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Herren v. State

Court of Appeals of Arkansas, Division IV

October 31, 2018



          John Wesley Hall and Sarah M. Pourhosseini, for appellant.

          Leslie Rutledge, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.


         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 ...

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