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Date: 12-05-2018

Case Style:


Case Number: 2018 Ark. App. 564



Plaintiff's Attorney: Adam Jackson, Ass’t Att’y Gen.

Defendant's Attorney: Shane Wilkinson


Baumann was charged with one count of rape and one count of sexual assault in the
second degree against a minor, E.S. Prior to trial, the circuit court held a hearing on
Baumann’s pretrial motion to exclude Bridges’s Rule 404(b) testimony. At the time of the
hearing, Bridges was forty years old. She testified that she is Baumann’s biological daughter
and grew up with Baumann and that the sexual abuse started in “probably the fourth or
fifth grade.” Bridges testified that when she was in the sixth grade, Baumann came into her
bedroom and touched her on the arm and shoulder. That type of event continued with his
touches progressing until eventually he was touching her vagina. She explained that his
visits to her room occurred at night while other people were in the house, but she had a
bedroom to herself. As she got older, Baumann moved from touching her vagina to forcing
Bridges to touch his penis and to forcing her to engage in oral and vaginal intercourse. She
testified that once, after vaginal intercourse, Baumann told her how beautiful she was. The
circuit court found Bridges credible and stated that she would be allowed to testify. The
circuit court ruled that the testimony would be admissible under the pedophile exception
pursuant to Ark. R. Evid. 404(b) and that it did not violate Ark. R. Evid. 403. Baumann
renewed his objection to Bridges’s testimony at trial, and the circuit court again denied his

Baumann is the biological grandfather of V.B. V.B. and E.S. are half-sisters and
share the same mother. E.S., who was thirteen years old at the time of the trial, testified
that her mother, Erika Shirley, was previously in a relationship with Baumann’s son,
Adam. E.S. first started spending time around Baumann when she was nine or ten years
old. During that time, she would occasionally stay the night with Baumann and his wife.
She testified that Baumann would come into her room at night as she was getting ready for
bed or after she was already in bed. E.S. explained that she would be in the bedroom by
herself. Baumann would sit on her bed and tell her to take off her shorts and underwear or
lift up her nightgown. He would touch her on her breasts and her vagina underneath her
clothes. E.S. also testified that Baumann would lick her vagina. When he did this, her
clothes would be around her ankles, and his hands would be on her knees, spreading her
legs apart. E.S. stated that Baumann also made her touch his penis while in the living room
when no one else was home. She testified that he told her not to tell anyone or both of
them would get into trouble.

Bridges testified at trial that when she was thirteen or fourteen,1 Baumann would
come into her room, caress her on the arm, and touch her vagina, which eventually led to
digital penetration. Bridges also testified that Baumann had vaginal intercourse with her
when she was fourteen or fifteen, that Baumann made her masturbate him, and that he
made her perform oral sex on him. She explained that one time after intercourse,
Baumann told her she was beautiful. Bridges testified that the abuse stopped when she was
sixteen and she had her first boyfriend; Baumann solicited her one last time to engage in
sexual activity with him and then she could do whatever she wanted to with her boyfriend.

At trial, the State directed Detective Hanna to read into evidence a portion of the
Child Safety Center (CSC) interview of E.S., which included the allegation that Baumann
had been accused of touching “his other granddaughters.” The circuit court sustained
Baumann’s objection to this testimony but did not grant a mistrial sua sponte in the
absence of a request from Baumann.
The circuit court granted Baumann’s directed-verdict motion only on the rape
count based on a lack of evidence of penetration of E.S. and denied Baumann’s directed
verdict motion as to the remaining count of sexual assault in the second degree. The jury
convicted Baumann of sexual assault in the second degree, and the circuit court sentenced
him to a term of imprisonment of twenty years in the ADC and imposed a fine of $15,000
pursuant to a sentencing order filed on October 17, 2017. Baumann filed a timely notice
of appeal, and this appeal followed.

II. Rule 404(b)
Challenges to an evidentiary ruling are reviewed under the abuse-of-discretion
standard. Hortenberry v. State, 2017 Ark. 261, 526 S.W.3d 840. The abuse-of-discretion
standard 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.; Holland v. State, 2015 Ark. 341, 471 S.W.3d 179. Additionally, an
evidentiary decision will not be reversed absent a showing of prejudice. Hicks v. State, 2017
Ark. 262, 526 S.W.3d 831.

Pursuant to Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show 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 the
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. First, courts “require that there be a sufficient degree of similarity
between the evidence to be introduced and the sexual conduct of the defendant.” Id.
Physical similarities between the alleged victim and the 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. Second, 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 4.2
Third, evidence admitted pursuant to Rule 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.
A. Similarity of Allegations
The pedophile exception has been used in cases in which there was substantial
similarity between the prior allegations and the newly charged conduct. See Woods v. State,
2013 Ark. App. 739, at 8, 431 S.W.3d 343, 348 (holding that a prior conviction for
molesting the defendant’s minor stepdaughter when she was isolated, and threatening her
to not report the abuse, was admissible when he was later charged with the same conduct
with another stepdaughter); see also Eubanks, 2009 Ark. 170, at 5–6, 303 S.W.3d at 453
(concluding evidence is allowed when the defendant was accused of digitally penetrating
two girls who were under his care and similar in age at the time the abuse occurred).
In Hortenberry, supra, substantial similarity was found when the victim and two
witnesses, all of whom were within two years of age of each other, testified that the
defendant performed oral sex on them when they stayed at his house. Each testified that
she had been given alcohol or a “white pill” to help her sleep, that she slept on the
defendant’s living room floor, and that he bought various gifts for her. Hortenberry., 2017
Ark. 261, at 11, 526 S.W.3d at 847. Substantial similarity also was found when two twelve
to fourteen-year-old boys testified that the defendant reached out to them as a friend of the
family, took them places, bought them gifts, showed them pornography, and forced
masturbation and oral sex on them at his home. Kelley v. State, 2009 Ark. 389, 327 S.W.3d
373. The Arkansas Supreme Court has relied on discernible patterns of how the abuse
develops or occurs, holding there was substantial similarity when the defendant spoke to
his victims in an attempt to rationalize his behavior in some way. See Flanery v. State, 362
Ark. 311, 208 S.W.3d 187 (2005).
Conversely, the pedophile exception was not applicable when the defendant was on
trial for engaging in anal sex with a four- to eight-year-old female and the prior act being
introduced was his alleged genital touching and oral sex with his twelve- to fourteen-year
old half brother that occurred seventeen years prior to the offense. Efird v. State, 102 Ark.
App. 110, 282 S.W.3d 282 (2008).
Baumann argues that this case is more like Efird than any case in which substantial
similarity was found. Baumann asserts that the substantive nature of the allegations of
Bridges and E.S. are fundamentally different with Bridges’s allegations being far more
serious and violative than E.S.’s allegations. Baumann was on trial for class B felony sexual
assault, and the jury was presented with Bridges’s testimony about the alleged incestuous
rape of his teenage daughter. He argues that Bridges’s “404(b) evidence” was drastically
dissimilar and far more severe than the actual conduct for which Baumann was on trial
with no similar pattern of abuse.
Baumann also argues that there is no “class of persons.” E.S. testified that she had
been ten years old at the time of the alleged acts, and it is undisputed that she is not
related to Baumann. Conversely, Bridges’s testimony was inconsistent as to her age during
the alleged abuse—ranging from between the ages of ten and sixteen years of age—and she is
Baumann’s biological daughter. Baumann argues that there is a difference between a
prepubescent ten-year-old girl and a thirteen- to sixteen-year-old girl who is in the middle of
puberty or is already postpubescent. He also claims the biological relationship between
Bridges and Baumann is important, because it cannot be disputed that there is a difference
between a sexual offense against a person in general versus against a blood relative.
We disagree and hold that the evidence of Baumann’s sexual abuse of Bridges is
sufficiently similar to his sexual abuse of E.S. Our supreme court has consistently
considered similarities in age and gender of the victims to be demonstrative of a depraved
sexual instinct, such that the pedophile exception is applicable. E.g., Kelley, supra (victims
were twelve- to fourteen-year-old males at the time of the abuse). The court has also not
required that the sexual acts be identical to be permissible under the pedophile exception.
E.g., Fields, 2012 Ark. 353, at 8.
Specifically, in Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008), our supreme
court held that the pedophile exception applied when Lamb occupied a caregiver role for
both the victim and witness and that the sexual act—oral sex—was identical. And in Flanery,
supra, the court held that evidence that Flanery inappropriately touched his daughter was
properly admitted under the pedophile exception in his conviction of ten counts of rape of
another girl because it showed a proclivity toward molesting young girls.
The Arkansas Supreme Court has also found that testimony fit into the pedophile
exception when it described a particular method for finding opportunity to make sexual
contact with a victim. See, e.g., Jefferies, 2014 Ark. 239, at 7–8, 434 S.W.3d at 895 (three of
four victims testified to having been awoken by Jefferies as he performed oral sex on them).

The pedophile exception also was met in Holland, supra, when the sexual abuse differed
from victim to victim, but Holland’s method of befriending young boys, combined with
the fact that the abuses occurred in his home or a place under his control and involved
crude remarks about the boys’ anatomy, demonstrated acts of a similar nature. Id., 2015
Ark. 341, at 9–10, 471 S.W.3d at 185–86; see also Hernandez v. State, 331 Ark. 301, 308,
962 S.W.2d 756, 760 (1998) (testimony that, although dissimilar to the charged act,
showed accused’s attraction to young girls’ physical characteristics and proclivity toward
sexual abuse of young girls).
We find no merit in Baumann’s argument that the alleged abuse was “drastically
dissimilar.” Both Bridges and E.S. testified that (1) when the abuse occurred, Baumann was
in a supervisory role; (2) they were the only ones staying in their bedrooms when the abuse
occurred; (3) Baumann would enter their bedrooms at night, and the abuse would occur
near or on their beds; (4) Baumann initiated the abuse by rubbing them on the vagina
inside their clothes; (5) as time progressed, Baumann would have them touch his penis; (6)
eventually, oral sex occurred.
The similarities in the testimony demonstrate that Baumann preyed on the girls in
their bedrooms at night. The pattern of his abuse was similar in that he began by caressing
them and then rubbing their vaginas before progressing to oral sex as his victims got older.
To the extent that Baumann argues the abuses were dissimilar because of an age difference,
he is wrong. Baumann abused E.S. when she was ten years old. Although Bridges initially
said she was fourteen or fifteen when the abuse happened, she consistently stated that the
abuse started in the fourth or fifth grade. That would mean the abuse started when Bridges
was between ten and twelve years old, a fact that she acknowledged during cross
examination. Thus, when the abuse began, both E.S. and Bridges were prepubescent girls3
and similar in age.
Even viewing the testimony in the light most favorable to Baumann, the age
difference still falls within that which the court has permitted for the pedophile exception
to apply. See Fields, 2012 Ark. 353, at 7 (permitting a six-year difference as the victim was
seven when her abuse occurred and one of the witnesses was thirteen when his abuse

B. Remoteness of Allegations
The second requirement for 404(b) evidence is that it must not be too separated in
time, to make the evidence unduly remote. Holland, 2017 Ark. 261, 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. In its application of Rule
404(b), our supreme court has suggested that this requirement, regardless of the time span
involved, is automatically met if the first requirement of similarity is satisfied; i.e., if the
acts are substantially similar, then the act can never be remote. See Lamb, supra.

Baumann notes that here, Bridges was forty-one years old at trial, and she testified
that she was raped by Baumann from the ages of approximately thirteen to sixteen years
old. Accordingly, the allegations were between twenty-five and twenty-eight years old at the
time of this trial, which he maintains makes them unduly remote and unconnected to the
charged conduct against E.S. Baumann argues that Bridges’s allegations were so separated
in time that even she could not fully or accurately recall the details of the alleged abuse.
Acknowledging that the evidence must not be too separated in time, to make it
unduly remote, see, e.g., Brown v. State, 2012 Ark. 399, at 7, 424 S.W.3d 288, 293, the State
points out that under the reasonableness standard, the circuit court has sound discretion
over the matter and will be overturned only when it is clear that the evidence has no
connection with any issue in the present case. E.g., Jeffries, 2014 Ark. 239, at 7, 434 S.W.3d
at 895.
The remoteness-in-time element is but one of the factors considered in determining
similarities between the evidence to be introduced and the defendant’s sexual conduct.
Morrison v. State, 2011 Ark. App. 290, at 4–5. Sufficiently similar evidence may be admitted
“even when a significant time gap exists.” Allen v. State, 374 Ark. 309, 317, 287 S.W.3d
579, 585 (2008). In certain circumstances, appellate courts have allowed evidence from
many years past to be introduced for these purposes. Id. (holding that prior-rape evidence
that was more than forty-years old was relevant and had a connection to the case at bar); see
also Butler v. State, 2010 Ark. 259, at 3 (holding that evidence that was a minimum of
twenty-one-years old was admissible); see also Brown v. State, 2010 Ark. 420, 378 S.W.3d 66
(allowing evidence of alleged sexual assault that occurred thirty-four years earlier); Rohrbach
v. State, 374 Ark. 271, 277–78, 287 S.W.3d 590, 595–96 (2008) (upholding admission of
testimony under pedophile exception of prior acts that occurred between nineteen and
twenty-four years earlier); Tull v. State, 82 Ark. App. 159, 163, 119 S.W.3d 523, 525 (2003)
(holding thirty-year-old evidence admissible).
Here, Baumann’s abuse against Bridges began approximately thirty years prior to the
abuse of E.S. This is within the time frame permitted by appellate courts. Because the
abuse suffered by Bridges was similar to that of E.S., the circuit court was correct in finding
that it was relevant and had a strong connection with the issue in the present case. We
hold that the circuit court did not abuse its discretion by permitting Bridges’s testimony
pursuant to the pedophile exception.
III. Rule 403
Even if evidence of prior allegations of child abuse meets the criteria for the
pedophile exception to Rule 404(b), Baumann notes that the evidence 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.
He argues that Bridges’s testimony had essentially no probative value and severely
prejudiced him through inflammation and confusion of the jury.

As discussed above, the limited purpose for which Bridges’s testimony was admitted
was under Rule 404(b) to show the proclivity of Baumann to engage in “specific acts” with
a certain class of persons. Baumann argues that the only possible construction of Bridges’s
testimony as being probative is to say that the jury had to decide whether E.S. was telling
the truth about her allegations, so the fact that Baumann is accused of raping his own
teenage daughter almost thirty years ago supports that belief. He claims that such an
argument flies in the face of the clear language and spirit of Rule 404(b) that a person’s
prior bad acts may not be used solely to prove that he acted in conformity therewith for the
currently charged crime. Accordingly, he urges that Bridges’s testimony had little to no
probative value given the actual issue submitted to the jury.
Further, Baumann contends that Bridges’s testimony unfairly inflamed the jury
because of the gravity of her allegations that he incestuously raped his own biological
daughter. Baumann asserts that as soon as the jury heard Bridges’s accusations, he was no
longer on trial for anything he might have done to E.S.; rather, he was, in effect, on trial
for Bridges’s thirty-year-old, uncharged, uncorroborated allegations.
We decline to review Baumann’s Rule 403 argument on appeal because he failed to
obtain a clear ruling from the circuit court as to whether the probative value of the
witness’s testimony was substantially outweighed by the danger of unfair prejudice to him.
Appellants must obtain a ruling on whether Rule 404(b) evidence should have been
excluded under Rule 403 to preserve the issue for appeal. E.g., Duvall, 2018 Ark. App. 155,
at 9–10, 544 S.W.3d at 112. Baumann initially made a Rule 403 objection in conjunction
with his Rule 404(b) objection at the pretrial hearing on the issue. The circuit court ruled
that the evidence was admissible for Rule 404(b), but it specifically reserved a ruling on
whether the evidence was admissible for Rule 403. At trial, Baumann made no further
mention of a Rule 403 objection. Prior to Bridges’s testimony, Baumann renewed his Rule
404(b) objection and sought and received a limiting instruction on Rule 404(b). The circuit
court’s ruling indicated that he renewed only his Rule 404(b) objection. Neither
Baumann’s abstract nor his brief indicate that the circuit court ruled on his Rule 403
objection. Additionally, because the circuit court never made a Rule 403 finding, the
required balancing analysis never occurred. E.g., Cluck, 365 Ark. at 175, 226 S.W.3d at 787
(the circuit court must conduct a probative versus prejudicial weighing with respect to
evidence if defense considers the weighing to be important or legally required to preserve
the Rule 403 issues for appeal).
IV. Mistrial Analysis
Our standard of review regarding mistrials was reiterated in Williams v. State, 2012
Ark. App. 310, at 7–8, 420 S.W.3d 487, 491 (internal citations omitted):
Declaring a mistrial is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. The circuit court should resort to mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Because the circuit court is in a better position to determine the effect of a remark on the jury, it has wide discretion in granting or denying a motion for a mistrial, and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the movant. In reviewing a mistrial motion, we look at all developing circumstances that surround an incident to determine whether a manifest abuse of discretion occurred.

Baumann argues that improper, bad-faith questioning of Detective Hanna by the
State resulted in prejudice to him, thus depriving him of the fundamental right to a fair
trial. Despite acknowledging that his counsel did not ask for a mistrial, Baumann claims
that this court may still grant him relief. Generally, Arkansas does not follow the “plain
error” rule, and “an argument for reversal will not be considered in the absence of an
appropriate objection in the circuit court.” Wicks v. State, 270 Ark. 781, 785–87, 606
S.W.2d 366, 369–70 (1980) (approving four limited exceptions to the general rule
requiring a contemporaneous objection to preserve an issue for review: (1) a circuit court’s
failure to bring a matter essential to consideration of the death penalty to the jury’s
attention; (2) when error is made by the circuit court when counsel has no knowledge of
the error; (3) when the circuit court has a duty to intervene and correct flagrant and highly
prejudicial errors; and (4) under Ark. R. Evid. 103(d) providing that appellate courts are
not denied review of errors affecting substantial rights even if not brought to the attention
of the circuit court).
At the close of cross-examination, Baumann’s counsel asked Detective Hanna if he
was aware that E.S.’s mother, Shirley, had previously lied under oath making false sexual
assault allegations. Detective Hanna responded that he was not aware of that fact. On
redirect examination, the State asked Hanna if any information regarding Shirley and her
allegations against her own father would have made the case against Baumann any stronger
to justify his not following up on those leads during his investigation. The State then
changed the line of questioning to the CSC interview of E.S. Showing Detective Hanna

the transcript of the interview of E.S., which he did not perform himself, the State
instructed Detective Hanna to read a portion of the transcript that was a question being
asked of E.S: “Okay. So, the interviewer says, ‘Did your mom tell you about Tanya
touching his real daughter and his other granddaughters before or after you told your mom
and dad about—and then—.’” At that point, Baumann’s counsel requested a bench
conference. Before counsel made an objection, the circuit court remarked that the
questioning was improper and was not supposed to be introduced, and even asked why
Baumann’s counsel did not object sooner before he had read the transcript out loud. The
State stated, “I won’t even go there,” but Baumann claims that it was too late and that the
line of questioning was flagrant misconduct that was highly prejudicial.
Baumann urges that the third and fourth Wicks exceptions apply. The third Wicks
exception is a narrow one that has thus far been applied only in cases in which the
fundamental right to a jury trial is at issue. Rackley v. State, 371 Ark. 438, 440, 267 S.W.3d
578, 580 (2007). He urges that when a prosecutor makes an improper remark that is
“flagrant” and “highly prejudicial in character,” the circuit court has an independent duty
to intervene and correct such error by either an admonition to the jury or declaring a
mistrial. Wicks, 270 Ark. at 786, 606 S.W.2d at 369–70.
We disagree. Although Baumann did make a contemporaneous objection, he failed
to move for a mistrial after his objection. No Wicks exception applies; specifically, the third
exception has been applied very rarely to matters such as the right to a twelve-person jury;
violations of Ark. Code Ann. § 16-89-125(e) (Repl. 2006), see Grinning v. City of Pine Bluff,

322 Ark. 45, 50, 907 S.W.2d 690, 692 (1995), and statements by a prosecutor in voir dire
that have the effect of shifting the burden of proof, see Anderson, 353 Ark. at 401, 108
S.W.3d at 603; cf. Chunestudy v. State, 2012 Ark. 222, at 10, 408 S.W.3d 55, 62 (holding
arguments on evidence by the prosecution in closing do not fall under the third Wicks
exception). The third Wicks exception has not been applied to consider possible
prosecutorial errors in relation to cross-examination, E.g., Vaughn v. State, 338 Ark. 220,
992 S.W.2d 785 (1999). The fourth exception is even more narrow and only applies to a
ruling that admits or excludes evidence. Wicks, 270 Ark. at 787, 606 S.W.2d at 370. Our
supreme court has long held that is it not enough to merely object—one must also move for
a mistrial. Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983).

Outcome: Accordingly, we hold that the circuit court did not err in failing to grant a mistrial sua sponte in the absence of a request by Baumann.

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