Admitting Non‑Contact Sexualized Conduct Under Arkansas’s Pedophile Exception and Reaffirming Course‑of‑Conduct Nonhearsay: Commentary on Meacham v. State, 2025 Ark. 27

Introduction

In Dean Leroy Meacham v. State of Arkansas, 2025 Ark. 27, the Supreme Court of Arkansas affirmed three concurrent life sentences for the rape of a minor victim (MV), the appellant’s daughter. The appeal raised four distinct evidentiary and trial‑management challenges: (1) whether a forensic interviewer’s testimony that the child disclosed abuse was impermissible hearsay; (2) whether the mother’s testimony that she believed the victim was an improper comment on a witness’s credibility; (3) whether testimony that the defendant videoed MV nude in the shower was barred by Arkansas Rule of Evidence 404(b) or permitted by the “pedophile exception”; and (4) whether a mistrial (or admonition) was required when MV blurted out a partial reference to “coming out” in the context of worsening abuse.

The Court’s opinion offers an important application—and practical clarification—of Arkansas evidentiary law in child‑sexual‑abuse prosecutions. Most notably, it confirms that non‑contact sexualized conduct (here, videoing the child nude in the shower) is admissible under the pedophile exception to Rule 404(b) where it demonstrates a depraved sexual instinct and is sufficiently similar and temporally related to the charged conduct. It also reaffirms the “course‑of‑conduct” nonhearsay doctrine for limited testimony by investigators and forensic interviewers, reinforces stringent preservation requirements for evidentiary objections, and underscores the high bar for mistrials when an isolated, curtailed comment could be cured—or best left unhighlighted—without admonition.

Summary of the Opinion

• Hearsay: The Court held that the forensic interviewer’s testimony that the child disclosed sexual abuse by her father was not hearsay because it was admitted to explain the interviewer’s course of conduct (why she pursued a sexual‑assault exam and investigative steps), not to prove the truth of the abuse itself. See Decay v. State, 2009 Ark. 556, 352 S.W.3d 319.
• Credibility comment: The challenge to the mother’s statement that she “knew [her child] was telling the truth” was unpreserved because trial counsel failed to object at the first opportunity. See Scarbrough v. State, 2024 Ark. 71.
• Rule 404(b)/Pedophile exception: Testimony that Meacham videoed MV nude in the shower was admissible under the pedophile exception. The Court found an intimate relationship (father–daughter), sufficient similarity (sexualized exploitation of the same child), acceptable temporal proximity, and that the Rule 403 balance favored admission.
• Mistrial/admonition: The trial court did not abuse its discretion in denying a mistrial or an admonition after MV began to say the abuse worsened once she had “come out”—a remark the prosecutor cut off. The trial court reasonably concluded there was no deliberate elicitation, the statement was isolated and incomplete, and that highlighting it with an admonition risked undue emphasis.
• Rule 4‑3(a) review: Given the life sentences, the Court reviewed the record for all adverse rulings and found no reversible error.

Analysis

Precedents Cited and Their Influence

The Court’s analysis is grounded in settled standards:

• Abuse‑of‑discretion standard and prejudice requirement: The Court reiterated that evidentiary rulings are reviewed for abuse of discretion—a “high threshold” requiring more than mere error, and reversal also requires a showing of prejudice. See Bragg v. State, 2023 Ark. 66; Threadgill v. State, 347 Ark. 986, 69 S.W.3d 423 (2002); Bishop v. State, 2023 Ark. 150.
• Nonhearsay—course of conduct: Decay v. State, 2009 Ark. 556, supports admission of statements not for their truth but to explain subsequent investigative actions. The Court relied on Decay to uphold the forensic interviewer’s limited testimony that a disclosure occurred.
• Preservation of error: Scarbrough v. State, 2024 Ark. 71, Duck v. State, 2018 Ark. 267, and Chunestudy v. State, 2012 Ark. 222, establish that objections must be made at the first opportunity and renewed as necessary; failure to do so forfeits appellate review. The Court applied this to the mother’s credibility comment.
• Pedophile exception under Rule 404(b): The Court synthesized Holland v. State, 2015 Ark. 341; Fields v. State, 2012 Ark. 353; Kelley v. State, 2009 Ark. 389; Jeffries v. State, 2014 Ark. 239; and Eubanks v. State, 2009 Ark. 170, to confirm that other sexualized acts toward a child—when sufficiently similar, involving an intimate relationship, and not unduly remote—may be admitted to show motive, intent, disposition, and a depraved sexual instinct, as well as to corroborate the victim.
• Temporal proximity and remoteness: Brown v. State, 2012 Ark. 399, and later cases (e.g., Nelson v. State, 365 Ark. 314 (2006); Holland; Baumann v. State, 2018 Ark. App. 564) demonstrate that relatively long gaps can still satisfy proximity where the acts involve the same child and pattern of abuse. The intervals in Meacham—about one to five years between the nude‑video incident and the rapes—easily fell within the acceptable range.
• Rule 403 balancing: Holland and Hernandez v. State, 331 Ark. 301 (1998), confirm that otherwise admissible other‑acts evidence may be excluded only if its probative value is substantially outweighed by unfair prejudice. The Court emphasized that the record already contained significant forensic and testimonial proof of sexual abuse, minimizing incremental prejudice from the shower‑video testimony while adding probative corroboration of sexual interest in the child.
• Mistrial and admonitions: Barefield v. State, 2024 Ark. 141; McClendon v. State, 2019 Ark. 88; Armstrong v. State, 366 Ark. 105; and Sylvester v. State, 2016 Ark. 136, underscore that mistrial is an “extreme and drastic remedy” reserved for errors that fundamentally undermine trial fairness; isolated nonresponsive blurts, especially promptly curtailed and not deliberately induced, rarely justify mistrial. Admonitions ordinarily cure prejudice unless the remark is patently inflammatory.
• Appellate scope tied to trial objections: Moore v. State, 372 Ark. 579 (2008). The Court refused to consider newly framed appellate arguments about the “come out” blurt that diverged from the trial objection.

Legal Reasoning

The Court applied well‑settled principles to four discrete issues:

• Forensic interviewer’s testimony was nonhearsay: Because the State elicited only that a disclosure occurred (not the particulars) to explain investigative steps (e.g., medical exam, evidence collection), the court correctly treated it as nonhearsay “course‑of‑conduct” evidence under Decay. The testimony was not offered to prove the truth that the abuse occurred but to show why certain actions were taken. That distinction preserved admissibility without triggering a hearsay exception analysis.
• Mother’s credibility comment unpreserved: The defense did not object when the mother first stated she “knew [the child] was telling the truth,” objecting only after a later iteration. Under Scarbrough and related cases, the first missed opportunity is dispositive; the claim is forfeited.
• Pedophile exception applied to shower‑video evidence: The Court found the core prerequisites satisfied:
  • Intimate relationship: Father–daughter satisfies the exception’s “intimacy” requirement.
  • Similarity and depraved sexual instinct: Videoing a minor child nude in the shower evidences sexualized exploitation of the same victim and supports a depraved sexual instinct—closely related to the charged sexual assaults.
  • Temporal proximity: The video occurred roughly a year before the rapes began, within an overall one‑to‑five‑year window—well within prior Arkansas approvals of much longer spans where patterns of abuse are at issue.
  • Rule 403 balance: Given the existing forensic corroboration (e.g., semen on bedsheets) and victim testimony, the incremental prejudice from the shower‑video testimony was low, while its probative value in showing deviant sexual interest and corroborating MV was significant.
  The Court thus affirmed admission under Rule 404(b)’s pedophile exception and Rule 403.
• No mistrial or admonition warranted after “come out” blurt: The question permitted by the trial court asked only whether the abuse worsened at some point; MV began to respond with “Yes, once I had come out as—” before the prosecutor cut her off. The trial court reasonably found no deliberate elicitation, that the comment was isolated and incomplete, and that an admonition risked exacerbating any prejudice by drawing attention to the remark. Under Barefield, McClendon, and Sylvester, denying a mistrial or admonition was within the court’s discretion.

Impact

Meacham’s most salient contribution is its explicit application of the pedophile exception to non‑contact sexualized conduct involving the same child—specifically, recording the child nude. While Arkansas precedent already allowed other acts showing “depraved sexual instinct,” this opinion clarifies that the exception is not confined to hands‑on prior assaults. It reaches sexualized exploitation that sufficiently illuminates motive, intent, plan, and a defendant’s deviant sexual interest in the child, provided the act is similar enough and not unduly remote.

Additional practical effects include:

• Forensic and investigative testimony: Prosecutors can continue to elicit that a disclosure occurred to explain subsequent investigative steps without triggering hearsay, if offered strictly to show course of conduct. Defense counsel should consider asking for a limiting instruction to cabin the jury’s use of such testimony.
• Preservation rigor: Meacham underscores that objections must be made at the first moment a ground arises; otherwise, appellate review is foreclosed. Trial lawyers must be vigilant in objecting contemporaneously and renewing objections when topics recur.
• Mistrial/admonition strategy: Trial courts may decline admonitions when they risk amplifying a fleeting, unsolicited remark. Counsel should be prepared with neutral, narrowly tailored proposed admonitions to maximize the chance of acceptance.
• Victim privacy in appellate opinions: Although not a holding, the concurrence raises a significant policy concern about protecting minor victims’ identities even when using initials as required by Ark. Sup. Ct. R. 6‑3(b). The majority responds that certain identifiers (age and relationship) were necessary to resolve legal issues (the age element under Ark. Code Ann. § 5‑14‑103(a)(3)(A) and the “intimate relationship” element of the pedophile exception). Expect continued institutional attention to how opinions balance analytical needs with privacy protections.

Complex Concepts Simplified

• Hearsay vs. nonhearsay “course of conduct”: Hearsay is an out‑of‑court statement offered to prove what it asserts. If a statement is offered for a different reason—such as to show that the statement was made and thereby explain what the listener did next—it is not hearsay. Here, saying “the child disclosed abuse” helped explain why the interviewer and police took certain steps; it was not offered to prove the abuse itself.
• Rule 404(b) and the “pedophile exception”: Rule 404(b) generally bars evidence of other bad acts to prove a person acted in conformity with a bad character. Arkansas recognizes an exception in child‑sex cases permitting other acts that show motive, intent, plan, disposition, or “depraved sexual instinct,” especially where there is an intimate relationship and the acts are similar and not too remote in time. The exception can include non‑contact sexualized acts (like videoing the child nude) if they illuminate the same deviant interest and pattern as the charged crimes.
• Rule 403 balancing: Even when evidence is relevant and admissible under 404(b), it may be excluded if its probative value is substantially outweighed by unfair prejudice. Courts consider what the jury already knows and whether the new evidence adds more probative force than prejudice.
• Preservation of error: To raise an evidentiary issue on appeal, a party must object at the first opportunity and, if necessary, renew the objection when the topic recurs. Missing the first chance generally forfeits the argument.
• Mistrial and admonitions: A mistrial ends the trial and is reserved for errors so serious that continuing would be unfair. Often, a judge can instruct the jury to disregard a remark (an admonition). If a comment is brief, nonresponsive, and immediately halted, judges frequently deny mistrials and may decline admonitions if they would unduly highlight the remark.
• Rule 4‑3(a) review: When a defendant receives a life sentence, the Arkansas Supreme Court independently reviews the record for all adverse rulings to ensure no reversible error was missed.

Practice Pointers

• For prosecutors:
  • When eliciting disclosure testimony from investigators or interviewers, tie it explicitly to “course of conduct” (why they did what they did) and avoid details that edge toward proving the truth of the allegation.
  • For 404(b) evidence in child‑sex cases, build a record on the pedophile‑exception factors: intimate relationship, similarity, temporal connection, corroborative value, and Rule 403 balance. Non‑contact sexualized conduct with the same child can qualify.
  • If a witness blurts out an inadmissible or sensitive remark, cut it off immediately and be prepared to argue against an admonition if it would do more harm than good.
• For defense counsel:
  • Object at the first hint of objectionable testimony and renew the objection if the subject reappears; preservation is unforgiving.
  • When “course‑of‑conduct” nonhearsay is admitted, request a limiting instruction confining the jury to consider the statement only for that purpose, not for its truth.
  • Combat 404(b) evidence by challenging similarity and arguing temporal remoteness and Rule 403 unfair prejudice, especially where other proof already exists.
  • When seeking a mistrial or admonition, propose a narrowly worded, neutral admonition to maximize the trial court’s willingness to give it without magnifying the issue.
• For courts:
  • When admitting “course‑of‑conduct” evidence, consider contemporaneous limiting instructions to prevent misuse.
  • In 404(b)/pedophile‑exception rulings, make explicit findings on similarity, intimacy, temporal proximity, and 403 balancing to aid appellate review.
  • Be deliberate about whether an admonition will cure or amplify a brief, nonresponsive remark.
  • Continue refining opinion‑writing practices to protect minors’ anonymity consistent with Ark. Sup. Ct. R. 6‑3(b) while explaining legal reasoning that depends on age and relationship.

Discussion of the Concurrence and Footnote Exchange

Justice Wood concurred in the judgment and legal analysis but expressed concern about protecting the minor victim’s identity in publicly accessible opinions, noting that even with initials, other details (e.g., relationship to the defendant, parental surname, approximate birth year) can enable identification. The concurrence urges greater restraint and purposeful redaction consistent with Rule 6‑3(b)’s objectives.

The majority’s footnote responds that age and relationship were necessary to resolve the legal issues presented: age is an element of rape under Ark. Code Ann. § 5‑14‑103(a)(3)(A), and the pedophile exception requires an “intimate relationship” analysis. The majority also points to numerous opinions—often joined by the concurrence—where similar identifiers were used. While not a doctrinal holding, this exchange highlights an ongoing institutional balance between transparency, analytic sufficiency, and victim privacy that will likely continue to shape how Arkansas appellate courts craft opinions in sensitive cases.

Conclusion

Meacham v. State, 2025 Ark. 27, is a robust reaffirmation of Arkansas evidentiary doctrine in child‑sexual‑abuse prosecutions and a clarifying application in two practical respects. First, it confirms that non‑contact sexualized conduct involving the same child—here, videoing the child nude—falls within Rule 404(b)’s pedophile exception when it demonstrates a depraved sexual instinct and bears sufficient similarity and temporal relation to the charged crimes, subject to Rule 403. Second, it underscores the vitality of the “course‑of‑conduct” nonhearsay pathway for limited disclosure testimony by forensic interviewers and investigators, provided the testimony is not offered for its truth.

The opinion also reiterates demanding preservation rules, the rarity of mistrials for isolated and curtailed blurts, and the discretion to withhold admonitions that might spotlight a fleeting remark. Finally, the concurrence’s cautionary note on victim privacy—along with the majority’s explanation of why certain identifiers were necessary here—signals a continued, careful judicial engagement with how appellate courts publicly discuss sensitive facts without undermining their analytical duties.

Key takeaway: Arkansas courts remain receptive to contextual, pattern‑of‑abuse evidence in child‑sex cases under the pedophile exception, including non‑contact sexualized acts, while vigilantly cabining hearsay through the course‑of‑conduct doctrine and maintaining high bars for mistrials and unpreserved objections.