Heather Keller v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR06-1418
HEATHER KELLER,
Opinion Delivered September
APPELLANT,
VS.
STATE OF ARKANSAS,
27, 2007
APPEAL FR O M TH E PU LASKI
COUNTY CIRCUIT COURT,
NO. 2005-2390,
HON. CHRIS PIAZZA, JUDGE,
APPELLEE,
AFFIRMED.
ANNABELLE CLINTON IMBER, Associate Justice
Appellant Heather Raye Keller was convicted by a jury in Pulaski County Circuit
Court of the rape of C.R., a person under fourteen (14) years of age at the time of the sexual
act, and the violation of a minor K.S., a person over fourteen (14) years of age at the time of
the act. The circuit court sentenced Keller to fifteen (15) years’ imprisonment for the rape
conviction and six (6) years’ imprisonment for the violation-of-a-minor conviction, to be
served consecutively. Keller does not appeal her conviction. Instead, she challenges the
circuit court’s order denying her request during the sentencing phase to present evidence that
C.R. had made prior allegations of sexual abuse against a third party. We find no error and
affirm the circuit court.
As a threshold matter we must address the issue of whether Keller has preserved her
argument for appeal. See Wyles v. State, 368 Ark. 646, ___ S.W.3d ___ (2007). Keller asks
this court to reverse the circuit court’s decision to exclude the evidence of C.R.’s prior
allegations of sexual abuse during the sentencing phase. She also seeks to have her sentence
for the rape conviction reduced from fifteen (15) to ten (10) years’ imprisonment. The State
argues that Keller never challenged the imposition of the fifteen-year sentence below, and,
therefore, she did not preserve the challenge to her sentence for appeal. We agree that Keller
never objected to the sentence in the circuit court, and thus her request to reduce the fifteenyear sentence is not preserved for appellate review. However, the record reflects that Keller
did preserve her argument that the evidence of C.R.’s prior allegations of sexual abuse was
admissible during the sentencing phase. Because we conclude that she preserved her challenge
to the circuit court’s evidentiary ruling, that argument is subject to review on appeal.
For several years, Keller was involved in the operation of daycare facilities, first as an
employee and then as an owner. Eventually, she started an after-school acting group for
children. Keller first came into contact with C.R. when C.R. was eight years old and was
attending the daycare facility where Keller was employed. When Keller opened her own
daycare, C.R.’s parents transferred her to the new daycare, and when the acting group began,
C.R. was also sent there. In 1994, C.R.’s parents divorced, and they began leaving her at the
daycare after hours. They also began asking Keller to watch her overnight. It was at this
point, when C.R. was nine or ten years old, that the sexual abuse began, and the abuse lasted
until C.R. was thirteen or fourteen years old.
Keller devised a scheme in which she used C.R.’s religious upbringing to make C.R.
believe that Keller was possessed by both angels and demons. Keller would tell C.R. that an
angel wanted to talk to her, and then Keller would lie down and convulse, and upon rising
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Keller would be wearing a new, distinct facial expression and would have altered her voice.
Keller formulated detailed stories about the angel and demon characters and how they came
to be in her body. One of the angel characters was “Rickey,” a male archangel, who became
C.R.’s boyfriend and performed various sexual acts on C.R. through Keller’s body. C.R. also
reported being abused by several other angel and demon characters. At trial, K.S. and several
other unnamed victims testified to being told similar stories by Keller.
C.R. did not report the abuse by Keller until she was twenty-one years old. However,
when she was twelve, C.R. did make allegations that her aunt had sexually abused her when
she was four or five years old.
Prior to trial, Keller filed a rape-shield motion to have the evidence of C.R.’s prior
allegations against her aunt admitted during the guilt phase of trial. During the rape-shield
hearing, defense counsel argued that the evidence was admissible to attack C.R.’s credibility
as a witness because she did not report Keller’s abuse at the same time she made allegations
against her aunt. When questioned about this issue, C.R. testified that she did not report
Keller at that time because her extended family tried to defend her aunt by saying that Keller
was the real abuser, and C.R. was afraid that if she revealed Keller’s abuse, her parents and
family would not believe the true allegations against her aunt. The circuit court decided the
evidence should be excluded under the rape-shield statute because any relevance would be
outweighed by the high potential of prejudice to the victim.
During the sentencing phase of trial, the prosecutor asked C.R. what effect Keller had
upon her life, and defense counsel objected, stating that such questions would be misleading
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to the jury. Specifically, defense counsel argued that the jury would be led to believe that all
of the bad circumstances of C.R.’s childhood could be blamed on Keller, and defense counsel
asked to be allowed to cross-examine C.R. about her prior allegations against her aunt in
order to show that Keller was not the sole cause of her childhood problems. The circuit court
determined that the evidence was still barred by the rape-shield statute, and C.R. was allowed
to testify about the impact of Keller’s actions on her life.
Under Ark. Code Ann. § 16-97-103, evidence relevant to sentencing can be submitted
to the jury, “provided no evidence shall be construed under this section as overriding the rape
shield statute.” Ark. Code Ann. § 16-97-103 (Repl. 2006). The rape-shield statute, Ark.
Code Ann. § 16-14-101 (Repl. 1999), was enacted with the purpose of protecting 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. See Parish v. State, 357 Ark. 260, 163 S.W.3d 843 (2004). Section
16-42-101(b) provides that in a criminal prosecution for a sex crime the following evidence
is not admissible:
[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 crossexamination 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.
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Ark. Code Ann. § 16-42-101(b) (emphasis added). A defendant may, however, file a rapeshield motion under subsection 16-42-101(c) requesting that the circuit court make a
determination as to the admissibility of the proposed evidence. Ark. Code Ann. § 16-42101(c). Upon holding a hearing, if the circuit 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 circuit court may grant the defendant’s motion to admit the evidence.
Ark. Code Ann. § 16-42-101(c)(2)(C).
Thus, the rape-shield statute is not a complete bar to the introduction of evidence of
a victim’s prior sexual conduct; but, the circuit court is vested with a great deal of discretion
in ruling whether the evidence is relevant. See Harris v. State, 322 Ark. 167, 907 S.W.2d 729
(1995). This court will not reverse the circuit court’s decision as to the admissibility of rapeshield evidence unless its ruling constituted clear error or a manifest abuse of discretion. Parish
v. State, supra.
Our opinion in Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002), involved facts
and issues very similar to the case at hand. In that case, Ridling was charged with the rape
of a girl under fourteen (14) years of age. During the guilt phase of trial, he asked to submit
evidence that the victim had sexual relationships with other men while she was underage and
having a relationship with Ridling. Id. The circuit court denied Ridling’s motion, and
Ridling attempted to introduce the same evidence during the sentencing phase to show “lack
of any substantial harm” to the victim because she was engaging in other sexual relationships
with older men while she had a relationship with Ridling. Id. The circuit court again denied
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Ridling’s request without holding a separate hearing to determine the admissibility of the
evidence during the sentencing phase. Id. We affirmed, holding that when an in camera
review of the same evidence was held prior to the guilt phase, the circuit court was not
required to hold a second, identical hearing, and we concluded that the circuit court did not
abuse its discretion in denying Ridling’s request to present the evidence during sentencing.
Id.
Likewise, in the instant case, the circuit court held a pre-trial hearing in which it
concluded that the evidence of C.R.’s prior allegations against her aunt was more prejudicial
to the victim than probative, and the court came to the same conclusion during the
sentencing phase. We agree with the circuit court’s evidentiary ruling. The relevance of the
evidence to rebut C.R.’s claim that Keller caused the majority of her childhood problems was
slight in comparison to the evidence that Keller occupied a role of trust in C.R.’s life as care
giver and teacher and used that position of trust to abuse C.R. for almost four (4) years.
Furthermore, in view of the highly prejudicial nature of the evidence along with our
deferential standard of review, we cannot say that the circuit court’s decision constituted a
manifest abuse of discretion.
We also note that defense counsel elicited the very testimony that is the focus of
Keller’s argument on appeal. It was only after defense counsel suggested a figure of onehundred percent during cross-examination that C.R. attributed one-hundred percent of her
childhood problems to Keller. One who is responsible for error cannot be heard to complain
of that for which he or she is responsible. Wyles v. State, 357 Ark. 530, 182 S.W.3d 142
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(2004).
Affirmed.
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