## Facts

- Phillip Hamm held a supervisory role with children at his church and hosted children at his home for activities.
- Two nine-year-old girls, M.C. and N.C., frequently visited Hamm’s home; Hamm also babysat M.C.
- N.C. alleged Hamm inappropriately rubbed her buttocks; M.C. alleged Hamm digitally penetrated her.
- The State charged Hamm with sexual assault involving N.C. and rape involving M.C.
- Hamm was acquitted in a trial on the charge involving N.C.
- In a later, separate trial on the rape charge involving M.C., the State presented M.C. as the primary witness.
- Over objection, the circuit court admitted testimony from:
  - N.C., describing the alleged inappropriate touching; and
  - Robbie Sullivan (a minor), describing an incident at an overnight church function in which Hamm, reclining on an air mattress, placed a young girl astride his pelvic area.
- The circuit court admitted N.C.’s and Sullivan’s testimony under the “pedophile exception” to Ark. R. Evid. 404(b).
- The jury convicted Hamm of rape of M.C., and he received a 17-year prison sentence.

## Issues

1. Whether the evidence was sufficient to support Hamm’s rape conviction.
2. Whether the circuit court erred by excluding evidence that Hamm had been acquitted of the prior charge involving N.C., when N.C. testified as a Rule 404(b) witness.
3. Whether the circuit court erred by admitting Sullivan’s air-mattress testimony under the pedophile exception to Ark. R. Evid. 404(b).

## Decision

- The Arkansas Supreme Court affirmed the conviction and 17-year sentence.
- The court held the evidence was sufficient, relying on M.C.’s testimony describing digital penetration and the rule that a child victim’s uncorroborated testimony can constitute substantial evidence.
- The court held the circuit court did not abuse its discretion by excluding evidence of the prior acquittal involving N.C., finding limited relevance and a risk of jury confusion under Rule 403.
- The court held the circuit court did not abuse its discretion by admitting N.C.’s and Sullivan’s testimony under the pedophile exception, concluding it was relevant to show a pattern and sexual proclivity toward young girls and that its probative value was not substantially outweighed by unfair prejudice.

## Legal Principles

- On sufficiency review, the court views the evidence in the light most favorable to the State and affirms if substantial evidence supports the verdict; credibility determinations are for the jury.
- A child victim’s testimony describing penetration may, without corroboration, constitute substantial evidence of rape.
- Under Arkansas’s pedophile exception to Ark. R. Evid. 404(b), evidence of similar acts with the same or other children may be admitted to show proclivity for sexual acts with a class of persons and a depraved sexual instinct, subject to Ark. R. Evid. 403 balancing.
- A prior acquittal does not establish that the underlying conduct did not occur and does not automatically bar admission of the underlying acts as Rule 404(b) evidence.
- A trial court may exclude evidence of a prior acquittal when its marginal relevance is outweighed by the risk of confusing or misleading the jury under Rule 403.

## Conclusion

The court upheld Hamm’s rape conviction, ruling that M.C.’s testimony provided substantial evidence and that the circuit court acted within its discretion by admitting prior-acts testimony under the pedophile exception while excluding proof of Hamm’s earlier acquittal to avoid confusing the jury.


Hamm v. State, 365 Ark. 647, 232 S.W.3d 463 (Ark. 2006)