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                 SUPREME COURT OF ARKANSAS
                                        No.   CR-13-850

TRACY DEAN JEFFRIES                                Opinion Delivered   May 22, 2014
                                APPELLANT
                                                   APPEAL FROM THE HOT SPRING
V.                                                 COUNTY CIRCUIT COURT
                                                   [NO. 30CR-12-170-1]

STATE OF ARKANSAS                                  HONORABLE CHRIS E WILLIAMS,
                                   APPELLEE        JUDGE

                                                   AFFIRMED.


                           PAUL E. DANIELSON, Associate Justice


       Appellant Tracy Dean Jeffries appeals his conviction of two counts of rape and the two

consecutive life sentences he received as a result of the conviction. Jeffries raises three points

on appeal: (1) the circuit court erred by denying his motion for directed verdict; (2) the State’s

burden of proof was impermissibly lowered; and (3) the circuit court erred by not excluding

certain evidence pursuant to Rule 404(b) of the Arkansas Rules of Evidence. After reviewing

the record, we find no error and affirm.

       Z.B., who was ten years old at the time of trial, testified that he was friends with some

of Jeffries’s family, particularly Jeffries’s grandson, D.J. Z.B. would often spend the night with

D.J. and others at Jeffries’s residence. Z.B. recalled that, on several occasions, Jeffries would

suck Z.B.’s penis while he was there visiting. Z.B. would wake up in Jeffries’s room, and

Jeffries would be sucking his penis. Z.B. testified that, on one occasion, Jeffries anally raped
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him and on another, Jeffries tried to make Z.B. suck Jeffries’s penis, but Z.B. threw up

making the attempt. Z.B. never reported to anyone what Jeffries was doing to him because

he was scared and because Jeffries had told him that something bad would happen if he told.

       While Z.B.’s parents considered Jeffries a good friend of their family, Robert Moore,

who was Z.B.’s soon-to-be stepfather at the time of trial, testified that he grew suspicious of

Jeffries when he found text messages from Jeffries to Moore’s eleven-year-old daughter and

when Jeffries began to talk inappropriately about other young girls. Moore discussed this

suspicion with Z.B.’s mother, Dathena Roots. Roots then approached Z.B. and asked him

if Jeffries had ever done anything to make him uncomfortable. Roots testified that Z.B.’s eyes

grew teary, and he disclosed what Jeffries had been doing. Roots immediately reported it to

the authorities.

       On July 6, 2012, the State charged Jeffries by felony information with two counts of

rape, in violation of Arkansas Code Annotated section 5-14-103, based on the allegation that

he had engaged in sexual intercourse or deviate sexual activity with a person less than fourteen

years of age by committing oral sex on a juvenile and by committing anal sex on a juvenile.

Prior to trial, Jeffries filed a motion in limine, arguing to exclude evidence of prior

convictions, his prior sex-offender status, and any mention of prior criminal history. The

State then moved to admit certain evidence pursuant to the pedophile exception. The State

argued that testimony from D.J., Jeffries’s minor grandson, as well as testimony from an older

niece and nephew of Jeffries, C.C. and G.B., would illustrate Jeffries’s proclivity to engage in

similar acts of sexual activity with children and, therefore, should be admissible. Following


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a hearing, the circuit court found that the testimony of D.J., C.C., and G.B. would be

admissible regarding their allegations of Jeffries’s prior sexual acts with them.

       On March 13, 2013, the case proceeded to trial. At the conclusion of the State’s case-

in-chief, Jeffries moved for directed verdict, which was denied. Jeffries did not present any

witnesses and rested his case.1 At the conclusion of the trial, the jury found Jeffries guilty on

both counts of rape and sentenced him to life imprisonment for each count to be served

consecutively. The circuit court subsequently entered a judgment and commitment order

reflecting the jury’s conviction and sentence. Jeffries timely filed a notice of appeal and now

brings his appeal from the circuit court’s order.

       Jeffries contends that the circuit court erred in denying his motion for directed verdict

on the charges of rape. On appeal, we treat a motion for directed verdict as a challenge to

the sufficiency of the evidence. See Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257. In

reviewing a challenge to the sufficiency of the evidence, this court determines whether the

verdict is supported by substantial evidence, direct or circumstantial. See id. Substantial

evidence is evidence forceful enough to compel a conclusion one way or the other beyond

suspicion or conjecture. See id. This court views the evidence in the light most favorable to

the verdict, and only evidence supporting the verdict will be considered. See id.



       1
        Jeffries did not renew his motion for a directed verdict after resting his case.
However, as applicable here, renewal of a directed-verdict motion is not required to
preserve a sufficiency challenge on appeal when the defense rests without presenting any
evidence. See Williamson v. State, 2009 Ark. 568, 350 S.W.3d 787.



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       A person commits rape if he or she engages in sexual intercourse or deviate sexual

activity with another person who is less than fourteen (14) years of age. See Ark. Code Ann.

§ 5-14-103(a)(3)(A) (Repl. 2013). “Sexual intercourse” means “penetration, however slight,

of the labia majora by a penis.” Ark. Code Ann. § 5-14-101(11) (Repl. 2013). “Deviate

sexual activity” is defined as “any act of sexual gratification” involving “[t]he penetration,

however slight, of the anus or mouth of a person by the penis of another person.” Ark. Code

Ann. § 5-14-101(1)(A) (Repl. 2013).

       As previously noted, the victim here, Z.B., testified that Jeffries forced him to submit

to oral sex on several occasions and had also penetrated him anally. In addition, the jury heard

testimony from Jeffries’s minor grandson, as well as Jeffries’s older niece and nephew, that

Jeffries had performed similar acts on them and in a similar fashion. Additionally, D.J. testified

that he had seen Z.B. alone in the bedroom with Jeffries one night and that Jeffries was doing

something similar to Z.B. as Jeffries had done to him; although, D.J. did admit that because

it was dark in the room, he could not see fully what they were doing.

       While Jeffries argues that Z.B. was not old enough to provide credible testimony to

constitute substantial evidence, the argument is not well taken. First, Jeffries never challenged

the victim’s competency to testify at trial. Furthermore, this court has repeatedly held that

a rape victim’s uncorroborated testimony describing penetration may constitute substantial

evidence to sustain a conviction of rape, even when the victim is a child. See Breeden v. State,

2013 Ark. 145, ___ S.W.3d ___; see also Jones v. State, 300 Ark. 565, 780 S.W.2d 556 (1989).

A rape victim’s testimony need not be corroborated, and scientific evidence is not required.


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See Breeden, 2013 Ark. 145, ___ S.W. 3d ___. Moreover, it is the function of the jury, and

not the reviewing court, to evaluate the credibility of witnesses and to resolve any

inconsistencies in the evidence. See id. Substantial evidence was presented to the jury in the

instant case to support Jeffries’s convictions of rape, and we affirm.

       For his second point on appeal, Jeffries argues that he was deprived of a fair trial

because the State lowered the required burden of proof during voir dire. The State avers that

this argument has no merit because the circuit court did not abuse its discretion in

conducting voir dire and the jury was ultimately instructed with a correct statement of the

State’s burden. We agree with the State.

       The course and conduct of voir dire examination of the veniremen is primarily within

the circuit court’s discretion and an appellant must show that the court abused that

discretion. See Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993). This court will presume

that the jury followed the court’s instruction on the proper burden of proof. See id.

       A review of the voir dire proceedings reveals that the circuit court did not entertain

all of Jeffries’s objections to comments by the State relating to the burden of proof.

However, the circuit court did admonish the jury to disregard one question presented by the

State when the court believed that the State had not correctly phrased the proper burden.

It also appears that the circuit court had to keep Jeffries’s counsel from deviating from the

correct burden in his statements to the jury. The circuit court interjected and gave the

following instruction to the venire members:

       There are elements that I will read to you of each one of these offenses. Those


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       elements are mandatory for the State to prove beyond a reasonable doubt. Those
       elements are presented to you in facts. You will receive the facts from the witness
       stand and exhibits that are introduced into evidence per my instructions. You will
       apply those facts to the elements of the crime and decide from there whether the State
       has proved beyond a reasonable doubt. I do not want you confused by the arguments
       made in voir dire by the attorneys.

       Additionally, at the close of the case, the empaneled jurors were more specifically

instructed before deliberations. The court read instructions to the jury on the specific

charges, and the jury was informed that the State had to prove each element of the offense

charged beyond a reasonable doubt. One of the instructions defined reasonable doubt. The

instructions read to the jury had been first reviewed by both the State and by Jeffries’s

counsel, and there were no objections. We cannot say after our review of the record that

the circuit court abused its discretion in how it conducted voir dire, or that the State was

allowed to lower its burden of proof.

       Lastly, Jeffries argues that the testimony of D.J., C.C., and G.B. should have been

excluded because it was irrelevant as to his guilt or innocence in the instant case, as well as

highly prejudicial. The State argues, as it did below, that the evidence was admissible under

the pedophile exception to Rule 404(b) of the Arkansas Rules of Evidence. Jeffries provides

no argument that the pedophile exception did not apply to the evidence. We find no error

in the circuit court’s admission of the testimony.

       This court’s precedent on the pedophile exception to Rule 404(b) is as follows:

               The admission or rejection of evidence under Rule 404(b) is within the sound
       discretion of the circuit court, and it will not be reversed absent a manifest abuse of
       discretion. E.g., Strong v. State, 372 Ark. 404, 277 S.W.3d 159 (2008). According to
       Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove


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       the character of a person in order to show that he acted in conformity therewith.”
       Such evidence is permissible for other purposes, “such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
       accident.” Ark. R. Evid. 404(b). This court’s precedent has recognized a “pedophile
       exception” to this rule, whereby evidence of similar acts with the same or other
       children is allowed to show a proclivity for a specific act with a person or class of
       persons with whom the defendant has an intimate relationship. E.g., Flanery v. State,
       362 Ark. 311, 208 S.W.3d 187 (2005). For the pedophile exception 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. E.g., White v. State, 367 Ark.
       595, 242 S.W.3d 240 (2006). There must also be an “intimate relationship” between
       the perpetrator and the victim of the prior act. Id.

Hendrix v. State, 2011 Ark. 122, at 7-8. The rationale for the pedophile exception is that

such evidence helps to prove the depraved sexual instinct of the accused. See Flanery v. State,

362 Ark. 311, 208 S.W.3d 187 (2005); Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947

(1994). Evidence admitted pursuant to Rule 404(b) must not be too separated in time,

making the evidence unduly remote. See Nelson v. State, 365 Ark. 314, 229 S.W.3d 35

(2006). The circuit court is given sound discretion over the matter of remoteness and will

be overturned only when it is clear that the questioned evidence has no connection with any

issue in the present case. See id.

       As previously noted, D.J., C.C., and G.B. all testified that Jeffries had been sexually

inappropriate with them as minors when they were in his care. Both D.J. and G.B. testified

that Jeffries would force oral sex on them, and D.J. testified that Jeffries also raped him anally.

D.J. stated that the rapes would occur during both the day and the night, but that nobody

else would be home when it occurred during the day. G.B. testified that every time he was

raped, he would be asleep and wake up as Jeffries was performing oral sex on him against his



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will. C.C. testified that she had also been asleep when Jeffries took advantage of her. She

stated that she awoke to Jeffries squeezing her breasts hard and digitally penetrating her

vagina. This evidence not only illustrates Jeffries’s depraved sexual instinct for minors, but

also demonstrates his method for finding the opportunity to make sexual contact with them.

       Clearly, the evidence is relevant and falls within the pedophile exception to Rule

404(b). Moreover, Jeffries failed to demonstrate error pursuant to Rule 403 because the

probative value of establishing similarities between the rapes of D.J., G.B., and C.C. with that

of the victim here, Z.B., outweighed any alleged prejudice. Therefore, we defer to the

circuit court’s broad discretion, and we cannot say it abused that discretion. See, e.g., Brown

v. State, 2012 Ark. 399, 424 S.W.3d 288.

                             Arkansas Supreme Court Rule 4-3(i)

       In the instant case, Jeffries received two sentences of life in prison. Pursuant to

Arkansas Supreme Court Rule 4-3(i) (2013), the record has been reviewed for all objections,

motions, and requests that were decided adversely to Jeffries, and no prejudicial error has

been found.

       Affirmed.

       Gregory K. Crain, for appellant.

       Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.




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