FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO.
60CR-15-2855] HONORABLE HERBERT WRIGHT, JUDGE
Rutledge, Att'y Gen., by: Rebecca Kane, Ass't
Att'y Gen., for appellant.
Law Firm, by: Michael Kiel Kaiser and Bobby R. Digby II, for
COURTNEY HUDSON GOODSON, ASSOCIATE JUSTICE.
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.
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
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.
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. 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.
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
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.
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.
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.
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).
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
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 ...