DUSTIN JONES v. STATE OF ARKANSAS

Cite as 2025 Ark. App. 446
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-24-724

Opinion Delivered September 24, 2025
DUSTIN JONES
APPELLANT APPEAL FROM THE CRAWFORD
COUNTY CIRCUIT COURT
V. [NO. 17CR-23-746]

STATE OF ARKANSAS HONORABLE CANDICE A. SETTLE,
JUDGE
APPELLEE
AFFIRMED

MIKE MURPHY, Judge

A Crawford County Circuit Court jury convicted appellant Dustin Jones of three

counts of second-degree sexual assault pursuant to Arkansas Code Annotated section 5-114-

125(a)(3) (Repl. 2024). Under subdivision (a)(3), a person commits sexual assault in the

second degree if being eighteen years of age or older, he engages in sexual contact with

another person who is less than fourteen years of age. Jones was sentenced to twenty years’

incarceration for each count, for a total of sixty years’ incarceration. He was also fined $5000

for each count. On appeal, Jones argues that the circuit court erred in permitting testimony

by improper application of the pedophile exception to Arkansas Rule of Evidence 404(b)

and that the probative value of the testimony was substantially outweighed by its prejudicial

effect in violation of Arkansas Rule of Evidence 403. We affirm.
Because Jones does not challenge the sufficiency of the evidence, only a brief

recitation of the facts is necessary. On September 5, 2023, MC told her mother that Jones,

her mother’s live-in boyfriend whom MC viewed as a stepfather, had been touching her

inappropriately. MC, who was nine when the abuse took place, disclosed that Jones touched

her on at least three occasions. In the first two instances of abuse, Jones touched MC’s vagina

over her underwear. The third time, he touched MC’s vagina under her underwear. In all

instances, the abuse occurred in MC’s room while she was in Jones’s care. MC’s mother

testified that MC became unusually angry and sad while the abuse was ongoing and returned

to her usual, happy self after Jones had been removed from the home.

Preceding the trial, the State filed a motion seeking to introduce the testimony of a

woman who claimed Jones had sexually abused her. The woman and Jones are first cousins.

The woman recalled that the abuse occurred in 2004 when Jones was approximately twenty-

two years old, and she was approximately fourteen years old. At the motion hearing, the

woman testified that she would often stay overnight with Jones, who would begin by

touching her vagina over her clothes, eventually progressing to touching her vagina

underneath her clothes, all while “roughhousing.” She recalled that Jones inappropriately

touched her seven or eight times and raped her twice when she was between the ages of

fourteen and seventeen. She said the abuse stopped because she “just dodged [Jones] every

chance she got.”

At the motion hearing, Jones objected to the introduction of the woman’s testimony,

arguing it was cumulative, was more prejudicial than probative, and did not fall under an

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exception for propensity evidence. The court granted the State’s motion, given the similar

nature of the allegations and in light of the pedophile exception.

At the jury trial, the State offered the woman’s testimony. She testified to the same

facts and added that Jones had also forced her to perform oral sex when she was fourteen or

fifteen. After the State rested, Jones waived his right to testify. The jury then found him guilty

on all three counts. Jones now appeals.

Jones’s sole argument on appeal is that the court erred in permitting the woman to

testify. He claims the court improperly applied the pedophile exception because the woman’s

situation was not of a similar nature or temporally related. Jones also argues that the

probative value of her testimony was substantially outweighed by its prejudicial effect in

violation of Rule 403.

Challenges to an evidentiary ruling are reviewed under the abuse-of-discretion

standard. Baumann v. State, 2018 Ark. App. 564, at 4, 566 S.W.3d 494, 498. We will not

reverse the circuit court’s ruling absent a showing of manifest abuse. James v. State, 2021 Ark.

App. 33, at 8–9, 616 S.W.3d 267, 273. Abuse of discretion is a high threshold that does not

simply require error in the circuit court’s decision but requires that the circuit court act

improvidently, thoughtlessly, or without due consideration. Id. Additionally, prejudice must

have resulted. Id.

We recently addressed this area of law in Sublett v. State, 2025 Ark. App. 374, at 8–
11:

Pursuant to Arkansas Rule of Evidence 404(b), “[e]vidence of other crimes,
wrongs, or acts it not admissible to prove the character of a person in order to show

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that he acted in conformity therewith.” Such evidence is permissible for other
purposes, however, “such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” E.g., Duvall v. State, 2018 Ark.
App. 155, at 5, 544 S.W.3d 106, 110. “Under Ark. R. Evid. 404(b), evidence of other
crimes will be admitted if it has independent relevance, and its relevance is not
substantially outweighed by the danger of unfair prejudice.” Jones v. State, 349 Ark.
331, 339, 78 S.W.3d 104, 110 (2002). Evidence is independently relevant if it tends
to make the existence of any fact that is of consequence to the determination of the
action more or less probable than it would be without evidence. Cluck v. State, 365
Ark. 166, 226 S.W.3d 780 (2006).

Arkansas appellate courts recognize a “pedophile exception” to Rule 404(b)
“that allows the State to introduce evidence of the defendant’s similar acts with the
same or other children when it is helpful in showing a proclivity for a specific act with
a person or class of persons with whom the defendant has an intimate relationship.”
Duvall, 2018 Ark. App. 155, at 6, 544 S.W.3d at 110. The rationale for the exception
is that such evidence helps to prove the depraved sexual instinct of the accused. Jeffries
v. State, 2014 Ark. 239, 434 S.W.3d 889. Further, it is admissible to show the
familiarity of the parties, disposition, and antecedent conduct toward one another
and to corroborate the testimony of the victim, see Fields v. State, 2012 Ark. 353, at 6,
and to show motive, intent, or plan. See Holland, supra. Also, “Rule 404(b) makes no
distinction between substantiated and unsubstantiated conduct, or between charged
and uncharged conduct. This court has explicitly held that our application of the
pedophile exception does not require that the prior act be charged or substantiated.”
Holland, 2015 Ark. 341, at 8, 471 S.W.3d at 185.

While the State may introduce evidence of unsubstantiated prior allegations
to show an accused’s “proclivity to offend,” there are three essential restrictions on
the pedophile exception. See Baumann v. State, 2018 Ark. App. 564, 566 S.W.3d 494.
First, it is necessary “that there be an ‘intimate relationship’ between the perpetrator
and the victim.” Holland, 2015 Ark. 341, at 7, 471 S.W.3d at 184. The relationship
must be one “close in friendship or acquaintance, familiar, near, or confidential.”
Eubanks v. State, 2009 Ark. 170, at 4–5, 303 S.W.3d 450, 453. This standard is not
strict; the act of babysitting has been found to satisfy the “intimate relationship”
criterion. See Morrison v. State, 2011 Ark. App. 290, at 4. Second, courts require that
there be a “sufficient degree of similarity between the evidence to be introduced and
the sexual conduct of the defendant.” Id. at 3. Physical similarities between the alleged
victim and the Rule 404(b) witness such as age and gender are relevant when there is
not “identical” conduct toward each by the accused. See Stewart v. State, 2011 Ark.
App. 658, at 7, 386 S.W.3d 583, 587. Third, evidence admitted pursuant to Rule

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404(b) must not be too separated in time, making the evidence unduly remote.
Holland, 2015 Ark. 341, at 8, 471 S.W.3d at 185. “[A] reasonableness standard is used
to determine whether a crime remains relevant rather than a specific time limit.” Id.
at 9, 471 S.W.3d at 185.

Finally, even if evidence of prior allegations of child abuse meets the criteria
for the pedophile exception to Rule 404(b), it is still subject to potential exclusion
under Rule 403 if the probative value of the evidence is substantially outweighed by
the danger of unfair prejudice. Holland, supra. Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence. Ark. R.
Evid. 403.

Here, the woman’s testimony meets the requirements of the pedophile exception.

First, there is no dispute that an intimate relationship was established. Jones was an older

family member to both MC and the woman since he was a stepfather figure to MC and the

woman’s older cousin. The abuse occurred while both were under Jones’s care. As a

family/household member, Jones was in a position of trust over the minors.

Next, the acts described by both the woman and MC were sufficiently similar. The

woman was fourteen when the abuse initially occurred, and MC was nine, making them

about five years apart in age. The acts performed by Jones in both cases started out similarly

by touching both victims on their vagina. MC’s abuse never progressed to rape as the woman

testified hers did. Although the two accounts are not identical, both signify Jones’s sexual

interest in the bodies of young teen or preteen girls at a certain stage of development. See

Stewart v. State, 2011 Ark. App. 658, at 7, 386 S.W.3d 583, 587 (holding that the testimony

of a previous victim describing appellant’s request to see her breasts and the current victim

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describing actual touching of her breast, buttocks, and vagina were found to be sufficiently

similar under the pedophile exception).

To support his argument that the evidence was not similar, Jones suggests the circuit

court should have considered that there was a smaller age gap between him and the woman.

He directs us to Efird v. State, 102 Ark. App. 110, 282 S.W.3d 282 (2008). In Efird, the

defendant was convicted of repeatedly raping his minor stepdaughter. Id. at 113–14, 282

S.W.3d at 284. On appeal, this court reversed the circuit court’s decision to admit testimony

from the defendant’s half brother that he and the defendant engaged in genital touching

and oral sex seventeen years earlier. Id. at 114, 282 S.W.3d at 284. The court reasoned that

the defendant’s prior sexual acts with his half brother, committed when they were between

twelve and fourteen years old and sharing a bedroom, did not demonstrate any proclivity or

instinct relevant to determining whether he had raped a minor child. Id. Notably, both the

appellant and his half brother were minors. In the case at bar, Jones was twenty-two years old

when he abused the woman.

Finally, this evidence is not unduly remote such that it requires exclusion. Nineteen

years had elapsed between the incident involving the woman and the acts concerning MC.

This court has held that the pedophile exception to Rule 404(b) applies to acts that occurred

forty-two years prior. See Morrison v. State, 2011 Ark. App. 290. As we explained in Morrison,

the purpose of considering the remoteness is to ensure that the prior-act evidence has a

connection to the charged conduct and demonstrates a proclivity for a specific act with a

person or class of persons. In light of the specific facts and testimony presented in this case,

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the woman’s testimony has a connection with the case at bar, and Jones’s prior acts were not

too remote in time to be relevant.

Jones continues by arguing that the woman’s testimony should have been excluded

pursuant to Arkansas Rule of Evidence 403 because its probative value was substantially

outweighed by the danger of unfair prejudice. We disagree. The abuse the woman testified

to was probative of Jones’s deviate sexual impulse to sexually abuse a minor girl in his family.

In deferring to the circuit court’s broad discretion, we cannot say the testimony was unfairly

prejudicial.

Affirmed.

HARRISON and TUCKER, JJ., agree.

Lisa-Marie Norris, for appellant.

Tim Griffin, Att’y Gen., by: Dalton Cook, Ass’t Att’y Gen., for appellee.

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