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Mouton v. State

Supreme Court of Arkansas

May 24, 2018

CARL MOUTON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CR-16-3062] HONORABLE HERBERT WRIGHT, JUDGE

          Jeff Rosenzweig, for appellant.

          Leslie Rutledge, Att'y Gen., by: Amanda Jegley, Ass't Att'y Gen., for appellee.

          JOSEPHINE LINKER HART, Associate Justice.

         Appellant Carl Mouton, was convicted in the Pulaski County Circuit Court of two counts of sexual assault in the second degree. On appeal, Mouton argues that he should have been permitted to present evidence of the sexual nature of the relationship between the victim, KV, and another minor, EP. Mouton argues that the exclusion of this evidence did not comport with Arkansas Rule of Evidence 411, and that the exclusion violated his constitutional right to present a defense. The State has also appealed, requesting that this court declare error regarding the trial court's refusal to allow Brittany Perry from testifying against Mr. Mouton as a 404(b) witness.

         I. Background

         Carl Mouton was the band director for Oak Grove High School and then continued to serve as band director after Oak Grove High School became Maumelle High School in 2011. The high school's band program saw great success during Mouton's tenure, which developed an environment where both parents and students alike took pride in the school band and participated in its activities through a booster program.

         KV attended Maumelle High School and played in the band from 10th through 12th grade. She graduated early at sixteen years old and was attending classes as a freshman in college at the time of the trial below. KV, like many other students, had a very close and friendly relationship with Mouton. KV and Mouton would regularly hug each other at school and band functions. Beginning in November 2014, KV began a dating relationship with another female student in the band, EP. At some point, KV's and EP's parents found out about their relationship, and they attempted to put an end to it by having KV, EP, and certain school officials sign an agreement that KV and EP would not sit together or hang out together at school unsupervised; however, Mouton did not force the girls to abide by the agreement when they were under his supervision. By the date of the pretrial hearing, May 8, 2017, KV and EP were no longer in a dating relationship.

         During this time, EP was living in Little Rock, but she was able to attend Maumelle High School because her mother, Diedre Pippenger, had agreed with another individual, Leonard McKinney, who resided in Maumelle and with whom Pippenger reportedly had a close relationship, to represent to the public that EP was living at McKinney's residence. McKinney was very involved in the band's booster program and has a child of his own who had been in the band.

         According to KV's pretrial testimony, during finals week of her sophomore year, KV and Mouton gave each other an end-of-the-year goodbye hug, and Mouton grabbed KV's bottom during their embrace. KV testified that Mouton continued to periodically grab her bottom when the two would hug throughout the remainder of her time at Maumelle High School. She also testified that in May 2015, Mouton pulled her breast out of her shirt and placed his mouth over her breast for approximately 15 seconds. KV reportedly told EP about the incident via text message two weeks later in July 2015 and made EP promise to keep it a secret. No evidence was presented regarding any other communicating or reporting of the incident at the time.

         Over the course of the next year, Mouton's relationship with McKinney deteriorated due to disagreements about the management of the band. Mouton eventually "fired" (or was in the process of firing) McKinney from the booster club during the week of May 5-11, 2016. Mouton's and McKinney's disagreements apparently manifested in a "blowup" at a meeting at the school on May 5, 2016, for which both EP and McKinney were present and from which McKinney drove EP home. EP testified that, the next evening, she told her mother about the incident KV had described approximately a year prior. Pippenger herself recalled EP disclosing what KV had said about Mouton the same night McKinney drove her home from the meeting.

         Pippenger testified that, for a day or two, she did not do anything in response to EP's disclosure, and she then called McKinney looking for advice. McKinney gave Pippenger the telephone number for the child-abuse "Hot Line, " which Pippenger reportedly called a couple of days later. The ensuing investigation led to Mouton being charged with, and later convicted of, two counts of second-degree sexual assault against KV.

         II. Issues on Appeal and Applicable Legal Authority

         The issues on appeal stem from the trial court's decisions with respect to two pretrial motions. The first was Mouton's "rape-shield" motion, which sought to introduce evidence of the sexual nature of KV's relationship with EP. The trial court denied this motion, ruling that Mouton could present evidence that KV and EP were close friends, but not evidence of their previous sexual relationship. Mouton appeals this decision, arguing that the evidence should not have been excluded under Rule 411, and that its exclusion violates his constitutional right to present a defense. The second pretrial motion was Mouton's motion to exclude Rule 404(b) testimony from one of the State witnesses, Brittany Perry. Perry would have testified that she and Mouton had engaged in physical interactions while Perry was a high school student, some eighteen years prior, that were similar to those alleged to have occurred between Mouton and KV. The trial court granted this motion, ruling that Perry would not be permitted to testify at trial. The State appeals this decision, seeking either (1) if this court reverses the trial court's decision pursuant to Mouton's arguments, a ruling on this issue to bring back to the trial court on remand, or (2) if this court affirms the trial court's decision with respect to Mouton's arguments, a "declaration of error" for the purported benefit of the bench and the bar.

         We begin with Mouton's arguments, both of which deal with Rule 411, Arkansas's rape-shield rule. Some of our prior cases have addressed these arguments in tandem, so to obviate the need for multiple discussions of the same cases, we will first review all the applicable legal authorities and then apply the relevant provisions of those legal authorities to Mouton's arguments, one at a time. Mouton's first argument is that evidence of the sexual nature of KV and EP's relationship should not have been excluded under the procedure and analysis set forth in Rule 411(c). Rule 411 provides in relevant part as follows:

(b) In any criminal prosecution under Ark. Code Ann. § 5-14-101 et seq. or § 5-26-202, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim's prior sexual conduct with the defendant or any other person, evidence of a victim's prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations 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.
(c) Notwithstanding the prohibition contained in subsection (b) of this rule, evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim's prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of the evidence is determined in the following manner:
(1) A written motion shall be filed by the defendant with the court at any time prior to the time the defense rests stating that the defendant has an offer of relevant evidence prohibited by subsection (b) of this rule and the purpose for which the evidence is believed relevant.
(2) (A) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the court may for good cause permit.
(B) A written record shall be made of the in camera hearing and shall be furnished to the appellate court on appeal.
(C) If, following the in camera hearing, the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, the court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence.

         The general purpose of the rape-shield rule "is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant's guilt." McCoy v. State, 2010 Ark. 373, at 9, 370 S.W.3d 241, 247. Subsection (b) of Rule 411 identifies several types of evidence that will be inadmissible unless the admissibility of the evidence is established through the procedure and analysis set forth in subsection (c), by showing that the evidence is relevant and that its probative value outweighs its prejudicial or inflammatory effect.

         Interpreting these provisions in Marion v. State, this court ruled that a defendant can present to the jury evidence of a victim's prior sexual conduct that would otherwise be prohibited by the rape-shield rule if the defendant can establish a legitimate "evidentiary hypothesis underpinned by a sufficient statement of facts." 267 Ark. 345, 348-49, 590 S.W.2d 288, 290 (1979). There, the defendant was charged with rape, and he filed a pretrial motion for an in camera hearing to determine the admissibility of the victim's prior sexual conduct. Id. at 346, 590 S.W.2d at 289. The trial court denied the defendant's motion, and the defendant then brought an interlocutory appeal of the trial court's decision to deny his motion. Id. This court made two important observations. First, with respect to ...


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