ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

LLOYD CALLIE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-1351

January 22, 2003

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT

[NO. CR-2001-7]

HON. JOE MICHAEL FITZHUGH,

JUDGE

AFFIRMED

The appellant in this criminal case was charged with raping his two minor daughters. After a jury trial, he was convicted and sentenced to forty years' imprisonment. On appeal, he asserts that his convictions are not supported by substantial evidence, and that the trial court erred in admitting testimony concerning his prior bad acts. We affirm.

There is no need to detail the facts of this case. Although such detail would normally be required to address appellant's contention that the evidence was not sufficient to support his conviction, it is not required in this instance because the issue of evidentiary sufficiency is not properly before us. Rather than specifying the manner in which the State's proof was deficient, appellant made only a general directed-verdict motion. His sufficiency argument is therefore not preserved for appellate review. Beavers v. State, 345 Ark. 291, 46 S.W.3d

532 (2001). We note, however, that our review of the record shows that the testimony of the victims quite clearly provides substantial evidence of all elements necessary to support the convictions.

Appellant's remaining arguments challenge the introduction of evidence detailing appellant's prior bad acts. There was testimony regarding two incidents in which appellant had sexual contact with other relatives. One incident involved a stepdaughter who resided in the home, and the other incident involved appellant's stepsister many years before trial. These incidents must be analyzed separately because different provisions apply to each.

The stepdaughter testified that, while living in appellant's home as a minor, she was raped by appellant (who was drinking) when he followed her back to her bedroom at night and forced himself on her. Without going into unnecessary detail, we note that this is very similar to the manner in which appellant raped his daughters, and was admissible under the pedophile exception to Rule 404(b) because it shows that appellant has a proclivity to rape young girls in his household to whom he is in the role of paterfamilias. Given the similarity of the ages of the victims, the circumstances of the relationship, and the manner in which the rape was accomplished and concealed, we hold that it was clearly within the trial court's discretion to admit this evidence.

The inquiry regarding appellant's unwanted sexual advances toward his stepsister was permitted after appellant concluded his testimony at trial by declaring emphatically and repeatedly that there was "no way" he could ever do "anything like that." The pedophile exception is inapplicable in this instance because appellant's stepsister was not a minor whenthe act occurred. The State argues that, given that this incident involved an unwanted sexual advance by appellant upon a person to whom he was related by marriage, and given the scope and ambiguity of appellant's testimony that his character was such that he could never do "anything like" the acts with which he was charged, appellant opened the door and rendered this inquiry permissible.

It is true that, by giving direct evidence of good character a party opens the door to rebuttal evidence showing bad character; thus, by opening the door, that which might have been inadmissible becomes admissible:

Rule 404(b) would have precluded introduction of the evidence of another crime by the state just for the purpose of showing that the appellant was a person of bad character, "or to show that he acted in conformity therewith." The rule does not preclude evidence showing the commission of another crime if there is some other, proper purpose for its admission into evidence. In Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980), we held evidence of other crimes could be admitted when it was relevant to the main issue of the guilt or innocence of the accused other than to show the accused's character or action in conformity therewith. Here there is the same kind of independent relevancy although it is not on the main issue but goes to rebuttal of the accused's direct testimony.

McFadden v. State, 290 Ark. 177, 179-80, 717 S.W.2d 812, 813 (1986).

Nevertheless, we need not decide whether the evidence regarding appellant's step-sister was improperly admitted because we are convinced that any error in the admission of this evidence was harmless. On cross-examination, appellant admitted that he made a sexual advance upon his stepsister in 1990 that was rebuffed. He explained that they were both intheir early 20's at the time, that they were together at a party drinking, and that she was not a blood relation. Given that there was no evidence of sexual assault or other misconduct on appellant's part in connection with this incident, we fail to see how he could have been prejudiced by the admission of this testimony.

Affirmed.

Hart and Bird, JJ., agree.