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ARKANSAS COURT OF APPEALS DIVISION II No. CR-24-606

Opinion Delivered September 3, 2025 FRANK WHEELER APPELLANT APPEAL FROM THE BOONE COUNTY CIRCUIT COURT V. [NO. 05CR-20-240]

STATE OF ARKANSAS HONORABLE JOHN R. PUTMAN, JUDGE APPELLEE AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Frank Wheeler was convicted in a jury trial of one count of rape and one

count of second-degree sexual assault committed against his niece, Minor Child 1 (MC1),

when MC1 was six years old. For these convictions, Wheeler was sentenced as a habitual

offender to consecutive prison terms of fifty and thirty years. Wheeler now appeals and

argues that (1) the evidence of second-degree sexual assault was legally insufficient; (2) the

trial court abused its discretion in admitting testimony about Wheeler’s prior bad acts

involving other individuals; and (3) the trial court erred in denying Wheeler’s request for a

mistrial after an investigator testified that MC1’s sister was also an alleged victim. We affirm.

A person commits rape “if he or she engages in sexual intercourse or deviate sexual

activity with another person who is less than fourteen years of age.”

-

103(a)(3)(A) (Supp. 2019). “Deviate sexual activity” is defined as “any act of sexual gratification involving the penetration, however slight, of the anus or mouth of a person by

the penis of another person; or the penetration, however slight, of the labia majora or anus

of a person by any body member or foreign instrument manipulated by another person.”

(1)(A) & (B) (Supp. 2019). A person commits second-degree

sexual assault “if the person, being eighteen years of age or older, engages in sexual contact

with another person who is less than fourteen years of age.”

(a)(3)

(Supp. 2019). “Sexual contact” is “any act of sexual gratification involving the touching,

directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of

a female.”

(11).

I. Facts

MC1 testified that she is presently eleven years old. In the summer of 2019, when

MC1 was six, she lived with her father; her father’s girlfriend; and her sister, MC2, who is a

year older than MC1. Wheeler, MC1’s uncle, was also living with them.

MC1 described an incident that happened at their house in the summer of 2019

when her father was at work and her father’s girlfriend, Shannon, was at a job interview.

According to MC1, she was with MC2 in the living room watching television and Wheeler

was there. MC1 was sitting on the couch wearing a nightgown and underwear, and MC2

was sitting on the floor. Wheeler was sitting on the floor beside MC2, but then he got up

and sat on the couch beside MC1.

MC1 testified that Wheeler was facing toward her on the couch and said “shh, don’t

tell anyone, I’m just checking to see if you’re healthy.” He then “got beside [her] legs and

2 moved [her] underwear to the side.” MC1 stated that “he touched [her] down there,” and

“he put his finger beside it—inside of it” and that it felt uncomfortable. She stated that

Wheeler did this only one time and that he did not do anything other than put his finger

inside her. After he finished putting his finger inside her “he took it out and said [she] was

healthy or something.” Then Wheeler put her underwear back where it was. MC1 testified

that Wheeler told her not to tell anyone and that if she did tell anyone, he would “hurt [her]

or something like that.”

About an hour later, Shannon returned home. MC1 immediately asked to speak

with Shannon privately in the bathroom, and while they were in the bathroom, she told

Shannon how Wheeler had touched her. Shannon called MC1’s father at work, and she

took both girls and left the house. MC1’s father returned home a short while later, at which

time Shannon and the girls also returned home. After he got home, MC1’s father screamed

at Wheeler and told him to leave the house. Wheeler called MC1 a liar, and MC1’s father

responded, “[M]y kids wouldn’t ever lie about that type of stuff.” MC1 stated that Wheeler

packed his suitcase, and as he was leaving the house, he “flipped [her] off.”

On cross-examination, MC1 was asked about a report regarding her disclosure to

Shannon that Wheeler had “frequently touched her bottom, referring to her butt and vaginal

area.” MC1 stated, “I told her it happened to me and [MC2], too, sometimes. . . . I saw him

touch my sister once, so I told her how he touched [MC2] and me before.” MC1 confirmed

that Wheeler had sexually assaulted her only once, which was on the living room couch in

3 the summer of 2019. She stated, “He didn’t rub around. It’s just he stuck his—because I

know he stuck his finger inside of me.”

Shannon testified that she recalled MC1 asking her to have a private conversation in

the bathroom on the day of the incident. Shannon stated that while in the bathroom, MC1

said that “[Wheeler] has been trying to touch me down there.” After they left the house that

day, MC1 “was telling [Shannon] every—all her details,” and Shannon “was shocked.”

According to Shannon, MC1 said that Wheeler “was rubbing her bottom and was telling

her that it’s okay that [he does] this.” Shannon clarified that when MC1 said “bottom” she

was motioning to her “private parts, like the vaginal area.” MC1 said she told Wheeler to

“cut it out,” and he stopped. Shannon testified that both girls started going to counseling,

which was “after we found out about [MC2], when [MC2] finally came forth.”

Bryttany Wheeler,1 a forensic interviewer at Grandma’s House Children’s Advocacy

Center, conducted an interview with MC1. Bryttany testified that in the interview, MC1

disclosed that Wheeler had touched her bottom, but when shown an anatomically correct

diagram, MC1 was actually referring to her vagina. Bryttany stated that MC1 “disclosed that

he touched her vagina with his finger, pulled aside her panties, and touched the inside, and

1 Bryttany Wheeler is no relation to appellant Frank Wheeler.

4 then put her panties back.”2 According to Bryttany, MC1 stated that this happened one

time.

Patrick Hirsch, a resource officer at MC1’s school, testified about a journal entry

written by MC1 in August 2021 that was brought to his attention. Over Wheeler’s objection,

the journal entry was admitted into evidence but with the limiting instruction that it was to

be considered only for MC1’s credibility and not for the truth of the matter asserted. The

journal entry stated:

I am proud of myself because [I] told my mom and dad about Frank[,] my dad’s brother, touched my women part[]s and my sister’s[.] . . . I told my parent[]s right away Frank sti[c]ked his middle finger up to me when he had to leave. I’m proud I told my mom and dad[.] Th[e]y kicked him out he was mad[.] I was proud[.] [I]f I didn’t tell my mom and dad it would of got worst[.]

Lauralyn Terherst, a child-abuse and neglect investigator with the Arkansas State

Police, testified that she interviewed MC1 in 2019 and again in 2021. Lauralyn testified that

the purpose of the 2021 interview was to determine whether MC1 had any additional

disclosures other than what she had alleged in 2019 regarding Wheeler’s digital penetration

of her vagina, and Lauralyn found during the interview that MC1 was not making any

additional allegations. During the 2021 interview, MC1’s statements were consistent with

what she had previously disclosed in the 2019 interview. The State then asked, “How do

2 Although Wheeler objected to this testimony on the basis of hearsay, the trial court overruled the objection, and Wheeler declined the court’s invitation to give a limiting instruction. Wheeler makes no challenge to the admission of this testimony on appeal.

5 you complete the case when you determine that it is the same disclosure that had been

previously made?” To that question, Lauralyn responded:

In this case it was a little bit unique. But for the most part, if a disclosure is made— and this happens often, because if a child goes to someone and discloses sexual abuse, that person might be mandated to report that, so they’ll call it into the hotline. So, we sometimes get those, and we look at the history and see if anything has been investigated before. And then we have to determine if we’re investigating the same thing because we can’t do two cases at the same time. So, generally, when that happens we will—if it’s the exact same allegation that has been investigated before, and there’s only one victim, we will close the case. And there’s like a special type of closure you could do where it gets screened out, is what they call it, which means the investigation just doesn’t go any further. In this particular one, it was a little special because her sister was also added as an alleged victim, so I couldn’t do the screen-out process, because [her] sister was also added.

(Emphasis added.) Wheeler moved for a mistrial on the basis that the witness “has told the

jury there is another investigation on another child.” The trial court denied the motion but

gave the jury this limiting instruction:

The witness made reference to another investigation. I’m going to direct that you disregard that. We’re here to try this case, not another. Do not consider it as it goes to guilt or innocence.

The State then sought to introduce the testimony of Jessica Hopper and Kendra

Wheeler regarding prior bad acts Wheeler allegedly committed against them. Wheeler

objected to this testimony under Arkansas Rules of Evidence 404(b) and 403, arguing that

these prior bad acts were not similar to the charged conduct in this case and that any

probative value was outweighed by unfair prejudice. The trial court overruled Wheeler’s

objection and permitted these witnesses to testify while giving the following limiting

instruction:

6 Members of the jury, you are instructed that evidence of other alleged crimes, wrongs, or acts of Frank Wheeler may not be considered by you to prove the character of Frank Wheeler in order to show that he acted in conformity therewith. This evidence is not to be considered to establish a particular trait of character that he may have, nor is it to be considered to show that he acted similarly or accordingly on the day of the incident. This evidence is merely offered as evidence of intent, absence of mistake or accident, and/or a proclivity towards a specific act with minor females. Whether any other alleged crimes, wrongs, or acts have been committed is for you to determine.

Jessica Hopper testified that she is thirty-five years old and that Wheeler is married to

her aunt, which makes him her uncle by marriage. Jessica stated that when she was ten or

eleven, she would often visit her aunt and Wheeler, and they would all go swimming in a

nearby river. Jessica stated that on multiple occasions, Wheeler would play a game he called

“the octopus” in which he would approach her from behind in shallow water and wrap his

legs around her, and his crotch would rub against her bottom. Jessica stated that she could

feel Wheeler’s erection. On other occasions when they were inside the house, Wheeler

would give her a “bear hug” from behind and “lock his legs by the ankles” so that his crotch

was touching her bottom. Jessica stated that this made her feel “very gross” and “very

uncomfortable” and that, “even as a kid, you knew it just wasn’t right.”

Kendra Wheeler testified that she is thirty-six years old and that Wheeler is her

paternal uncle. Kendra stated that when she was fourteen, she was riding in the front seat

of Wheeler’s car on a dirt road while her cousins rode in the back. Wheeler pretended to

be lost and stopped the car. Kendra stated that Wheeler thought they were all was asleep,

and “when he tried to get under [her] dress, [she] got out of the car.” After she got out,

Kendra went and sat on the back of the car. She stated that Wheeler followed her to the

7 back of the car and tried to “finger” her vagina but that she stopped him by holding his hand

back. Kendra stated that it made her feel “disgusted” and that she “will never get that visual

out of [her] head.”

After the State rested, Wheeler moved for a directed verdict on both rape and second-

degree sexual assault. In regard to rape, Wheeler argued that the State failed to present prima

facie evidence that there was deviate sexual activity or sexual gratification, and in regard to

second-degree sexual assault, he argued that the State failed to present prima facie evidence

of sexual contact with MC1. The trial court denied both motions for directed verdict.

After the trial court denied Wheeler’s directed-verdict motions, Wheeler objected to

the State’s moving forward on the charges of both rape and second-degree sexual assault,

arguing that the evidence showed there was only one impulse. Wheeler argued, “It’s a

double-jeopardy issue at this point. They’re trying him on two charges for one impulse or

one act of conduct. . . . I think they need to pick a charge and go with it.” The trial court

denied Wheeler’s motion to “pick a charge” and stated it would submit instructions to the

jury on both rape and second-degree sexual assault.

The defense rested without calling any witnesses. Wheeler renewed his directed-

verdict motion, and the trial court denied the motion. Wheeler also renewed his objection

to submission of both charges on double-jeopardy grounds, and the trial court denied the

motion.

The trial court then gave the jury instructions, which included instructions on the

elements of rape and the elements of second-degree sexual assault. The instructions also

8 included an interrogatory that asked the jury to decide whether it found Wheeler was

engaged in separate impulses as it relates to the charges of rape and second-degree sexual

assault, and provided that if the jury found Wheeler engaged in one continuous impulse, it

could convict on only one charge and not both charges.

The jury returned the interrogatory and checked the “yes” box for whether Wheeler

had engaged in separate impulses as it relates to the charges of rape and second-degree sexual

assault. The jury also returned verdicts finding Wheeler guilty of rape and second-degree

sexual assault. For these convictions, the jury sentenced Wheeler to prison terms of fifty and

thirty years, which were ordered to run consecutively as reflected on a sentencing order

entered by the trial court. Wheeler appealed.

II. Discussion

In this appeal, Wheeler raises three arguments: (1) the evidence of second-degree

sexual assault was legally insufficient; (2) the trial court abused its discretion in admitting

testimony about Wheeler’s prior bad acts; and (3) the trial court erred in denying Wheeler’s

request for a mistrial.

A. The Sufficiency of the Evidence of Second-Degree Sexual Assault

Wheeler does not challenge the sufficiency of the evidence supporting his rape

conviction. He argues here, however, that there was no evidence of second-degree sexual

assault.

In reviewing a sufficiency challenge, we assess the evidence in the light most favorable

to the State and consider only the evidence that supports the verdict. Armstrong v. State, 2020

,

. We will affirm a judgment of conviction if substantial evidence

exists to support it.

Substantial evidence is evidence that is of sufficient force and

character that it will, with reasonable certainty, compel a conclusion one way or the other

without resorting to speculation or conjecture.

Although framed as a sufficiency-of-the-evidence challenge, Wheeler argues that

under double-jeopardy principles, a defendant cannot be convicted twice for the same

identical act.3 He then argues that the allegations against him stemmed from one episode

and one activity and that there was nothing in the testimony to suggest different sexual-

assault offenses. He notes that in MC1’s testimony, she stated that he put his finger “beside

it—inside of it” and then pulled his finger back out. MC1 testified that this happened only

one time on the couch, and she stated, “He didn’t rub around. It’s just he stuck his—because

I know he stuck his finger inside of me.” Wheeler asserts that, in the light most favorable to

the State, the testimony was that he inserted his finger inside MC1’s vagina, which if

credited, would constitute rape. He contends, however, that there was no evidence that he

touched or rubbed any other areas of MC1’s body that would support an additional sexual-

assault charge. He therefore claims that his conviction for second-degree sexual assault

should be reversed and dismissed because the evidence was legally insufficient.

3 The Double Jeopardy Clause of the Fifth Amendment protects criminal defendants from multiple punishments for the same offense. Campbell v. State,

,

.

10 We conclude that Wheeler’s double-jeopardy claim is not preserved for review

because it was not timely raised below. The only double-jeopardy argument raised by

Wheeler below was contemporaneous with his directed-verdict motion after the State and

defense had rested its case—which was before the jury was instructed and before the jury

returned its guilty verdicts on each charge. This was ineffective to preserve the issue for

appeal because it was made prematurely before Wheeler was convicted of any offense.

The controlling case is our supreme court’s decision in Brown v. State,

,

(2001). Similar to this case, the appellant in Brown raised a double-jeopardy

argument in his motion for directed verdict. The supreme court held that this was ineffective

to preserve the double-jeopardy argument for appeal:

We agree with the State that this issue is not preserved . . . . We believe that raising the issue of double jeopardy in a motion for directed verdict was premature since the motion at that stage of the proceedings could only relate to charged offenses. After the jury’s verdicts on the various convictions were returned, Brown failed to make any motion whatsoever. Brown’s issue on appeal clearly relates to multiple convictions for the same conduct and not to multiple charges for the same conduct, and our Criminal Code makes this distinction very clear:

When the same conduct of the defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense.

(a)(1) (Repl. 1997).[4] Thus, a defendant cannot object to a double jeopardy violation until he has actually been convicted of the multiple offenses, because it is not a violation of double jeopardy under § 5-1-110(a)(1) for the State to charge and prosecute on multiple and overlapping charges. It was only after the jury returned guilty verdicts on both offenses that the circuit court would be

4 This provision in the Arkansas Code has remained unchanged. See

(a)(1) (Repl. 2024).

11 required to determine whether convictions could be entered as to both based on the same conduct. See

(a)(1) (Repl. 1997).

Because Brown moved for a directed verdict based on double jeopardy before he was convicted of any offense, his motion was ineffective. Because he then failed to object after the jury convicted him of both charges, he waived his double jeopardy argument for purposes of appeal. We conclude that the circuit court committed no error as to double jeopardy, and we affirm the court on this point.

Brown,

, 65 S.W.3d at 399–400 (citations omitted). See also Taylor v. State,

,

.

Pursuant to our supreme court’s holding in Brown, a defendant cannot object to a

double-jeopardy violation on the basis of overlapping charges in the same prosecution until

he has actually been convicted of multiple offenses, and if he fails to object after being

convicted, his double-jeopardy argument is waived. Here, Wheeler’s double-jeopardy

argument below was ineffective because he had not yet been convicted of any offense.

Because his double-jeopardy argument was not raised to the trial court after he was actually

convicted, that argument has been waived.

To the extent Wheeler’s argument under this point is a challenge to the sufficiency

of the evidence supporting his second-degree sexual-assault conviction, that argument is

clearly without merit. A person commits second-degree sexual assault “if the person, being

eighteen years of age or older, engages in sexual contact with another person who is less than

fourteen years of age.”

(a)(3). “Sexual contact” is “any act of

sexual gratification involving the touching, directly or through clothing, of the sex organs . .

. of a person[.]”

(11). In light of MC1’s testimony, there was

12 substantial evidence that all the elements of this offense were satisfied; therefore, the trial

court did not err in denying Wheeler’s directed-verdict motion as to this charge.

Finally, as part of this point on appeal, Wheeler also argues that the trial court erred

in giving a jury instruction—the interrogatory on impulse—because it confused the jury and

the factual issues the jury had to decide. However, this argument is not preserved for appeal

because Wheeler did not object to the instruction below. See Bridges v. State,

,

(1997) (“It is well settled that no party may assign as error the

giving or failure to give an instruction unless he objects thereto before or at the time the

instruction is given, stating distinctly the matter to which he objects and the grounds of his

objection.”). Because this issue is not preserved, we make no comment on the propriety of

this jury instruction.

B. Wheeler’s Prior Bad Acts

Wheeler next argues that the trial court erred in admitting the testimony of Jessica

Hopper and Kendra Wheeler regarding his prior bad acts. Wheeler notes that neither of

these witnesses reported actual rape. He contends that his conduct with respect to these

witnesses was neither similar to the conduct with which he was charged nor relevant, and he

argues further that any relevance was substantially outweighed by the danger of unfair

prejudice. Our standard of review for evidentiary rulings is whether the trial court abused

its discretion. Greeno v. State,

,

.

Rule 404(b) of the Arkansas Rules of Evidence provides, “Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to show that he

13 acted in conformity therewith. It may, however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Evidence of other crimes will be admitted if it has independent

relevance, and the relevance is not substantially outweighed by the danger of unfair

prejudice; 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 the evidence. Cuevas-Flores v. State,

,

.

Furthermore, our supreme court has recognized a “pedophile exception” to Rule

404(b) as explained in Hamm v. Hamm,

, 652–53,

, 468–69

(2006):

This court has recognized a “pedophile exception” to Rule 404(b), which allows evidence of 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. The rationale for recognizing the exception is that such evidence helps to prove the depraved instinct of the accused. The basis of the pedophile exception to Rule 404(b) is our acceptance of the notion that evidence of sexual acts with children may be shown, as that evidence demonstrates a particular proclivity or instinct. For the pedophile exception to apply, we require that there be a sufficient degree of similarity between the evidence to be introduced and the sexual conduct of the defendant. We also require that there be an “intimate relationship” between the perpetrator and the victim of the prior act. . . . [T]he pedophile exception [is] applicable if the victim [was] under the authority of the perpetrator or in his care.

(Citations omitted.) In Hamm, the supreme court held that evidence that appellant touched

a young girl’s buttocks underneath her clothing was properly admitted under the pedophile

exception in a case in which the appellant was charged with penetrating the victim’s vagina

with his finger. The supreme court in Hamm noted that the cases were sufficiently similar

14 under the pedophile exception because, among other things, the gender of the victims was

the same, both victims had met the appellant at the church, and neither victim was related

to the appellant. The supreme court also applied the pedophile exception in Hernandez v.

State,

,

(1998), and stated, “[T]he pedophile exception seems

especially applicable in view of the evidence that Mr. Hernandez was attracted to the physical

characteristics of young girls.”

,

. Finally, in Meacham v. State,

,

, our court noted that Arkansas appellate courts have

applied the pedophile exception to acts that occurred eleven, fourteen, and even twenty-eight

years apart.

Applying these principles, we hold that the trial court did not abuse its discretion in

admitting Jessica’s or Kendra’s testimony under the pedophile exception. Jessica’s testimony

showed that, when she was ten or eleven, Wheeler would hug her from behind and rub his

erect penis against her backside. Kendra testified that when she was fourteen, Wheeler tried

to “finger” her vagina, which was the same conduct Wheeler actually committed against

MC1. In each case, the victim was a young girl and was also Wheeler’s niece with whom he

had a supervisory role at the time. This testimony was relevant to show Wheeler’s depraved

sexual instinct and his proclivity for molesting young girls. Accordingly, we conclude that

there was no error in admitting the testimony.

C. Wheeler’s Motion for Mistrial

Wheeler’s final argument on appeal is that the trial court abused its discretion in

denying his request for a mistrial after investigator Lauralyn Terherst made a statement in

15 her testimony about MC1’s older sister also being an alleged victim. Lauralyn testified that

she interviewed MC1 in 2021, and the goal was to determine whether MC1 was disclosing

anything other than what she had disclosed in 2019. Lauralyn stated that there were no new

disclosures, at which point the State asked, “How do you complete the case when you

determine that it is the same disclosure that had been previously made?” Lauralyn gave a

lengthy narrative response that concluded with the following: “In this particular one, it was

a little special because her sister was also added as an alleged victim, so I couldn’t do the

screen-out process, because [her] sister was also added.” Wheeler moved for a mistrial and

argues on appeal that it should have been granted because of the insinuation that he was

also the suspect in an investigation involving MC1’s sister.

A mistrial is an extreme and drastic remedy to be used only when there has been an

error so prejudicial that justice cannot be served by continuing the trial. Russell v. State,

,

(1991). A trial court may grant or deny a motion for mistrial

utilizing sound discretion, and the exercise of that discretion should not be disturbed on

appeal unless an abuse of discretion or manifest prejudice to the complaining party is shown.

See King v. State,

,

(1989). Among the factors considered by

this court on appeal in determining whether a trial court abused its discretion in denying a

mistrial motion are whether the prosecutor deliberately induced a prejudicial response and

whether an admonition to the jury could have cured any resulting prejudice. Hall v. State,

,

. The abuse-of-discretion standard is a high threshold

that does not simply require error in the trial court’s decision but requires that the trial court

16 act improvidently, thoughtlessly, or without due consideration. Hortenberry v. State,

,

.

Instead of granting a mistrial, the trial court exercised its discretion and admonished

the jury to disregard Lauralyn’s objectionable statement about there being another

investigation. An admonition to the jury usually cures a prejudicial statement unless it is so

patently inflammatory that justice could not be served by continuing the trial. McClendon v.

State,

,

. Additionally, it is clear that the prosecutor did not

deliberately induce Lauralyn’s statement. Finally, we will not reverse absent a showing of

prejudice, and a defendant cannot show prejudice from the denial of a mistrial motion when

the allegedly offending statement is merely cumulative of other testimony offered earlier on

the trial. See Gaines v. State,

,

(2000). Prior to Lauralyn’s testimony,

MC1 testified on cross-examination without objection that Wheeler had also inappropriately

touched her sister. Similarly, MC1’s father’s girlfriend, Shannon, testified without objection

that both girls started going to counseling “after we found out about [MC2], when [MC2]

finally came forth.” Given these considerations, we hold that the trial court did not abuse

its discretion in denying Wheeler’s motion for mistrial.

III. Conclusion

For the reasons stated herein, Wheeler’s arguments on appeal are either unpreserved

or are without merit. Therefore, we affirm Wheeler’s convictions for rape and second-degree

sexual assault.

Affirmed.

17 KLAPPENBACH, C.J., and HARRISON, J., agree.

Sharon Kiel, for appellant.

Tim Griffin, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.

18