Lindsey v. State

Evelyn LINDSEY v. STATE of Arkansas

CA CR 95-565                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                 Opinion delivered July 3, 1996


1.   Venue -- presumption that venue was properly laid. -- Under
     Ark. Code Ann.  5-1-111 (1987), a conviction may not be had
     unless jurisdiction and venue are proved beyond a reasonable
     doubt; the statute also provides that the State is not
     required to prove jurisdiction or venue unless evidence is
     admitted that affirmatively shows that the court lacks
     jurisdiction or venue; there is a presumption that venue was
     properly laid.

2.   Courts -- jurisdiction -- criminal case -- when proof by State
     is required. -- Before the State is called upon to offer any
     evidence on the question of jurisdiction, there must be
     positive evidence that the offense occurred outside the
     jurisdiction of the court.

3.   Criminal law -- jurisdiction -- any state in which essential
     part of crime was committed may take jurisdiction. -- It is
     generally accepted that if the requisite elements of the crime
     have been committed in different jurisdictions, any state in
     which an essential part of the crime was committed may take
     jurisdiction; the test is whether the record contains
     substantial evidence showing that the offense, or elements of
     it, occurred within the jurisdiction and venue of the court.

4.   Venue -- victim's testimony constituted substantial evidence
     that venue was properly laid. -- The victim's testimony that
     sexual abuse took place in Russellville, Arkansas, constituted
     substantial evidence that venue was properly laid in Pope
     County.

5.   Evidence -- proffer -- why required. -- A proffer is required
     for two reasons: first, so that the trial court may be aware
     of the nature of the evidence; and second, to enable the
     appellate court to decide whether the evidence should have
     been admitted and, if so, whether the error in excluding it
     may have been harmless.  

6.   Evidence -- proffer -- substance of evidence was apparent --
     proffer was adequate. -- The appellate court held that it was
     clear that the trial court and counsel knew exactly what
     testimony they were talking about when the court made its
     ruling barring the testimony of a witness under the Rape
     Shield Statute; the witness's proposed testimony was already
     in the record, and there was no need, under the circumstances,
     to repeat it; the substance of the evidence was apparent, and
     the proffer was adequate.

7.   Evidence -- Rape Shield Statute has no application to victim's
     prior inconsistent statement -- witness's testimony that
     victim recanted should have been admitted -- case reversed and
     remanded. -- The Rape Shield Statute, Ark. Code Ann.  16-42-
     101 (Repl. 1994), has no application to a prior inconsistent
     statement made by the victim regarding the offense charged; a
     witness's testimony that the victim recanted was clearly
     relevant for impeachment purposes and should have been
     admitted; given the critical nature of the victim's testimony,
     the appellate court could not say that the error was harmless;
     the case was reversed and remanded to the trial court for a
     new trial.

     Appeal from Pope Circuit Court; John S. Patterson, Judge;
reversed and remanded.
     William M. Pearson, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.

     John E. Jennings, Chief Judge.*ADVREP*CA1*
                              DIVISION II



                                        CACR 95-565
                                                                         
                                                       July 3, 1996


EVELYN LINDSEY                       APPEAL FROM POPE COUNTY
          APPELLANT                  CIRCUIT COURT     
                                   
VS.

                                     HONORABLE JOHN S. PATTERSON,
                                     CIRCUIT JUDGE
STATE OF ARKANSAS                  
          APPELLEE                   REVERSED AND REMANDED







                     John E. Jennings, Chief Judge.


     Evelyn Lindsey was found guilty by a Pope County jury of
sexual abuse in the first degree and sentenced to a term of ten
years in the department of correction.  At trial, the State
presented evidence that appellant had sexual contact with her
stepdaughters, B.L. and C.L.  For reversal, appellant contends that
the trial court erred in not granting a directed verdict because
jurisdiction was lacking and that the trial court erred in refusing
to admit the testimony of Rennie Bowles, the children's aunt.  We
conclude that the failure to admit Ms. Bowles's testimony was error
and reverse and remand.  
     Arkansas Code Annotated section 5-1-111 (1987) provides that
a conviction may not be had unless jurisdiction and venue are
proved beyond a reasonable doubt.  The statute also provides that
"the State is not required to prove jurisdiction or venue unless
evidence is admitted that affirmatively shows that the court lacks
jurisdiction or venue."  There is a presumption that venue was
properly laid.  Higgins v. State, 317 Ark. 555, 879 S.W.2d 424
(1994).  
     Before the State is called upon to offer any evidence on the
question of jurisdiction, there must be positive evidence that the
offense occurred outside the jurisdiction of the court.  DeWitt v.
State, 306 Ark. 559, 815 S.W.2d 942 (1991).  It is generally
accepted that if the requisite elements of the crime are committed
in different jurisdictions, any state in which an essential part of
the crime is committed may take jurisdiction.  Glisson v. State,
286 Ark. 329, 692 S.W.2d 227 (1985).  The test is whether the
record contains substantial evidence showing that the offense, or
elements of it, occurred within the jurisdiction and venue of the
court.  See Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978). 
     In the case at bar, B.L. testified that the sexual abuse took
place in Russellville.  This constitutes substantial evidence that
venue was properly laid in Pope County.  
     At a pretrial hearing under the Rape Shield Statute, Ark. Code
Ann.  16-42-101, appellant called Rennie Bowles, the children's
aunt.  Ms. Bowles testified:
               I asked B.L. about the accusations she
          made, and she said that Evelyn made her suck
          her tits and kiss her private parts.  This is
          the only conversation I had with B.L.  I asked
          her if it was true and she put her head down
          and started crying.  I told her if it is not,
          you know, tell me the truth, and she said that
          she lied.  I asked her why and she said be-
          cause she was mad at Evelyn.  

The trial court made no ruling at that time on whether the evidence
was barred under the Rape Shield Statute.  
     At trial, appellant called Rennie Bowles as a witness and the
court held that the testimony of Ms. Bowles would be barred under
the Rape Shield Statute.  The State takes no position as to the
propriety of the court's ruling, but contends only that
Ms. Bowles's testimony was not properly proffered.  Rule 103 of the
Arkansas Rules of Evidence provides, in part:
               (a)  Effect of Erroneous Ruling.  Error
          may not be predicated upon a ruling which
          admits or excludes evidence unless a substan-
          tial right of the party is affected, and 

          . . .

               (2)  Offer of proof.  In case the ruling
          is one excluding evidence, the substance of
          the evidence was made known to the court by
          offer or was apparent from the context within
          which questions were asked. 

               (b)  Record of Offer and Ruling.  The
          court may add any other or further statement
          which shows the character of the evidence, the
          form in which it was offered, the objection
          made, and the ruling thereon.  It may direct
          the making of an offer in question and answer
          form.

     Rule 102 of the Rules of Evidence provides that the rule shall
be construed to secure fairness in administration, elimination of
unjustifiable expense and delay, and promotion of growth and
development of the law of evidence, to the end that the truth may
be ascertained and proceedings justly determined.
     A proffer is required for two reasons: first, so that the
trial court may be aware of the nature of the evidence; and second,
to enable the appellate court to decide whether the evidence should
have been admitted and, if so, whether the error in excluding it
may have been harmless.  In the case at bar, when the record is
viewed in context, it is clear that the trial court and counsel
knew exactly what testimony they were talking about when the court
made its ruling.  Ms. Bowles's proposed testimony was already in
the record and there was no need, under the circumstances, to
repeat it.  In the language of the rule the substance of the
evidence was apparent and the proffer was adequate.
     The Rape Shield Statute, Ark. Code Ann.  16-42-101 (Repl.
1994), provides in pertinent part:
          (b)  In any criminal prosecution under  5-
          14-102 -- 5-14-110, 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 allega-
          tions 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 defen-
          dant or any other person if the victim denies
          making the allegations is not admissible by
          the defendant, either through direct examina-
          tion 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.

     The statute simply has no application to a prior inconsistent
statement made by the victim as to the offense charged. 
Ms. Bowles's testimony that the victim recanted was clearly
relevant for impeachment purposes and should have been admitted. 
Finally, given the critical nature of B.L.'s testimony, we cannot
say that the error was harmless.
     For the reasons stated this case is reversed and remanded to
the trial court for a new trial.
     Reversed and remanded.
     ROGERS and GRIFFEN, JJ., agree.