Jason Basham v. State of Arkansas
Annotate this Case
Download PDF
Jason BASHAM v. STATE of Arkansas
CACR04963
___ S.W.3d ___
Court of Appeals of Arkansas
Opinion delivered May 17, 2006
EVIDENCE – EVIDENCE OF PRIOR BAD ACTS WAS ADMISSIBLE – WITNESS’S TESTIMONY
WAS RELEVANT TO THE FACTUAL DETERMINATION OF WHETHER APPELLANT
MISTAKENLY BELIEVED THE VICTIM HAD CONSENTED TO THE ACT.– Where testimony
of appellant’s prior bad acts was admitted pursuant to Ark. R. Evid. 404(b), the
appellate court, examining the mistakeoffact defense addressed in the California
case of People v. Stitely, held that the witness’s testimony was relevant to the factual
determination of whether appellant honestly and in good faith, albeit mistakenly,
believed that the victim consented to anal penetration; accordingly, the trial court did
not err in finding the testimony independently relevant to the issue of lack of mistake
as to consent.
Appeal from Saline County Circuit Court; Gary M. Arnold, Judge; affirmed.
Dustin D. Dyer, for appellant.
Mike Beebe, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
KAREN R. BAKER, Judge. Jason Basham was convicted in a Saline County jury trial of first
___________________________
BAKER, J. 11
BASHAM v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 2
degree terroristic threatening, seconddegree sexual assault, seconddegree battery, and rape. He was
sentenced to a total of fortyfour years' imprisonment in the Arkansas Department of Correction.
Appellant’s counsel initially filed a motion to withdraw on the grounds that the appeal was
without merit pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 43(j) of the Arkansas
Rules of the Supreme Court and Court of Appeals. On June 29, 2005, we ordered rebriefing on the
grounds that appellant's counsel had not briefed all adversarial rulings. On January 11, 2006, we
again ordered rebriefing. The terms “wholly frivolous” and “without merit” are often used
interchangeably in the Anders brief context. Whichever term is used to describe the conclusion an
attorney must reach as to the appeal before requesting to withdraw and our court must reach before
granting the request, what is required is a determination that the appeal lacks any basis in law or fact.
McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 439 (1998).
Due to our conclusion that an argument on appeal addressing evidence of prior bad acts
pursuant to 404(b) would not be wholly frivolous, counsel’s motion to withdraw was denied and we
ordered rebriefing in adversary form. Tucker v. State, 47 Ark. App. 96, 885 S.W.2d 904 (1994). In
this adversarial brief, appellant’s sole argument is that the trial court erred in allowing evidence of
prior bad acts pursuant to Rule 404(b). He asserts that the State’s argument that the similarity of the
acts showed absence of mistake or accident is inapplicable under the facts of this case. We find that
the trial court did not err and affirm.
The admission or rejection of evidence under Rule 404(b) is committed to the sound
___________________________
BAKER, J. 11
BASHAM v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 3
discretion of the trial court, and we will not reverse absent a showing of manifest abuse. Medlock
v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002). The general rule is that evidence of other crimes
by the accused, not charged in the indictment or information and not a part of the same transaction,
is not admissible at the trial of the accused. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333
(2004). The list of exceptions set out in the rule is exemplary and not exhaustive. White v. State, 290
Ark. 130, 717 S.W.2d 784 (1986). Testimony is admissible pursuant to Rule 404(b) if it is
independently relevant to the main issue, relevant in the sense of tending to prove some material point
rather than merely to prove that the defendant is a criminal or a bad person. Mosley v. State, 325 Ark.
469, 929 S.W.2d 693 (1996).
The trial court in this case conducted a hearing on March 9, 2004, to determine the
admissibility of the testimony appellant challenges here. The witness testified that approximately
three and onehalf years before, when she was living with appellant and pregnant with his child, he
forced her to have anal sex. She described how when she tried to get away from him and screamed
at him to stop, he pushed her down on her stomach and held her down with his body. She stated that
appellant eventually ended the painful experience because he became “turned off” by her crying and
screaming. This event led to her terminating the relationship.
Appellant’s rape conviction on the rape charge arose from appellant anally penetrating his wife
with his penis by forcible compulsion while beating her until she could not see, threatening the
children, and forcing their young son to witness the attack. The victim testified that appellant first
___________________________
BAKER, J. 11
BASHAM v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 4
became violent with her when she was pregnant with their first child. The circumstances surrounding
the rapes were not identical, but their similarities – that appellant was willing to disregard the wishes
of persons with whom he was in intimate relationships and to use force to anally penetrate them –
rendered the testimony of the earlier rape admissible.
At trial and on appeal, appellant argued that he and the victim engaged in consensual anal
intercourse. However, when appellant’s counsel asked appellant whether his wife ever protested in
engaging in anal sex, he replied, “Not – not indirect,” and then elaborated, “At one point, she said that
– at one point she said that, no, she didn’t want it that way, at one point[,]” but that he did it that way
anyway. On crossexamination, he explained that “she never said no, no, stop that. The only thing
she ever said was no, she didn’t feel like it[,]” adding “[s]he just said no she didn’t feel like anal sex.”
This testimonycould reasonablybe understood to be a claim that appellant mistakenlythought
the victim consented. Appellant contends that the plain meaning of the words mistake or accident are
inapplicable to this case because no party suggested that appellant had sex with his wife by mistake
or accident – he readily admits they had sex. We agree with appellant that the issue was not whether
sexual contact occurred. The factual determination to be made by the fact finder was not whether
appellant mistakenly had sex, but whether appellant mistakenly believed the victim had consented to
the act.
Although our legislature has not adopted the mistakeoffact defense to a rape charge, the
State of California allows the defense. The case of People v. Stitely, 108 P.3d 182 (Cal. 2005)
___________________________
BAKER, J. 11
BASHAM v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 5
addressed the defense and an examination of the defense aids our analysis. The mistake of fact
defense to a rape charge has two components: first, the defendant must have honestly and in good
faith, albeit mistakenly, believed that the victim consented to sexual intercourse, which involves
evidence of equivocal conduct by the victim that the defendant mistook for consent; second, an
objective component asks whether the defendant's mistaken belief regarding consent was reasonable
under the circumstances. See id. at 208.
Therefore, the witness’s testimony was relevant to the factual determination of whether
appellant honestly and in good faith, albeit mistakenly, believed the victim consented to anal
penetration. Accordingly, the trial court did not err in finding the testimony independently relevant
to the issue of lack of mistake as to consent.
Affirmed.
ROBBINS, J., agrees.
PITTMAN, C.J., concurs.
___________________________
BAKER, J. 11
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.