State of Arkansas v. Jose Blandin
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SUPREME COURT OF ARKANSAS
No. CR061117
Opinion Delivered May 10, 2007
STATE OF ARKANSAS,
APPELLANT,
VS.
JOSE BLANDIN,
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
NO. CR20061117,
HON. BARRY ALAN SIMS, JUDGE,
APPELLEE,
REVERSED AND REMANDED.
ANNABELLE CLINTON IMBER, Associate Justice
The State brings this interlocutory appeal pursuant to the rapeshield statute, Ark.
Code Ann. § 1642101(c) (Repl. 1999), and Ark. R. App. P.–Crim. 3 (2006). Appellee Jose
Blandin was charged under Ark. Code Ann. § 514103 (Repl. 2006) with the anal rape of
G.C., a nineyearold girl. Prior to trial, Blandin requested a rapeshield hearing pursuant
to section 1642101(c). At the hearing, the circuit court granted the State’s motion to
introduce evidence, under Ark. R. Evid. 404(b) (2006), of G.C.’s statements that, before the
rape, Blandin rubbed on her vagina while she was taking a bath. In response, the defense
requested permission to introduce evidence of G.C.’s allegations of sexual abuse against
three other men in order to show that G.C. obtained her sexual knowledge from a source
other than Blandin. Namely, the defense wished to introduce statements G.C. made
concerning three past incidents in which two men rubbed on her “privates” and another man
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forcibly kissed her. Upon hearing the arguments of counsel and testimony from G.C. and
Detective Marilyn Scott, the investigating officer in the instant case, the circuit court granted
Blandin’s motion. However, the circuit court limited the admission of the evidence to show
(1) the time line of the prior allegations, and (2) the similarity and language that was used
by the victim.
Pursuant to Ark. Code Ann. § 514103(a)(3)(A), “a person commits rape if he or she
engages in sexual intercourse or deviate sexual activity with another person . . . . [w]ho is
less than fourteen (14) years of age.” Generally, when a criminal defendant is charged with
violating section 514103(a)(3)(A) consent is not an issue, and the State must only prove
that (1) the defendant engaged in intercourse or deviate sexual activity with the victim and
(2) the victim was under fourteen (14) years of age at the time of the sexual act. See M.M.
v. State, 350 Ark. 328, 88 S.W.3d 406 (2002).
Pursuant to the rapeshield statute, Ark. Code Ann. § 1642101, a criminal defendant
is barred from introducing certain evidence to prove his or her defense:
(b) [O]pinion 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.
Ark. Code Ann. § 1642101(b) (emphasis added). However, “evidence directly pertaining
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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 trial if the defendant
files a written motion for a rapeshield hearing, and, following the hearing, the circuit court
“determines that the offered proof is relevant to a fact in issue, and that its probative value
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outweighs its inflammatory or prejudicial nature.” Ark. Code Ann. § 1642101(c)
(emphasis added).
The purpose of the rapeshield statute is to protect victims of rape or sexual abuse
from the humiliation of having their personal conduct, unrelated to the pending charges,
paraded before the jury and the public when such conduct is irrelevant to the defendant’s
guilt. Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995). The circuit court is vested with
a great deal of discretion in ruling whether evidence is relevant and admissible under the
exception to the rapeshield statute. Graydon v. State, 329 Ark. 596, 953 S.W.2d 45 (1997).
Accordingly, we will not overturn the circuit court’s decision unless it constituted clear error
or a manifest abuse of discretion. Id.
We have generally held that when consent is not an issue, the victim’s prior sexual
conduct with another person is entirely collateral. See M.M. v. State, supra. Nevertheless,
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Justice Corbin’s concurring and dissenting opinion attempts to circumvent the statutory
scheme of Ark. Code Ann. § 1642101 through its argument that prior sexual conduct of a child
victim is “simply not relevant.” As quoted above, while subsection (b) of that statute generally
prohibits the admission of evidence of a victim’s prior sexual conduct, subsection (c) provides an
exception to that prohibition by way of a rapeshield hearing. The text of section 1642101 does
not exclude child victims from the application of subsection (c). When the victim is a child,
Townsend v. State, infra, simply provides a framework for circuit courts to use in conjunction
with section 1642101(c).
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in our recent opinion in State v. Townsend, 366 Ark. 152, ___ S.W.3d ___ (2006), we
recognized that evidence of a child victim’s prior sexual conduct could be relevant to rebut
the weighty inference that the victim must have received his or her knowledge of sexual
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matters from the alleged encounters with the defendant. See id.
In Townsend, we adopted a fivefactor test from Pullizzano v. State, 155 Wis. 2d 633,
456 N.W.2d 325 (1990), for determining whether evidence of a child victim’s prior sexual
conduct is admissible for the limited purpose of proving an alternative source for the child’s
sexual knowledge. For the evidence to be admissible, the defendant must offer proof
(1) that the prior act clearly occurred; (2) that the acts closely
resembled those of the present case; (3) that the prior act is
clearly relevant to a material issue; (4) that the evidence is
necessary to the defendant’s case; (5) that the probative value of
the evidence outweighs its prejudicial effect.
State v. Townsend, 366 Ark. at 158, ___ S.W.3d at ___ . In adopting the Pulizzano factors,
we stated,
[T]his analytical approach has merit when ruling on the admissibility of a
child’s previous sexual experiences. We also believe that a comparison of the
child’s descriptions of the respective sexual encounters is relevant in cases
such as these, because if a description is given after the first incident but
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Despite any protest to the contrary, the Townsend court clearly explained why a child
victim’s descriptions of prior sexual abuse may be relevant. We stated that a comparison of the
victim’s descriptions of the prior and current sexual abuse could tend to show the victim’s
“degree of sexual knowledge at the time of each incident” and thereby mitigate the assumption
that the victim obtained his or her current sexual knowledge from the defendant. Townsend v.
State, supra, 366 Ark. at 158, ___ S.W.3d at ___ (2006). In fact, Justice Corbin’s concurring
and dissenting opinion cites a portion of our reasoning as to why such evidence may be relevant,
but the dissent omits the very next sentence, which states “[t]he similarity requirement makes it
more likely that the sexual knowledge displayed by a victim in one case was actually derived from
a prior encounter, and that assumption is essential to the defendant’s argument in these
situations.” Id. at 158, ___ S.W.3d at ___ (2006).
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before the second, it provides a basis for assessment and comparison of the
child’s degree of sexual knowledge at the time of each incident. Also, the use
of common or similar terms or phrases by the child in various descriptions
may indicate a congruent similarity of acts in different incidents, and is
therefore relevant. The similarity requirement makes it more likely that the
sexual knowledge displayed by a victim in one case was actually derived from
a prior encounter, and that assumption is essential to the defendant’s argument
in these situations.
State v. Townsend, 366 Ark. at 158, ___ S.W.3d at ___.
The State argues that the evidence of G.C.’s prior allegations does not satisfy the
Townsend test because Blandin never proved that the allegations were relevant to his defense
or even to the act for which Blandin was charged—rape. Blandin, on the other hand, argues
that G.C.’s use of similar language to describe both the prior abuse and her alleged
encounters with him is relevant to show that he did not commit the charged act. Blandin also
argues that because this court has held that the testimony of a rape victim is sufficient to
sustain a rape conviction, see Williams v. State, 331 Ark. 263, 962 S.W.2d 329 (1998),
G.C.’s testimony about the prior allegations is sufficient to prove that the prior allegations
were true and the prior incidents of sexual abuse did actually occur. We agree with the State
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and reverse and remand.
Even assuming, without deciding, that a victim’s testimony as to prior sexual acts is
sufficient to prove that the prior acts actually occurred, the evidence here still does not
satisfy the second factor under Townsend.
In that case, Townsend was charged with
raping his sixyearold stepgranddaughter. See State v. Townsend, supra. When explaining
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At this juncture, we would point out that, even though Justice Corbin calls for this court
to overturn Townsend, neither party has asked us to overrule our decision in that case.
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the acts Townsend performed on her, the victim used graphic descriptions, including
descriptions of positions he placed her in, how he penetrated her, how he disrobed her, where
the abuse took place, and detailed descriptions of Townsend’s penis. Id. For rebuttal, the
circuit court allowed Townsend to introduce the victim’s statements concerning how another
man abused her when she was four years old. Id. In those statements, however, the victim
used vague terms such as “his thingy,” and the victim’s language was unclear as to whether
the prior perpetrator ever penetrated the victim or whether the victim and perpetrator were
clothed when the incident occurred. Id.
We reversed on the second factor— the similarity of the prior incident to the charged
act. Id. After examining the victim’s descriptions of both incidents we concluded that “[the
victim’s] descriptions of the two incidents are substantially dissimilar as to definition and
terminology, which supports the conclusion that [the victim] acquired her current stock of
sexual knowledge after the first incident, and the respective descriptions show little similarity
between the two acts described.” Id. at 159, ___ S.W.3d ___ (2006).
Likewise, here the victim’s descriptions of the prior abuse and the charged act are
very dissimilar. In her allegations of prior abuse, G.C. stated that her Grandpa Larry “rubbed
on her private spot” when she was five (5) years old and, at some point later, her Uncle
James “wiped in her private spot” while she was bathing. Finally, G.C. alleged that in
December 2005, a man named Carlos, who was living in her mother’s home, pushed her onto
the couch and kissed her. However, when she described Blandin’s actions towards her,
G.C. stated that Blandin “rubbed on her privates” while she was bathing and later “stuck his
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privates into [her] butt.”
The acts described by G.C. are strikingly dissimilar. When G.C. described the prior
abusers she simply stated that the men rubbed on her private area, but, with regard to
Blandin, she described a completely different act—anal rape. If anything, the shift in G.C.’s
descriptions from that of a man touching her genitalia to Blandin’s male genitalia penetrating
her anus implies an evolution in her sexual knowledge after her alleged encounters with
Blandin. Moreover, although, G.C. did use similar language and describe similar acts in her
statements regarding both Uncle James and Blandin rubbing on her “privates” during her
bath, the statement concerning Blandin was only introduced as a prior bad act under Rule
404(b) and did not describe the charged crime.
Additionally, the evidence of G.C.’s allegations of prior abuse is inadmissible for
another reason. As previously quoted above, in Townsend we adopted the fivefactor test
because “a comparison of the child’s descriptions of the respective sexual encounters is
relevant in cases such as these, because if a description is given after the first incident but
before the second, it provides a basis for an assessment and comparison of the child’s degree
of sexual knowledge at the time of each incident.” State v. Townsend, 366 Ark. at 158, ___
S.W.3d ___ (2006). In Townsend, we examined statements the victim made to police when
she was four years old and statements she made two years later. See id. In the instant case,
however, no evidence was presented as to G.C.’s statements at the time that the alleged prior
abuse occurred. Instead, the testimony at the hearing only related what G.C. said during her
interview with Detective Scott and not what she said after each alleged incident of prior
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abuse. Thus, the purpose of the test—to compare the similarity of G.C.’s statements made
prior to the occurrence of the charged acts with those statements made after the charged
acts—was frustrated in this case.
Accordingly, we conclude that, under our Townsend analysis, the evidence of G.C.’s
allegations of prior abuse is not relevant to the current rape charge against Blandin. The
circuit court clearly erred in ruling otherwise. Therefore, we reverse the court’s order
granting Blandin’s motion under the rapeshield statute and remand the case for further
proceedings consistent with this opinion.
Reversed and remanded.
CORBIN, BROWN, AND GUNTER, J.J., concurring in part; dissenting in part.
DONALD L. CORBIN, Justice, concurring in part and dissenting in part. While I agree
with the outcome in the present case, I write separately to emphasize my belief that this
court’s decision in State v. Townsend, 366 Ark. 152, ___ S.W.3d ___ (2006), should be
overruled. Originally, I joined in the majority opinion in Townsend, but upon further
reflection, I have come to the conclusion that our decision in that case runs contrary to the
overall intent of the rapeshield statute, codified at Ark. Code Ann. § 1642101(c) (Repl.
1999).
It has long been recognized that the purpose of the rapeshield statute is to shield
victims of rape or sexual abuse from the humiliation of having their sexual conduct,
unrelated to the charges pending, paraded before the jury and the public when such conduct
is irrelevant to the defendant’s guilt. Graydon v. State, 329 Ark. 596, 953 S.W.2d 45 (1997).
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Moreover, as the majority correctly points out, this court has held that evidence intended to
impeach a victim’s credibility is improper under the rapeshield statute, especially in cases
in which the defendant is accused of raping someone under the age of fourteen, because
“[w]hen consent is not an issue, whether the victim had sexual relations with another person
is ‘entirely collateral.’” M.M. v. State, 350 Ark. 328, 333, 88 S.W.3d 406, 409 (2002) (citing
Evans v. State, 317 Ark. 532, 878 S.W.2d 750 (1994)). Despite this clearly stated precedent,
our court in Townsend, 366 Ark. 152, ___ S.W.3d ___, carved out an exception that now
allows a defendant to delve into a victim’s prior sexual contact thereby subjecting victims
to even more humiliation and degradation.
A review of our decision in Townsend reveals that it is a significant departure from
this court’s previous conclusions that evidence of a minor victim’s prior sexual activity is not
relevant or admissible in a subsequent court proceeding. See, e.g., Standridge v. State, 357
Ark. 105, 161 S.W.3d 815 (2004) (holding that evidence that minor victim had made prior
sexualabuse allegations against her former stepfather was inadmissible under the rapeshield
statute); M.M., 350 Ark. 328, 88 S.W.3d 406 (holding that evidence of prior sexual history
of a nineyearold child was not admissible in defendant’s trial for rape because it was
irrelevant); and Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002) (holding that evidence
of the victim’s prior sexual encounters was irrelevant and thus inadmissible where the
defendant had sexual intercourse with someone less than fourteen years of age). Despite this
court’s clearly established precedent that prior sexual history is particularly irrelevant in
cases involving a victim less than fourteen years of age, the court in Townsend, 366 Ark. 152,
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___ S.W.3d ___, chose to look to other jurisdictions to determine whether evidence that the
victim had been previously raped when she was four years of age was somehow admissible.
Ultimately, this court decided to adopt the test set out by the Wisconsin Supreme Court in
State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), to answer the issue raised in
Townsend. I now realize the error in this approach. In adopting the Pulizzano factors, this
court stated:
We think that this analytical approach has merit when ruling on the
admissibility of a child’s previous sexual experiences. We also believe that
a comparison of the child’s descriptions of the respective sexual encounters is
relevant in cases such as these, because if a description is given after the first
incident but before the second, it provides a basis for an assessment and
comparison of the child’s degree of sexual knowledge at the time of each
incident. Also, the use of common or similar terms or phrases by the child in
the various descriptions may indicate a congruent similarity of the acts in
different incidents, and is therefore relevant.
366 Ark. at 158, ___ S.W.3d at ___. It is interesting to me that while this court announced
that a child’s prior sexual knowledge is now relevant, the opinion made no effort to explain
how it is relevant.
Simply put, this court should overrule Townsend and the test it adopted because
evidence of prior sexual conduct of a victim less than fourteen years of age is simply not
relevant or admissible. Moreover, the Pulizzano test was originally adopted by the
Wisconsin court in the limited context of a finding that the defendant’s rights to
confrontation and compulsory process were denied where she was prohibited from presenting
evidence of a minor victim’s prior sexual assault that the court deemed to be relevant. See
State v. Dunlap, 250 Wis. 2d 466, 640 N.W.2d 112 (2002) (explaining that the court adopted
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the fivefactor test in order to balance the interests of the defendant and the complainant and
to determine when a defendant’s right to present a defense should supersede the state’s
interest in protecting the complainant). In adopting the test in Townsend, 366 Ark. 152, ___
S.W.3d ___, this court took the test out of context, and it can now be used by defendants to
impeach the credibility of minor victims by delving into their sexual histories. Because I
believe that Townsend is a significant departure from this court’s wellestablished precedent,
I believe it should be overruled.
Concurring in part; dissenting in part.
ROBERT L. BROWN, Justice, concurring in part and dissenting in part. I, too, would
reverse and remand, but I would do so to require the circuit judge to first perform the
Townsend analysis. See State v. Townsend, ___ Ark. ___, ___ S.W.3d ___ (April 13, 2006).
In Townsend, this court adopted five factors to be used by the circuit judges of this state for
determining prior knowledge of a child of sexual events and terminology. In the case before
us today, the circuit judge did not make the findings or conclusions, as required by
Townsend.
The majority does the analysis for the circuit judge, including making findings under
Townsend and reaching conclusions, which is totally at odds with our role as an appellate
court. We would be better served remanding the case and requiring the circuit judge to
make the necessary findings. This could be done by the judge solely based on the record of
the rapeshield hearing that has already taken place and would not cause an inordinate delay.
For this reason, I concur in the result but I disagree with the majority’s reasoning for
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doing so.
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