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                  SUPREME COURT OF ARKANSAS
                                           No.   CR-16-87

TODD AARON SMITH                                     Opinion Delivered: December   1, 2016
                                  APPELLANT

V.                                                   APPEAL FROM THE MILLER
                                                     COUNTY CIRCUIT COURT
STATE OF ARKANSAS                                    [NO. 46CR-13-188]
                                     APPELLEE
                                                     HONORABLE CARLTON D.
                                                     JONES, JUDGE

                                                     AFFIRMED.


                              RHONDA K. WOOD, Associate Justice

        Todd Aaron Smith appeals the circuit court’s denial of his petition for postconviction

 relief. Smith was convicted for the rape of a young girl. He argues that his trial counsel

 was ineffective in three respects: (1) for failing to object to multiple instances of inadmissible

 hearsay and uncharged allegations of sexual abuse; (2) for failing to object and seek a mistrial

 when one of the jurors allegedly fell asleep during trial; and (3) for failing to call into question

 the credibility of the alleged victims and to highlight inconsistencies in their stories. We

 affirm the circuit court’s denial of postconviction relief.

        In October 2013, Smith was convicted in the Miller County Circuit Court of raping

 a young girl, J.C., and was sentenced to forty years’ imprisonment. The court of appeals

 affirmed. Smith v. State, 2014 Ark. App. 625. Smith subsequently filed a petition for

 postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2016).

 Following a hearing, the circuit court denied the petition.
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       Smith had a relationship with J.C.’s mother when J.C. and her sisters were residing

in their mother’s home. Later, J.C. and her sisters began living with their grandmother,

when she and her two younger sisters, Gr.C. and Ga.C., revealed that they had been sexually

abused by Smith. The girls’ grandmother contacted the police, and a sexual-assault nurse

examiner interviewed and examined the girls. Each of the girls told the sexual-assault nurse

that Smith had had sexual contact with them. While only J.C. showed physical signs of

sexual trauma, at trial the nurse explained that it was not unusual for young girls not to

exhibit physical evidence of abuse given their state of development. The three girls were

also interviewed by a forensic interviewer at the Children’s Advocacy Center. Like they

told the nurse examiner, the girls told the forensic interviewer that Smith had sexually

assaulted them. In particular, J.C. reported that on one occasion Smith had put his “private”

into her “private” and that blood came out.

       Although Smith was charged only with the rape of J.C., both J.C. and her sister,

Gr.C., testified at trial. Gr.C. described one particular instance when Smith laid on top of

her and touched her “private” with his hand. She also testified that she saw Smith “get on

top of” J.C. and their younger sister, Ga.C. J.C. testified that Smith “put his private in [her]

private” and that it hurt “really bad.” J.C. also stated that she saw Smith rape Gr.C., Ga.C.,

and Smith’s daughter, J.S.

       When making a postconviction claim of ineffective assistance of counsel, under

the two prongs of the Strickland test, the appellant must show both that counsel's

performance was deficient and that the deficient performance prejudiced the defense to the

extent that the appellant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668,

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104 S. Ct. 2052 (1984); Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam).

Actual ineffectiveness claims alleging deficiency in attorney performance are subject to a

general requirement that the defendant affirmatively prove prejudice. State v. Barrett, 371

Ark. 91, 263 S.W.3d 542 (2007). With respect to the requirement that prejudice be

established, a petitioner must show that there is a reasonable probability that the fact-finder’s

decision would have been different absent counsel’s errors. Watkins v. State, 2010 Ark. 156,

362 S.W.3d 910; Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008). A reasonable

probability is a probability sufficient to undermine confidence in the outcome of the

trial. Sparkman, 373 Ark. 45, 281 S.W.3d 277. On appeal, the sole question presented is

whether, based on the totality of the evidence, under the standard set forth by the United

States Supreme Court in Strickland, the trial court clearly erred in holding that counsel’s

performance was not ineffective. Carter v. State, 2010 Ark. 231, 364 S.W.3d

46; Watkins, 2010 Ark. 156, 362 S.W.3d 910.

                        I.      Counsel’s Failure to Object to Testimony

       In his first point on appeal, Smith argues that counsel was ineffective for failing to

object to hearsay testimony from witnesses. Smith contends that the State introduced,

without objection, hearsay testimony from the investigating police officer, the sexual-assault

nurse who examined the girls, and the forensic interviewer regarding statements that the

three girls had made to them. The circuit court concluded that all of the elicited testimony

fell within a hearsay exception, the pedophile exception, was cumulative and not so

prejudicial as to undermine its confidence in the verdict, or was trial counsel’s deliberate

trial strategy. We agree.

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       It was not clearly erroneous for the circuit court to find that counsel’s failure to object

to hearsay testimony of the sexual-assault nurse, the forensic examiner, and the investigating

officer was not so prejudicial as to undermine the confidence in the verdict. This testimony

either fell within a hearsay exception or was cumulative of the testimony of Gr.C. and J.C.

The sexual-assault nurse’s testimony regarding the girls’ identification of Smith as the

perpetrator was admissible under the hearsay exception of Ark. R. Evid. 803(4) (2016).

Rule 803(4) provides for the admission of statements made for the purpose of medical

diagnosis or treatment and describing medical history, or past or present symptoms, pain, or

sensation, or the inception or general character of the cause or external source thereof insofar

as reasonably pertinent to diagnosis. See Hawkins v. State, 348 Ark. 384, 72 S.W.3d 493

(2002). Here, the declarants were child victims, who were responding to questions from

the nurse seeking to ascertain circumstances reasonably relevant to their physical and

psychological diagnosis and treatment.     See id. (citing Stallnacker v. State, 19 Ark. App. 9,

715 S.W.2d 883 (1986)). Accordingly, J.C., Gr.C., and Ga.C.’s statements to the nurse fall

within the medical-treatment exception of Rule 803(4), and the circuit court was not clearly

erroneous in its conclusion that Smith’s counsel was not ineffective for failing to object to

this testimony. The remainder of the hearsay testimony regarding Smith’s sexual contact

with minors other than J.C. was cumulative because J.C. and Gr.C. testified that Smith had

molested them and that they had witnessed Smith molest their sisters and J.S. Edison v.

State, 2015 Ark. 376, 472 S.W.3d 474; Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996).

       We also agree with the circuit court that the admission of hearsay testimony was a

matter of trial tactic and strategy and therefore not a ground for post-conviction relief. See

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Williams v. State, 2011 Ark. 489, 385 S.W.3d 288. Smith’s trial counsel testified that his

trial strategy, in part, was to elicit several of the girls’ statements from different witnesses so

that the inconsistencies would be evident to the jurors.               He thought that these

inconsistencies would make the girls less believable. “Matters of trial strategy and tactics,

even if arguably improvident, fall within the realm of counsel’s professional judgment and

are not grounds for a finding of ineffective assistance of counsel.” Id. Here, trial counsel

made a tactical decision to allow the girls’ statements to be admitted, and the circuit court

did not err in finding that counsel was not ineffective for failing to challenge these

statements. See id.

       Smith also argues that his attorney was ineffective for failing to object to hearsay

testimony regarding his drug use. However, because Smith himself testified that he used

drugs during the time of the alleged rapes, he has failed to show how the jury’s decision

would have been different absent this error.        We have repeatedly held that no prejudice

results when evidence admitted erroneously was merely cumulative. Gaines v. State, 340

Ark. 99, 8 S.W.3d 547 (2000). Furthermore, without showing that counsel’s alleged errors

were prejudicial, such claims are not grounds for relief under Rule 37.1. Carter, 2010 Ark.

231, 364 S.W.3d 46 (citing Watkins, 2010 Ark. 156, 362 S.W.3d 910).                    Here, the

investigating officer testified that the girls’ mother, Heather Crowell, confessed that she had

used methamphetamine with Smith “until they passed out.” This testimony was merely

cumulative. Crowell testified that she and Smith “did drugs,” Smith’s girlfriend testified

that she had seen Smith use methamphetamine, and Smith admitted during his testimony

that he had used methamphetamine with Crowell.

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           Smith also alleges that even if the testimony of “uncharged conduct” of Smith’s

sexual contact with minors other than J.C. was not hearsay, his counsel should have objected

on other grounds. Here, the circuit court is correct; the testimony falls within the pedophile

exception to Rule 404(b) of the Arkansas Rules of Evidence. According to Rule 404(b),

“[e]vidence 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.” However, this court 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., Hendrix v. State,

2011 Ark. 122; Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005). 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. Hendrix, 2011 Ark. 122. There

must also be an “intimate relationship” between the perpetrator and the victim of the prior

act. Id.

           Smith maintains that the pedophile exception does not apply to the forensic

interviewer’s testimony that J.C. witnessed Smith molest her younger sisters and Smith’s

daughter, J.S. He claims the pedophile exception is inapplicable to the statements J.C. made

regarding the rape of his own daughter because there is no evidence that his daughter was

in the same household as Smith when he raped her. Thus, he argues the State did not prove

that he and his daughter had an “intimate relationship.” However, whether Smith lived

with J.S. is irrelevant to the inquiry of whether there was an intimate relationship between

J.S. and Smith. We have defined an “intimate relationship” as “close in friendship or

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acquaintance, familiar, near, or confidential.” Parish v. State, 357 Ark. 260, 163 S.W.3d 843

(2004). We previously have admitted testimony of a child living in the same house or was

an overnight guest at a perpetrator’s home as well as a perpetrator who babysat a child or

gained access to the child. Id. Therefore, it was not clearly erroneous for the circuit court

to conclude that Smith and his daughter had an “intimate relationship” sufficient to meet

the pedophile exception, and that Smith’s counsel was not ineffective for failing to object

to this testimony. Smith v. State, 367 Ark. 611, 242 S.W.3d 253 (2006) (counsel is not

ineffective for failing to make meritless argument).

       Similarly, we conclude that the investigating police officer’s testimony that Ga.C.

and Gr.C. reported to others that they had also been raped falls within the pedophile

exception. J.C.’s sisters were abused during the same time interval as J.C., and the reported

acts were similar between the three girls. Smith was dating the girls’ mother during the

alleged abuse, had babysat the girls, and would sometimes stay at their home. Accordingly,

we affirm the circuit court’s finding, as not clearly erroneous, that an intimate relationship

existed between Smith, Ga.C., and Gr.C., and that his counsel was not deficient for failing

to object to this testimony. In addition, we hold that the circuit court did not erroneously

conclude that this testimony created no prejudice sufficient to undermine confidence in the

verdict.

                      II.     Counsel’s Failure to Object to Sleeping Juror

       Smith also asserts that his counsel was ineffective for failing to object and seek a

mistrial after learning that one or more of the jurors had fallen asleep during portions of the

trial. At the Rule 37 hearing, there was conflicting testimony as to whether Smith or his

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family informed Smith’s counsel that a juror was asleep. Smith’s attorney testified that he

had no “independent recollection” that he had been told that a juror was sleeping.

However, Smith’s mother, Sarah Jones, stated that she had observed one juror sleeping and

another using a cell phone during the trial.

       In rendering its decision on the Rule 37 petition, the circuit court was not required

to accept appellant’s allegations as truthful. Jones v. State, 2014 Ark. 448, 486 S.W.3d 743.

Here, the circuit court found counsel’s testimony concerning whether he was informed that

a juror was sleeping more credible. The circuit court also noted how difficult it would have

been for a juror to fall asleep or use an electronic device unnoticed by the court, the

attorneys, trial counsel, or security personnel. This court does not assess the credibility of

witnesses on appeal, and we will not overturn the decision of the circuit court in this matter

as it was based on the assessment of credibility by the trier of fact. See id.

                           III.   Counsel’s Failure to Call Witnesses

       Finally, Smith alleges that his counsel was ineffective for failing to take steps to call

into question the credibility of the alleged victims and to highlight inconsistencies in their

stories. Again, there was conflicting testimony between counsel and Smith’s family as to

whether the name and contact information of these potential witnesses was provided to

counsel. The circuit court ultimately concluded that testimony from the Rule 37 hearing

did not support Smith’s allegation that counsel was provided with the contact information

for these potential witnesses prior to the trial or was derelict in making contact. The circuit

court was in the best position to assess the witnesses’ credibility, and as this determination

was based on the assessment of credibility, we will not overturn it. Id.

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       Additionally, the circuit court concluded that counsel’s trial strategy was one of

imperfect impeachment––allowing the State to introduce much of the girls’ testimony so as

to allow their inconsistences to become evident to the jury. “Matters of trial strategy and

tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment

and are not grounds for a finding of ineffective assistance of counsel.” Howard v. State, 367

Ark. 18, 47, 238 S.W.3d 24, 46 (2006). For these reasons, we affirm.

       Affirmed.

       Craig Lambert, for appellant.

       Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.




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