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State v. Cossio

Supreme Court of Arkansas

November 2, 2017



          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellant.

          James Law Firm, by: Michael Kiel Kaiser and Bobby R. Digby II, for appellee.


         The State of Arkansas brings this interlocutory appeal from the Pulaski County Circuit Court's order ruling that testimony regarding the victim's prior sexual conduct with a third party would be admissible pursuant to the rape-shield statute, Arkansas Code Annotated section 16-42-101(c) (Repl. 1999), and Arkansas Rule of Evidence 411(c)(2)(C) (2016). For reversal, the State argues that the circuit court erred by finding that this evidence was relevant where appellee Miguel Cossio was charged with raping the victim while she was physically helpless. Because the circuit court committed a manifest abuse of discretion, we reverse and remand.

         On September 10, 2015, the State charged Cossio with the rape of R.S. in violation of Arkansas Code Annotated section 5-14-103(a)(2)(A) (Repl. 2013), which provides that a person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is incapable of consent because he or she is physically helpless. "Physically helpless" means that a person is unconscious, physically unable to communicate a lack of consent, or rendered unaware that a sexual act is occurring. Ark. Code Ann. § 5-14-101(7)(A)-(C) (Repl. 2013). The felony information alleged that the offense occurred on July 10, 2015.

         Cossio filed a pretrial motion to admit evidence of prior sexual conduct of the victim, asserting that the victim had made similar allegations against others in the past and that this evidence was essential to demonstrate her motive and character for truthfulness. Cossio also filed a notice of his intent to raise the affirmative defense of mistake of mental condition of the victim.

         A hearing on these motions was held on January 9, 2017. R.S. testified that she was employed as an exotic dancer in July 2015. On the evening of July 8, 2015, approximately twenty-four hours before the alleged rape occurred, R.S. indicated that Cossio and his acquaintance, Shauna Harrelson, had come over to R.S.'s apartment because Harrelson was interested in becoming an exotic dancer and wanted R.S. to teach her some dance techniques.[1] According to R.S., the three of them drank alcohol, Harrelson tried on a few of R.S.'s outfits, and the two women gave each other lap dances. R.S. stated that Cossio was not involved in the lap dances but that she later learned that he had taken pictures of them with her phone. These pictures were also introduced at the hearing. R.S. testified that no other sexual activity occurred between her and Harrelson on the evening of July 8, and she further indicated that she did not have any sexual contact with Cossio that night.

         R.S. stated that the next day, on July 9, 2015, she had a cast on her arm and stitches removed, and she indicated that she had taken oxycodone beforehand as prescribed by her doctor. Later that evening, Harrelson and Cossio again visited R.S.'s apartment. R.S. explained that Harrelson had only wanted to "drink and hang out" on the night of July 9, and R.S. stated that she did not remember giving anyone a lap dance that night. R.S. agreed that she did not remember many details from that evening and that she had told police that she had passed out from alcohol and from not enough sleep the night before.

         Cossio argued that the evidence of what had occurred at R.S.'s apartment on the evening prior to the rape was relevant to his state of mind on the night of the rape, as well as to R.S.'s credibility. The State, however, contended that this evidence was not relevant to the offense as charged and that it was also more prejudicial than probative.

         The circuit court took the issue under advisement at the conclusion of the hearing and subsequently entered an order on January 19, 2017. The court stated that the pictures of R.S. and Harrelson from the evening of July 8, 2015, would not be admissible under the rape-shield statute and Arkansas Rule of Evidence 411. However, the court ruled that Cossio would be permitted to elicit testimony concerning the events of that evening "for the limited purpose of showing the prelude to the night of the alleged activity, as part of the res gestae of the case." Although the circuit court stated that Cossio could not use this evidence to demonstrate that the victim consented to the charged crime, the court found that the events of July 8, 2015, were "essential to show the relationship between the parties" and that the probative value of this evidence outweighed its inflammatory or prejudicial nature. The court further ruled that Cossio would not be permitted to raise the affirmative defense of mistake of mental condition because consent was not a defense to the rape of a physically helpless victim. The State filed a timely notice of interlocutory appeal from the circuit court's order on January 27, 2017.

         We first address whether we have jurisdiction to hear the State's appeal in this case. Unlike that of a criminal defendant, the State's right to appeal is limited to the provisions of Rule 3 of the Arkansas Rules of Appellate Procedure-Criminal. State v. Colvin, 2013 Ark. 203, 427 S.W.3d 635. Pursuant to Rule 3(a)(3), the State may take an interlocutory appeal from a pretrial order granting a motion to allow evidence of the victim's prior sexual conduct. Ark. R. App. P.-Crim. 3(a)(3) (2017). Although we will typically consider an appeal by the State only when the correct and uniform administration of the criminal law requires review by this court, an appeal from an adverse ruling under the rape-shield statute is automatically appealable without such an analysis. Ark. R. App. P.-Crim. 3(d); State v. Parker, 2010 Ark. 173.

         Regarding the merits of the appeal, the State contends that the circuit court erred by ruling that evidence of R.S.'s sexual conduct from the day prior to the alleged rape would be admissible at Cossio's trial. Pursuant to the rape-shield statute, Arkansas Code Annotated section 16-42-101(b), as well as Arkansas Rule of Evidence 411(b), "opinion evidence, reputation evidence, or evidence of specific instances of the victim's prior sexual conduct with the defendant or any other person . . . is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose." However, the circuit court has discretion to admit this sort of evidence if, after a pretrial hearing, the court finds that the evidence is relevant to prove a fact in issue and that the probative value of the evidence outweighs its inflammatory or prejudicial nature. Ark. Code Ann. § 16-42-101(c); Ark. R. Evid. 411(c).

         The purpose of the rape-shield statute is to shield victims of rape or sexual abuse from the humiliation of having their sexual conduct, unrelated to the pending charges, paraded before the jury and the public when such conduct is irrelevant to the defendant's guilt. State v. Parker, supra. The circuit court is vested with a great deal of discretion in determining whether evidence is relevant, and we will not reverse the circuit court's decision as to the admissibility of rape-shield evidence unless its ruling constitutes clear error or a manifest abuse of discretion. Vance v. State, 2011 Ark. 392, 384 S.W.3d 515.

         As the State asserts, we have held that when consent is not an issue, the victim's sexual conduct with a third person is entirely collateral and therefore not relevant. Vance, supra; Parker, supra. The State argues that because Cossio is charged with raping R.S. while she was physically helpless and incapable of consent, R.S.'s sexual conduct the ...

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