this investigation was filed on

December 23, 2023. This appeal stems from the second of two trials based on this third

allegation.

On March 26, 2024, the State filed a motion seeking to admit Hicks’s prior no-contest

pleas under Arkansas Rule of Evidence 404(b). Hicks objected, arguing that the State was

attempting to introduce inadmissible character evidence; that the prejudicial nature of that

evidence outweighed any probative value it might have; and that use of his no-contest pleas

in this manner would be a violation of his due-process rights.

A hearing on the motion was held on June 3, and Officer Tumey testified regarding

the similarity of the prior incidents to the current charge. In addition to the arguments

presented in his written objection to the motion, Hicks argued that the State should not be

allowed to introduce evidence of those convictions because they were the result of a no-

contest plea. The court concluded, however, that by pleading no contest, Hicks “had to

acknowledge that the State could meet its burden beyond a reasonable doubt” on those prior

2
similar crimes, and it entered an order admitting evidence of Hicks’s past conduct under the

pedophile exception to Rule 404(b).

A jury trial was held on June 27, 2024. At trial, when the State attempted to introduce

evidence about the prior allegations supporting the no-contest pleas through the testimony

of Investigator Tumey, Hicks objected on hearsay grounds. The State responded that the

court had ruled the evidence admissible under Rule 404(b), but Hicks reiterated that

Investigator Tumey’s testimony would still be hearsay, and only those involved, i.e., the

victims, could testify to those acts under the pedophile exception. Despite Hicks’s argument,

the court allowed the testimony, first finding that it was simply a “summation of the basic

allegations” and that it did not consider it to be hearsay. The court stated, “That’s the basis,

the same basis for the facts that were given in court that created the basis for the convictions,

so I’m going to allow [Investigator Tumey] to testify to it.” Then, in overruling Hicks’s

subsequent hearsay objection the court stated that “the prior allegations come in under the

exception that I noted and they formed a factual basis for the guilty and conviction of guilt

in these charges.” The court later added that it found the prior allegations were admissible

under Rule 404(b) and that, because they formed the basis for his no-contest plea, they had

the indicia of reliability necessary for admission under Arkansas Rule of Evidence 803.

During this trial, the court allowed Hicks to testify why he pled no contest and allowed

defense counsel to explain in closing that a no-contest plea was not an admission or denial

of guilt and why Hicks might have pled no contest. This trial ended in a hung jury.

3
Between the first and second trials, for the first time, the State filed a pretrial motion

to allow Investigator Tumey to testify under Rule 803(24)—the residual hearsay exception—

regarding the factual basis for Hicks’s no-contest pleas. Hicks filed a written objection to the

motion, arguing that, because a no-contest plea is not an admission of guilt, it is not

admissible under the residual hearsay exception. He further argued that the evidence the

State sought to admit failed all three prerequisites for admissibility outlined in Rule 803(24).

Accordingly, he asked that the State’s motion be denied.

This motion was considered during an in-chambers discussion the morning of trial.

At the hearing, defense counsel restated his hearsay objection. After hearing the arguments

of counsel, the court allowed Investigator Tumey to testify to the facts surrounding the prior

convictions. However, unlike the court’s ruling in the first trial, the court limited Hicks’s

cross-examination of Investigator Tumey to the fact that the pleas were no-contest pleas or

to explain to the jury why Hicks agreed to the pleas.

At trial, MV testified that, on the day of the alleged incident, Hicks was watching her

while her mother went to the grocery store. MV stated they were sitting on a couch playing

video games on their phones when Hicks moved closer to her and touched her breast over

her clothing. When MV’s mother returned, he moved away and asked MV not to tell anyone.

MV testified this was the first and only time he touched her.

Investigator Tumey then testified that she investigated two similar prior sexual-assault

allegations involving Hicks. She described when they occurred; the ages of the victims; and

their relationship to Hicks. She testified that she was assigned to both investigations

4
following calls to the child-abuse hotline. Regarding MC1, she learned that Hicks was friends

with MC1’s parents. She also learned that Hicks was alone with MC1 at the back part of the

home when the incident occurred. She relayed that the sexual abuse she investigated

involved sexual contact with MC1’s sex organs outside her clothing. She then testified that

she received a second hotline call about six months later. She learned in this investigation

that Hicks was friends with MC2’s brother and was staying in the home with MC2 and her

parents while he was waiting on a rental house. She detailed that MC2 and Hicks would go

to the store together, watch movies, play video games, and ride four-wheelers around the

home. She stated that the same type of abuse with MC1 was involved with MC2—“the

touching, groping of her breast, and the vaginal area.” She agreed that a common theme

between the two investigations was “game-playing with these little girls.” Following Tumey’s

testimony that Hicks was convicted of second-degree sexual assault in both cases and was

placed on ten years’ probation, the sentencing orders from the prior no-contest pleas were

introduced into evidence.

Hicks testified in his own defense and denied ever touching MV. He explained that

MV’s mother had asked him to watch MV while she went to the store. He claimed he talked

with MV’s mother the entire time she was gone, except for the brief time she was checking

out. Hicks testified that MV did not want him to leave after her mother returned and that

he stayed until the other children returned home from school. He stated that he had been

interested in MV’s mother romantically but that he broke it off when she told him she was

reconnecting with MV’s father.

5
This time, the jury convicted Hicks, and he was sentenced to thirty years in the

Arkansas Division of Correction. This appeal followed.

As stated above, Hicks raises three arguments: (1) there was insufficient evidence to

support his conviction; (2) the circuit court erred in admitting hearsay evidence under the

pedophile exception; and (3) a mistrial should have been granted. Although we find merit

in his second point on appeal, we must first address his sufficiency-of-the-evidence argument

because preservation of an appellant’s right to freedom from double jeopardy requires a

review of the sufficiency of the evidence before a review of trial errors. Lester v. State, 2024

Ark. App. 206, 687 S.W.3d 344.

With regard to his sufficiency argument, Hicks claims the State failed to prove sexual

contact with MV. More specifically, he argues that there was no indication that the brief one-

time touching as alleged by MV was for the purpose of sexual gratification. We disagree.

When reviewing a challenge to the sufficiency of the evidence, we must assess the

evidence in the light most favorable to the State and consider only the evidence that supports

the verdict, whether admitted properly or erroneously. Cuevas-Flores v. State, 2024 Ark. App.

451, 699 S.W.3d 156. We affirm a conviction if substantial evidence exists to support it.

Price v. State, 2019 Ark. 323, 588 S.W.3d 1. Substantial evidence is that which is of sufficient

force and character that it will, with reasonable certainty, compel a conclusion without

resorting to speculation or conjecture. Id. Witness credibility is an issue for the fact-finder,

which may believe all or part of any witness’s testimony and may resolve questions of

6
conflicting testimony and inconsistent evidence. McKisick v. State, 2022 Ark. App. 426, at 4,

653 S.W.3d 839, 843.

Arkansas Code Annotated section 5-14-125 (Supp. 2023) states that a person commits

second-degree sexual assault if the person, being eighteen years of age or older, engages in

sexual contact with another person who is less than fourteen years of age. “Sexual contact”

means an 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 (Supp. 2023). “Sexual gratification” is not defined in the statute, but the Arkansas

Supreme Court has construed the words in accordance with their reasonable and commonly

accepted meanings. DeJohn v. State, 2021 Ark. App. 495, at 3–4, 638 S.W.3d 32, 34. The

State is not required to provide direct proof that an act is done for sexual gratification if it

can be assumed that the desire for sexual gratification is a plausible reason for the act because

sexual gratification is rarely capable of proof by direct evidence and must usually be inferred

from the circumstances. Compton v. State, 2023 Ark. App. 587, at 8, 682 S.W.3d 348, 354.

The jury is free to believe the State’s version of the facts over the defendant’s account, is not

required to abandon common sense, and may draw reasonable inferences from the evidence.

Id.

Here, MV testified that Hicks engaged in conduct, when she was under the age of

fourteen, that would satisfy the definition of “sexual contact.” Importantly, the facts

presented here would permit a jury to infer that “sexual gratification” was a plausible reason

for the conduct. MV testified that Hicks was babysitting her while her mother went to the

7
store; he moved closer to her on the couch while they were playing Roblox on their phones;

he touched her chest area over her clothing for more than a brief period of time; he quickly

withdrew his hand when her mother returned; and he told her not to tell anyone what he

had done. While Hicks denied that any such touching occurred and claimed he was on the

phone with MV’s mother practically the entire time MV’s mother was gone, the jury was not

required to believe his testimony. Thus, when the evidence as presented is viewed in the light

most favorable to the State, there was substantial evidence to support Hicks’s conviction for

second-degree sexual assault.

For his second point on appeal, Hicks argues that the court erred in admitting the

prior sentencing orders and in allowing Investigator Tumey to testify regarding the factual

basis for those no-contest pleas. He asserts that Investigator Tumey’s testimony was

inadmissible hearsay and did not fall within the residual hearsay exception to the hearsay

rule. Hicks’s argument is well taken.

As an initial matter, this court is certainly mindful of the additional trauma that may

be inflicted on victims of crime when navigating our criminal justice system. This is especially

true of victims of sexual abuse regardless of age.1 However, no matter how compelling and

understandable the desire to protect the victims of crime at all costs, especially children, our

1
We note that the State is not required to present Rule 404(b) testimony of other
victims in order to prove its charge of rape. Even standing alone, a rape victim’s testimony
constitutes substantial evidence to support a rape conviction. Wesley v. State, 2026 Ark. App.
74. Thus, the State must weigh the need for such testimony to obtain a conviction against
the harm it might inflict on the prior victims.

8
courts have a duty to ensure that an accused is afforded a fair trial as guaranteed by our state

and federal constitutions.2 As such, we are constrained by our rules of evidence and are

bound by precedent. Both dictate this outcome.

Second, we want to stress the unique nature of the situation before us. Investigator

Tumey’s testimony was elicited under the backdrop of a no-contest plea. Ordinarily, this

evidence would be inadmissible under Rule 410 of the Arkansas Rules of Evidence. That

rule provides:

Evidence of a plea of nolo contendere, whether or not later withdrawn, and of a plea, later
withdrawn, of guilty or admission to the charge, or of an offer to plead to the crime
charged or any other crime, or of statements made in connection with any of the foregoing
pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the
person who made the plea or offer.

(Emphasis added.) Hicks, however, did not specifically mention Rule 410 below, nor has he

sufficiently raised it on appeal. In Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), the

supreme court noted that Arkansas does not recognize the plain-error rule, meaning that the

2
To this end, the Maryland Court of Appeals said it best:

Even though there are sound public policy reasons for limiting a child victim’s
exposure to a potentially traumatizing courtroom experience, we nonetheless must be
faithful to the Constitution’s deep concern for the fundamental rights of the accused.
Although the Supreme Court has recognized that the interest of protecting victims
may triumph over some rights protected by the Confrontation Clause, it also has
concluded that such interests may never outweigh the explicit guarantees of the
Clause, including the “right to meet face to face all those who appear and give evidence
at trial.”

State v. Snowden, 867 A.2d 314, 329 (Md. App. Ct. 2005) (quoting Coy v. Iowa, 487 U.S.
1012, 1019–21 (1988)) (emphasis in original).

9
appellant must bring the alleged error to the attention of the circuit court before it will be

considered on appeal. Moreover, because any basis for reversing a case on appeal should

originate in the arguments advanced by the appellant, not from arguments created by

appellate judges, we cannot reverse on this basis. See Houston v. State, 82 Ark. App. 556, 120

S.W.3d 115 (2003).

As to Hicks’s argument that the court erred in admitting evidence of the prior

allegations under the residual hearsay exception, the State responds that the “pedophile

exception” to Rule 404(b) is controlling. We agree that the similarity between the prior

allegations and MV’s allegations before the jury would likely be the type of evidence to fall

within the purview of the pedophile exception. However, whether the prior incidents were

sufficiently similar to allow for their introduction pursuant to the pedophile exception does

not end the inquiry. Rather, the crux of the issue presented here is the manner in which the

State attempted to get this proof before the jury. The pedophile exception only overcomes a

character-evidence objection, not a hearsay objection. 4 Clifford S. Fishman, Jones on Evidence

§ 20:15 (7th ed. 2003). That is, the mere fact that the evidence falls within the pedophile

exception and, thus, is deemed relevant will not render the evidence automatically admissible

because the pedophile exception does not override the hearsay rules established under the

Arkansas Rules of Evidence. Instead, the rules for relevancy and hearsay operate

independently of each other, and both must be satisfied for evidence to be admissible. That

is, even if evidence is relevant, it may still be excluded if it constitutes inadmissible hearsay.

10
The issue here is that the State did not attempt to introduce the evidence of Hicks’s

“prior bad acts” directly through the testimony of the prior victims or from eyewitnesses to

the acts.3 Instead, the State sought to introduce that evidence through the testimony of

Investigator Tumey. Investigator Tumey’s knowledge of those “prior bad acts” was acquired

through her investigation of the claims of the prior victims, and her knowledge could only

have been obtained from statements made by them to her. Investigator Tumey was not

herself a victim, nor was she in a position to witness any of the prior acts at the time they

occurred.

Arkansas Rule of Evidence 801(c) defines hearsay as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.”4 As such, Investigator Tumey’s testimony clearly falls within

the definition of hearsay. Thus, the issue before us is whether Investigator Tumey’s testimony

3
Admittedly, our courts have allowed testimony from nonvictim witnesses under the
pedophile exception. For example, in Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (2006),
the testimony of a witness who observed concerning conduct involving the defendant and a
child was admitted under the pedophile exception. However, unlike Investigator Tumey’s
testimony, that testimony was based on personal observations and not hearsay. The cases cited
by the dissent, Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992); McGuire v. State, 288
Ark. 388, 706 S.W.2d 360 (1986); and Chappell v. State, 18 Ark. App. 26, 710 S.W.2d 214
(1986), all predate the United States Supreme Court’s decision in Crawford v. Washington,
541 U.S. 36 (2004).
4
An out-of-court statement is not hearsay if it is offered, not to prove the truth of the
matter asserted, but to show the basis of action or course of conduct. Martin v. State, 316
Ark. 715, 875 S.W.2d 81 (1994). As evidenced by the State’s arguments at trial, Investigator
Tumey’s testimony was clearly admitted to prove the truth of the matter asserted and as
substantive evidence of Hicks’s alleged proclivities rather than to show a basis for Hicks’s
actions or course of conduct.

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falls within one of the exceptions to the hearsay rule so that she, rather than the victims or

witnesses, could testify to the factual allegations of the prior acts.

The State argued both below and now on appeal that Investigator Tumey’s testimony

was admissible under Rule 803(24), more commonly referred to as the residual hearsay

exception. Rule 803(24) states as follows:

(24) Other Exceptions. A statement not specifically covered by any of the
foregoing exceptions but having equivalent circumstantial guarantees of
trustworthiness, if the court determines that (i) the statement is offered as evidence
of a material fact; (ii) the statement is more probative on the point for which it is
offered than any other evidence which the proponent can procure through reasonable
efforts; and (iii) the general purposes of these rules and the interests of justice will
best be served by admission of the statement into evidence. However, a statement may
not be admitted under this exception unless the proponent of it makes known to the
adverse party sufficiently in advance to provide the adverse party with a fair
opportunity to prepare to meet it, his intention to offer the statement and the
particulars of it, including the name and address of the declarant.

We hold that Investigator Tumey’s testimony in this case fails the second requirement

for admissibility under Rule 803(24): whether the statement is more probative on the point

for which it is offered than any other evidence the proponent can procure through

reasonable efforts.5 Obviously here, the testimony of the victims themselves would be more

probative than the testimony of the investigator, who obtained the information from the

5
Because we find that the evidence fails to satisfy the second prerequisite to
admissibility, we do not address the other two.

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victims. The State in this instance made no attempt to explain why it could not procure their

testimony through reasonable efforts.6

Moreover, this provision was not intended to throw a door wide open for the entry

of judicially created exceptions to the hearsay rule. To the contrary, this exception is to be

narrowly construed.7 See Hill v. Brown, 283 Ark. 185, 188, 672 S.W.2d 330, 332 (1984). Our

6
The dissent contends Investigator Tumey’s testimony is the most probative because
she was the only person who could testify as to the similarity of all three incidents. We
disagree. The similarity of the three incidents is only required for the circuit court to
determine the relevance and admissibility of the evidence under the pedophile exception. It
is not, however, an element of the sexual-assault charge the State sought to prove against the
appellant. The relevant sexual-assault statute (Arkansas Code Annotated section 5-14-125)
only requires proof that the appellant is eighteen years of age or older and that he engaged
in sexual contact with a child under the age of fourteen. Thus, it is not the role or duty of
the investigator to establish the similarities among the incidents for the jury. Second, the
victims are the proper persons to testify about their experiences, subject to cross-examination,
and it is for the jury to determine whether the evidence is credible and whether it
demonstrates the defendant’s proclivity. Finally, unlike the direct testimony of a Rule 404(b)
victim who can be cross-examined on the truthfulness and veracity of his or her testimony,
the testimony of a nonvictim or other witness without direct personal knowledge of the
incidents in question who merely attempts to summarize the Rule 404(b) victim’s testimony
is not subject to such cross-examination, and as such, the witness’s testimony would likely
run afoul of the Sixth Amendment’s Confrontation Clause.
7
Congress’s intent for this provision to be narrowly construed is made plain by this
paragraph in the report of the Senate Advisory Committee:

It is intended that the residual hearsay exceptions will be used very rarely, and only in
exceptional circumstances. The committee does not intend to establish a broad license
for trial judges to admit hearsay statements that do not fall within one of the other
exceptions contained in rules 803 and 804(b). The residual exceptions are not meant
to authorize major judicial revisions of the hearsay rule, including its present
exceptions. Such major revisions are best accomplished by legislative action. It is
intended that in any case in which evidence is sought to be admitted under these
subsections, the trial judge will exercise no less care, reflection and caution than the

13
supreme court carefully noted in Hill that all the common-law exceptions to the hearsay rule

are based either on necessity or on some compelling reason for attaching more than average

credibility to the hearsay, and any new exception must have circumstantial guarantees of

trustworthiness equivalent to those supporting the common-law exceptions.

Here, our supreme court has set forth those situations in which evidence that is

technically hearsay will be deemed admissible. See Ark. R. Evid. 803 & 804. It has even

specifically identified circumstances in which child hearsay is permitted at trial. See, e.g., Ark.

R. Evid. 803(25) & 803(b)(6) & (7). Yet it has not seen fit to include an exception that would

generally allow investigators, social workers, parents, or other parties to testify in place of

victims of sexual or physical abuse. This, despite its awareness of the trauma that requiring a

victim to testify regarding his or her abuse could cause; and not to mention the

Confrontation Clause problems allowing such testimony would necessarily create. There is

simply no overriding necessity to allow an investigator to testify in this situation, and our

supreme court has not seen fit to permit it. If we were to allow such testimony to be admitted

under the residual hearsay rule, we would not be narrowly construing the exception.

Moreover, were we to recognize an overriding necessity as tacitly argued by the dissent, we

would be placing this new exception in direct conflict with the Sixth Amendment’s

courts did under the common law in establishing the now-recognized exceptions to
the hearsay rule.

S. Rep. No. 93–1277, 93d Cong., 2d Sess. 1, 20, reprinted in 1974 U.S. Code Cong. & Ad.
News 7051, 7066 (emphasis added).

14
requirement that criminal defendants be allowed to confront the witnesses against them in

a criminal trial.

The State, nevertheless, asserts that the prior allegations of sexual abuse testified to

by Investigator Tumey have a circumstantial guarantee of trustworthiness because those

allegations formed the factual basis of his prior convictions and because Hicks agreed at the

plea hearing that a jury could convict him if those allegations were proved at trial. It is critical

to our analysis that Hicks’s statements were made as part of a no-contest plea, not a guilty

plea. A plea of nolo contendere is one by which the defendant does not contest or admit

guilt. Martin v. State, 2015 Ark. 147, at 4 n.2, 460 S.W.3d 289, 292 n.2 (citing Black’s Law

Dictionary 1269 (9th ed. 2009); Patterson v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995)

(describing the plea as one that may be entered with leave of court to a criminal indictment

by which the defendant does not admit or deny the charges, though a fine or sentence may

be imposed pursuant to it)); see also North Carolina v. Alford 400 U.S. 25, 35 n.8 (1970)

(“Throughout its history . . . the plea of nolo contendere has been viewed not as an express

admission of guilt but as a consent by the defendant that he may be punished as if he were

guilty and a prayer for leniency.”). Thus, as the record indicates, Hicks did not admit the

truthfulness of the allegations; rather, he admitted only that, if the victims’ allegations were

presented to a jury, a jury could find him guilty. As such, there is no circumstantial guarantee

of trustworthiness as required under the residual hearsay exception. Accordingly, we do not

agree with the State that Hicks’s statements at the no-contest plea hearing afforded or imbued

15
the evidence with the degree of trustworthiness necessary for its admission under the residual

hearsay exception.

Nor do we find that the admission of this evidence was harmless error. It is well

settled that, even when a circuit court errs in admitting evidence, we will affirm the

conviction and deem the error harmless if there is overwhelming evidence of guilt and the

error is slight. Rodriguez v. State, 372 Ark. 335, 276 S.W.3d 208 (2008). To determine if the

error is slight, we look at whether the defendant was prejudiced by the erroneously admitted

evidence. Id. Prejudice is not presumed, and this court will not reverse a conviction absent a

showing of prejudice by the defendant. Id. When the erroneously admitted evidence is

merely cumulative, there is no prejudice, and a conviction will not be reversed for harmless

error in the admission of evidence. Id. The evidence here was not merely cumulative—the

specific evidence explaining the prior incidents came from Investigator Tumey’s inadmissible

hearsay testimony. As such, we do not consider the introduction of the evidence to be

harmless.

Because we are reversing this case and remanding it for a new trial, we do not address

the remaining issues because they will be decided anew in any retrial.

For the reasons set forth above, we reverse and remand.

Reversed and remanded.

ABRAMSON, VIRDEN, HARRISON, and TUCKER, JJ., agree.

BARRETT, J., dissents.

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STEPHANIE POTTER BARRETT, Judge, dissenting. The circuit court acted well within

its discretion in admitting Investigator Tumey’s testimony under Arkansas Rule of Evidence

803(24) and the pedophile exception to Arkansas Rule of Evidence 404(b). The pedophile

exception serves the critical purpose of allowing prosecutors to introduce evidence of a

defendant’s depraved sexual instinct toward children, which is uniquely probative in child

sexual-abuse cases where the defendant’s specific proclivity and pattern of conduct with

vulnerable victims is directly relevant to proving the charged offense. The majority’s opinion

departs from settled precedent governing the admissibility of evidence in these cases

involving sexual abuse of children and, in doing so, imposes an unnecessarily restrictive

framework that undervalues the probative force of the pedophile exception. This approach

not only misconstrues our evidentiary rules but also risks discouraging the presentation of

evidence that is often essential to establishing the truth in cases where serial abuse, by its

inherent nature, occurs almost exclusively outside the presence of witnesses. Therefore, I

must dissent.

The residual hearsay exception under Arkansas Rule of Evidence 803(24) affords trial

courts limited flexibility to admit otherwise inadmissible hearsay when the evidence bears

sufficient guarantees of trustworthiness and is necessary to the presentation of the case. See

Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987). Although the exception must be

narrowly construed, it is not to be rendered a nullity. The Arkansas Supreme Court has

stated that we will not reverse a circuit court’s ruling on a hearsay question unless the

appellant can demonstrate an abuse of discretion. Martin v. State, 346 Ark. 198, 57 S.W.3d
136 (2001); Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000); Bragg v. State, 328 Ark. 613,

946 S.W.2d 654 (1997); Flores v. State, 348 Ark. 28, 38, 69 S.W.3d 864, 870 (2002).

The majority quotes the cautionary language that the residual hearsay exception “was

not intended to throw open a wide door for the entry of judicially created exceptions to the

hearsay rule” and is instead “to be narrowly construed.” See Hill v. Brown, 283 Ark. 185, 188,

672 S.W.2d 330, 332 (1984). The accompanying directive from the Senate Advisory

Committee states the exception is to be employed “very rarely, and only in exceptional

circumstances.” Id. at 188–89, 672 S.W.3d at 332. I would be remiss if I did not observe that

few circumstances could be more exceptional than the protection of this state’s minor

children from being retraumatized by the judicial process itself—a consequence that today’s

decision unnecessarily permits.

I am deeply concerned that the majority’s holding effectively requires minor victims

of sexual abuse to testify in order for prior convictions to be admissible under the pedophile

exception. Arkansas courts have long recognized the unique vulnerability of child victims

and have approved safeguards designed to protect them from psychological harm, including

videotaped depositions, out-of-court statements, and testimony by investigators regarding a

child’s disclosures. See, e.g., Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992); McGuire

v. State, 288 Ark. 388, 706 S.W.2d 360 (1986); Chappell v. State, 18 Ark. App. 26, 710 S.W.2d

214 (1986).1 These protections reflect a deliberate effort to balance defendants’ rights with

1
While the majority is correct these cases were decided prior to Crawford v. Washington,
541 U.S. 36 (2004), its statement ignores the fact these cases remain instructive and

18
the need to protect children and encourage the reporting of sexual abuse. By narrowing the

availability of Rule 803(24) in this context, the majority does a disservice to survivors of

sexual abuse in Arkansas. Its approach risks chilling reports of abuse and undermining the

State’s ability to prosecute serial offenders—outcomes plainly inconsistent with precedent,

public policy, and the rules of evidence.

The majority asserts that “[t]he issue of whether the prior incidents were sufficiently

similar to allow for their introduction pursuant to the pedophile exception is not before us”

and that the only question presented is the “manner in which the State attempted to get this

proof before the jury.” I respectfully disagree. While it is correct that the pedophile exception

does not override the hearsay rules, it does not follow that similarity and context can be

disregarded in evaluating admissibility under Rule 803(24). The majority seems to conflate

the circuit court’s function in determining admissibility with the jury’s fact-finder role. It was

the circuit court, not the jury, that determined the prior convictions were sufficiently similar

to be admissible under Arkansas Rule of Evidence 404(b)’s pedophile exception. That legal

determination was made before the evidence was presented. The jury was not asked to decide

precedential. Crawford reoriented the Confrontation Clause analysis by rejecting the
reliability framework of Ohio v. Roberts, 448 U.S. 56 (1980), and adopting a testimonial-based
approach, but it did not abrogate every pre-Crawford decision touching upon hearsay or
confrontation concerns. To the extent earlier cases addressed evidentiary principles,
admissibility under recognized exceptions, or procedural preservation issues independent of
the Roberts reliability test, they retain precedential force and value. Importantly, those
decisions have not been expressly overruled or given negative treatment with respect to their
impact on the Confrontation Clause. Accordingly, they remain binding authority unless and
until expressly displaced, and they continue to inform the application of evidentiary rules in
a manner consistent with Crawford’s framework.

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whether the pedophile exception applied, nor was it tasked with ruling on admissibility.

However, once the circuit court determined the evidence met the requirements of Rule

404(b), the jury was entitled to hear the limited testimony needed for context. Investigator

Tumey’s testimony explained the nature of the prior bad acts so the jury could understand

why those facts were relevant and could determine what weight should be given to them.

Evidence admitted under the pedophile exception serves a distinct and narrowly defined

purpose—to show proclivity toward a specific class of victims—and without contextual

testimony, the jury would be left with bare convictions devoid of meaning or, worse,

confused as to their permissible use. Investigator Tumey’s testimony did not invite the jury

to make an admissibility determination; it provided the necessary context for the jury to

evaluate the evidence the court had already deemed admissible.

While relevancy and hearsay are distinct concepts, they do not operate in isolation.

The rationale for recognizing the pedophile exception is that such evidence helps to prove

the depraved instinct of the accused. Hamm v. State, 365 Ark. 647, 652, 232 S.W.3d 463,

468 (2006). The basis of the pedophile exception to Rule 404(b) 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. Id. For the pedophile exception to apply,

there must be a sufficient degree of similarity between the evidence to be introduced and the

sexual conduct of the defendant. Id. When evidence is admitted under the pedophile

exception, the prosecution may introduce testimony about the specific circumstances and

details of prior sexual abuse. In Woods v. State, the court permitted evidence of the

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defendant’s prior child-molestation conviction under the pedophile exception, even though

the conviction occurred fifteen years before trial. 2013 Ark. App. 739. The rationale is that

“such evidence helps to prove the depraved sexual instinct of the accused” and is “particularly

probative when it involves, as here, the same victim and the same course of conduct.”

Davidson v. State, 363 Ark. 86, 1 n.1, 210 S.W.3d 887, 887 n.1 (2005). As noted in George v.

State, “unlike a Rule 404(b) prior conviction, a prior conviction admitted pursuant to Rule

609(a) for impeachment purposes may not include collateral details and circumstances

surrounding the conviction.” 306 Ark. 360, 374, 813 S.W.2d 792, 800 (1991) (Dudley, J.,

dissenting) (supplemental opinion on denial of rehearing). This means that when a

conviction is admitted solely for impeachment under Rule 609, the jury should not hear

extensive contextual details about the underlying facts of the prior offense. However, when

the pedophile exception applies, courts permit testimony regarding the specific acts and

circumstances of prior sexual conduct with children because this evidence serves the

substantive purpose of demonstrating the defendant’s propensity for such conduct with

minors. Ralston v. State, 2019 Ark. App. 175 (2019).

While the majority disagrees that the jury can hear contextual information regarding

prior convictions, it further argues that even if the evidence was admissible under Rule

404(b), it is not allowed in the form of hearsay under the exception to hearsay, Rule 803(24).

The majority reasons that Officer Tumey’s testimony is not the most probative evidence and

that the testimony of child victims themselves is the most probative. The circuit court must

determine that the testimony bore sufficient circumstantial guarantees of trustworthiness,

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was offered to establish a material fact, and was more probative on the point of similarity

than any other evidence the State could reasonably procure to be admissible under Rule

803(24). In this case, the circuit court acted well within its discretion in finding that Tumey’s

testimony met all three of these factors. Regarding the majority’s position on the most

probative evidence, Tumey investigated all three offenses. While each minor victim could

testify regarding his or her individual experience, none could testify to the similarities among

the offenses. Tumey was the only witness capable of providing a comprehensive, comparative

account of the victims’ ages, Hicks’s role as a trusted family friend and babysitter, his

grooming behavior through child-centered activities, and the nature of the sexual contact.

Requiring the State to present individual victim testimony in place of the investigator would

not yield more probative evidence on similarity and context; rather, it would needlessly

fragment the proof and impose a requirement that the pedophile exception to Rule 404(b)

does not demand—namely, that prior convictions be established through the testimony of

the victims themselves.

Additionally, the majority’s reliance on Hill, 283 Ark. 185, 672 S.W.2d 330, to reject

admissibility is misplaced. Hill does not prohibit admission under Rule 803(24); it requires

that the hearsay bear circumstantial guarantees of trustworthiness equivalent to those

underlying recognized exceptions. That requirement is satisfied here. Investigator Tumey’s

testimony concerned prior sexual offenses that had already resulted in final judgments of

conviction. The factual bases for those convictions were presented in formal judicial

proceedings, subjected to the safeguards attendant to criminal adjudication, and

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memorialized in sentencing orders entered by a court of competent jurisdiction. Those

circumstances provide a far stronger guarantee of trustworthiness than many statements

routinely admitted under traditional hearsay exceptions. To accept the majority’s

interpretation of Hill would render Rule 803(24) largely ineffective in cases involving prior

adjudicated conduct, notwithstanding the rule’s express recognition that reliability may arise

from circumstances other than live testimony. Here, the existence of multiple prior

convictions involving substantially similar conduct is itself a compelling circumstantial

guarantee of trustworthiness. The circuit court properly recognized that reality, and its ruling

was well within the discretion Hill preserves rather than restricts.

The majority’s characterization of Investigator Tumey’s testimony as wholly derivative

of victim statements is also incomplete. Tumey interviewed Hicks during the previous

investigations underlying the prior convictions, and portions of her testimony were based on

Hicks’s own statements. Statements by a party-opponent are expressly excluded from the

definition of hearsay under Arkansas Rule of Evidence 801(d)(2)(i). In addition, her

testimony reflected her personal observations and investigative findings made in the course

of her duties as the investigating officer. The majority attempts to distinguish Hamm, 365

Ark. 647, 232 S.W.3d 463, by noting that the witness in that case testified on the basis of

personal observations rather than hearsay. That distinction does not withstand scrutiny

when applied to the record before us. As stated, Investigator Tumey’s testimony included

her own investigative observations and Hicks’s admissions, which are not hearsay. Moreover,

law enforcement testimony often necessarily synthesizes observations, interviews, and

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documentary evidence to explain patterns and similarities among offenses. The presence of

some hearsay components does not render such testimony inadmissible in its entirety,

particularly where, as here, the circuit court carefully limited the testimony to facts relevant

to similarity and found it admissible under Rule 803(24). Therefore, Hamm supports, rather

than undermines, the circuit court’s ruling.

The majority suggests that permitting Investigator Tumey’s testimony in lieu of live

testimony from the prior victims “would likely run afoul of the Sixth Amendment’s

Confrontation Clause.” Respectfully, this argument is misplaced as well. Hicks was already

adjudicated guilty of the prior offenses underlying Investigator Tumey’s testimony. The fact

that those convictions resulted from no-contest pleas does not alter their legal effect as final

judgments of conviction. A plea of nolo contendere permits entry of judgment and

imposition of sentence, and once judgment is entered, the defendant stands convicted of the

offense. See Swift v. State, 2018 Ark. 74, 540 S.W.3d 288. The Confrontation Clause protects

a defendant’s right to confront witnesses who bear testimony against him concerning the

charged offense—not to relitigate the factual basis of prior final convictions that are

introduced for a limited evidentiary purpose.

Investigator Tumey was not presented as a surrogate witness to prove the elements of

the charged sexual assault. Her testimony was offered solely to explain the context and

similarity of Hicks’s prior adjudicated offenses. The jury was not asked to determine whether

Hicks committed those prior acts; that determination had already been made by a court of

competent jurisdiction. Accordingly, the confrontational concerns raised by the majority are

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misplaced. To accept the majority’s reasoning would effectively require the State to recall

minor victims of sexual abuse—sometimes years after the fact—not to prove the defendant’s

guilt anew, but to reconstruct the factual bases of convictions already finalized, despite the

pedophile exception’s express purpose of permitting prior convictions to be introduced to

demonstrate a pattern of behavior and a proclivity for a particular class of victims. Such a

requirement finds no support in the Confrontation Clause and runs counter to both

precedent and public policy. The Sixth Amendment does not compel the retraumatization

of child victims in order to admit evidence of prior adjudicated conduct for a narrow

evidentiary purpose. The circuit court properly balanced these considerations, and its ruling

does not implicate the Confrontation Clause.

The majority’s harmless-error analysis rests on the faulty premise that Investigator

Tumey’s testimony was the sole means by which the jury learned of the prior incidents. That

premise ignores the fact that the prior sentencing orders themselves were independently

admissible and would have been introduced regardless of Investigator Tumey’s testimony.

Absent that testimony, the sentencing orders would have come into evidence without

contextual detail—precisely the circumstance the law contemplates when prior convictions

are admitted for limited purposes. Any alleged error, therefore, did not inject otherwise

inadmissible evidence into the case; at most, it supplied background to convictions the jury

was already entitled to consider in determining what weight should be given to it. Under

these circumstances, the testimony was, by definition, cumulative of properly admitted

25
evidence, and its admission cannot reasonably be said to have prejudiced the defendant or

affected the verdict.

I also write to express concern with the majority’s inclusion of Arkansas Rule of

Evidence 410. Neither party argued the applicability of Rule 410 below or on appeal, and

the issue was not briefed, preserved, or otherwise presented for our review. By addressing

Rule 410 sua sponte, the majority ventures beyond the resolution of the case before it and

into the realm of advisory-opinion making. Our courts have long held that the appellate

review is limited to issues actually raised and developed by the parties and that issuing

advisory opinions on hypothetical or unargued questions is strictly prohibited. See Potter v.

City of Tontitown, 371 Ark. 200, 205, 264 S.W.3d 473, 478 (2007). The inclusion of Rule

410 in the majority’s analysis does nothing to resolve the issues properly before us and

instead risks creating confusion in an area of the law that was neither contested nor necessary

to the disposition of this appeal.

The majority’s decision today does more than misapply the law—it risks inflicting real

and lasting harm on survivors of abuse of any form. By erecting heightened barriers to

admissibility and discounting evidence that our precedent has long recognized as probative,

the majority sends a troubling message to victims whose credibility already faces unjust

scrutiny. The law should not operate in a manner that silences victims, especially children,

from seeking justice. Because the majority’s holding undermines those principles and

threatens to erode the protections our jurisprudence has afforded to survivors, I must

dissent.

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Vicki Lucas, for appellant.

Tim Griffin, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.

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