APPEAL
FROM THE CLEVELAND COUNTY CIRCUIT COURT [NO. 13CR-15-33]
HONORABLE DAVID W. TALLEY, JR., JUDGE
John
Wesley Hall and Sarah M. Pourhosseini, for appellant.
Leslie
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
MIKE
MURPHY, JUDGE
On
November 21, 2017, a Cleveland County jury found appellant
Phillip Anthony Herren guilty of rape and sentenced him to
forty years' incarceration in the Arkansas Department of
Correction. On appeal, he argues that the circuit court
abused its discretion when, under the rape-shield statute, it
excluded some evidence regarding the victim's sexual
behavior that occurred shortly before the charged conduct. He
further argues that this denied him the due-process right to
present a complete defense. We agree that the evidence was
improperly excluded and therefore reverse and remand for a
new trial.
A
summary of the evidence, as it was presented to the jury,
follows. On May 5, 2015, several teenage girls, including the
victim, BLR, [1] were spending the night at the house of
their friend, KB. KB lived with her mother and her
stepfather, Herren. Testimony from the trial revealed that
BLR arrived at Herren's house around 8:00 p.m., smoked
marijuana with Herren and his wife, and then participated in
a "shot-drinking contest" with Herren. Over the
course of the next hour, BLR then drank about ten or eleven
shots of Crown Royal. BLR testified that she had no memory of
anything that happened after about 10:00 p.m.
BM, one
of the friends there, testified that she witnessed BLR drink
about ten or eleven shots of whiskey, that BLR was drunk and
falling over the bar stools, and that Herren was holding BLR
up and grabbing her breasts. BM saw Herren pick BLR up and
carry her into the living room from the kitchen. She
testified that BLR was "drunk and knocked out." At
this point, BM ran back to KB's bedroom to tell the other
girls. One of the other girls, HM, then went to the bathroom
and started videoing the encounter from under the door.
The
girls then sneaked into the living room, hid behind a sofa,
and watched Herren pull BLR's pants down and watched him
inserting his fingers into BLR's vagina. At one point the
girls came out from behind the couch and were standing by
BLR, taking photos and videos while Herren was touching BLR.
HM testified that, while she was videoing, BLR was slumped
over, drunk, and passed out. The jury saw some of the photos
and videos the State was able to recover from the girls'
mobile phones.
Herren's
and KB's testimony differed slightly from that of BM and
HM. KB said that BLR's eyes were open most of the time
and that BLR seemed "pretty conscious like she knew it
was happening." Herren testified that BLR had a buzz but
was "definitely conscious." He said that she knew
what she was doing and told him to do it.
BLR
testified that, the next morning, she woke up "feeling
like death" and did not remember what had happened. The
other girls told her what happened and showed her the photos
and videos they took. BLR became upset and asked to be taken
home. After telling her mother what happened, BLR went to
Arkansas Children's Hospital for a rape test and
evaluation.
Herren
was convicted of rape and timely appeals, and the issues in
this appeal revolve around evidence not yet summarized. This
evidence was excluded from trial and not considered by the
jury. Before trial, Herren had filed an extensive motion and
incorporated brief for a rape-shield hearing with offers of
proof on twenty-five areas of testimony he wanted to develop
at trial. He received unfavorable rulings in almost every
area; however, on appeal, he narrows his discussion to
BLR's sexual conduct with Herren on the night of the
alleged rape.
Specific
to this appeal, the circuit court ruled that Herren would not
be allowed to introduce evidence that before Herren digitally
penetrated BLR, she was asking him for sex, masturbating in
front of him, offering him oral sex, attempting to undo his
shorts, and touching his penis through his shorts.
Specifically, the circuit court ruled that "[t]his is
not admissible under A.C.A. Sec. 16-42-101 unless relevancy
has been determined. Whether this assertion is true or not,
the Court finds it is not relevant and the prohibition of
A.C.A. Sec. 16-42-101(b) applies." On appeal, Herren
argues that this evidence was improperly excluded.
The
crime of rape encompasses sexual intercourse or deviate
sexual activity with a person who is incapable of consent
because she is physically helpless or mentally incapacitated.
Ark. Code Ann. § 5-14-103(a)(2) (Supp. 2017). Deviate
sexual activity is "any act of sexual gratification
involving . . . the penetration, however slight, of the labia
majora . . . of one person by any body member or foreign
instrument manipulated by another person." Ark. Code
Ann. § 5-14-101(1)(B). "Mentally
incapacitated" means that a person is temporarily
incapable of appreciating or controlling her conduct as a
result of the influence of a controlled or intoxicating
substance that renders her unaware a sexual act is occurring.
Ark. Code Ann. § 5-14-101(5)(B). A person is
"physically helpless" under the statute if she is
unconscious, physically not able to communicate, or otherwise
unaware that a sexual act is happening. Ark. Code Ann. §
5-14-101(7).
The
rape-shield statute broadly excludes evidence of prior sexual
conduct. Such evidence is "not admissible by the
defendant . . . to prove consent or any other defense, or for
any other purpose." Ark. Code Ann. § 16-42-101(b)
(1999). The circuit court is vested with a great deal of
discretion in determining whether evidence is relevant and
will not be reversed in deciding the admissibility of
rape-shield evidence unless its ruling ...