Joyner v. State
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SUPREME COURT OF ARKANSAS
No.
CR 08-824
TIMOTHY JUSTIN JOYNER,
APPELLANT,
VS.
Opinion Delivered April 2, 2009
APPEAL FROM THE STONE
COUNTY COURT,
NO. CR 2006-64,
HON. JOHN DAN KEMP, JUDGE,
STATE OF ARKANSAS,
APPELLEE,
AFFIRMED.
JIM GUNTER, Associate Justice
This appeal arises from the conviction of Appellant Timothy Joyner of four counts of
rape and one count of terroristic threatening in the first degree. Appellant was sentenced to
forty years on each count of rape and six years on the count of terroristic threatening, all to
run concurrently. On appeal, Appellant asserts that (1) the circuit court erred in denying his
motion to permit testimony concerning prior claims of sexual abuse made by the victim; (2)
the circuit court erred in refusing to grant a mistrial or a new trial; and (3) the circuit court
erred in refusing to instruct on the lesser offense of sexual assault in the second degree on one
of the rape counts. We affirm.
On May 17, 2006, an information was filed charging Appellant with four counts of
rape, each of which was a “Y” felony in violation of Arkansas Code Annotated § 5-14-103.
Each count charged him with unlawfully and feloniously engaging in sexual intercourse or
deviate sexual activity with S.O., who was less than fourteen years of age.
On April 25 and December 13, 2007, Appellant filed motions to admit evidence of
prior sexual conduct of S.O., specifically evidence that she had made prior allegations of
sexual assault against other males in a familial relationship. Appellant alleged that S.O. was
the victim of two prior sexual assaults. He claimed that the evidence of two prior sexual
assaults could be the cause of injury to S.O.’s vaginal area. The two alleged incidents involved
a man named Lavelle in 2000 and a man named Chuck McGhee 1 in 2001.
On December 17, 2007, the Stone County Circuit Court held an in camera hearing
on the rape-shield motion. Appellant called Tammy Mosley, the mother of S.O.’s best friend,
D.D., who testified that she had knowledge of previous sexual abuse of S.O. Appellant also
presented an affidavit of Tammy stating that she had “first-hand knowledge of the molestation
of [S.O.] by Mr. [McGhee] in 2001” and that “[S.O.] was not a virgin when she accused
[Appellant] of rape.” Appellant also offered the affidavit of D.D., Tammy’s daughter. The
affidavit was excluded on hearsay grounds, but was proffered into the record. D.D.’s affidavit
stated that both she and S.O. were touched in their private areas by Lavelle, that S.O. was
molested many times in 2000 and 2001, and that S.O. was not a virgin when she accused
Appellant of rape. It was reported to Human Services that S.O.’s mother walked in on
Chuck McGhee having sex with S.O. After the testimony of Tammy and D.D., Appellant
asked to call S.O. to testify in the in camera hearing.
Relying on Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979), the circuit court
ruled that there is no requirement for S.O. to present herself for questioning by the accused
1
The record and briefs refer to the alleged 2001 abuser as both “Chuck McGhee”
and “Chuck McKee.” We will refer to him as “McGhee” to avoid confusion.
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and denied Appellant’s request to call S.O. to the stand. The circuit court ruled that Appellant
did not offer proof that the alleged prior act occurred and that the rape-shield statute
precluded any inquiry into the prior sexual conduct of S.O.
On the first day of trial, Jennifer Beaty, the DNA analyst from the Arkansas Crime Lab,
testified that DNA found on a pair of S.O.’s underwear belonged to S.O. within a reasonable
degree of scientific certainty. At the beginning of Appellant’s cross-examination of Beaty, he
moved for a mistrial on the grounds that she had changed her opinion and that he would not
be able to effectively cross-examine her due to the sudden change in her opinion. The circuit
court denied the motion for mistrial on the basis that it was not timely made and because all
of the materials from Beaty’s file had been supplied to Appellant.
On December 20, 2007, Appellant moved for a new trial pursuant to Arkansas Code
Annotated section 16-89-130 and Arkansas Rule of Criminal Procedure 33.3(a), arguing again
that he never received notice of Beaty’s changed opinion. The circuit court reaffirmed its
previous ruling that the motion for mistrial was not timely and denied Appellant’s motion for
new trial.
At the end of trial, Appellant asked the circuit court to instruct the jury on sexual
assault in the second degree, as a lesser-included offense of rape, arguing that the State failed
to provide any substantial evidence that S.O. was under the age of fourteen, that he was over
the age of eighteen, or that he had any sexual contact with her. The circuit court denied the
motion. Appellant now brings this appeal.
Rape-shield statute
For his first point on appeal, Appellant asserts that the circuit court erred in denying
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his motion to permit testimony concerning prior claims of sexual abuse made by S.O.
Specifically, Appellant contends that the testimony would demonstrate the knowledge of S.O.
to make allegations of sexual abuse and that the purported injury to her genital area could
have been from prior sexual conduct. He further asserts that the circuit court erred in not
allowing him to question S.O. at the in camera hearing on the rape-shield motion.
The rape-shield statute, codified at Arkansas Code Annotated § 16-42-101, states, in
pertinent part:
(b) In any criminal prosecution under § 5-14-101 et seq. or § 5-26-202, 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 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.
Thus, under our rape-shield law, evidence of a victim’s prior sexual conduct is not
admissible by the defendant to attack the credibility of the victim, to prove consent or any
other defense, or for any other purpose. Ark. Code Ann. § 16-42-101(b); Bond v. State, 374
Ark. 332, __ S.W.3d __ (2008). An exception is granted where the circuit court, at an in
camera hearing, makes a written determination that such evidence is relevant to a fact in issue
and that its probative value outweighs its inflammatory or prejudicial nature. Id. The statute’s
purpose is to shield 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
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CR 08-824
when such conduct is irrelevant to the defendant’s guilt. Id. Accordingly, the circuit court
is vested with a great deal of discretion in determining whether the evidence is relevant, and
we will not overturn the circuit court’s decision unless it constituted clear error or a manifest
abuse of discretion. Id.
Appellant relies on State v. Townsend, 366 Ark 152, 233 S.W.3d 680 (2006), for his
assertion that the State’s introduction of medical evidence involving the injury to S.O.’s
vaginal area makes questioning concerning an alternative source for the injury relevant. In
Townsend, we concluded that evidence of prior sexual assault of the victim was not relevant
to the allegations against the accused “unless the State introduces medical evidence consistent
with those allegations.” Id. at 161; 233 S.W.3d at 687. Here, the State introduced the
testimony of Dr. Jerry Jones at trial. Jones practices in child abuse pediatrics at Arkansas
Children’s Hospital. Jones testified that he examined S.O. in May of 2006. He stated that
there was a piece of S.O.’s hymen missing. He also stated that this was not a fresh injury, but
was from sometime in the past. He said that the injury was “at least a week old probably at
least two weeks.” He stated that it was possible for the injury to be years old. Dr. Jones
could not say for sure when the injury happened, stating that at some point in S.O.’s life, she
was penetrated by some object, and it did damage to the hymen. Here, the State has
introduced medical evidence consistent with the allegations against the accused, making
evidence of S.O.’s past sexual conduct relevant for Appellant’s defense.
In Townsend, 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 matters from the alleged encounters with the defendant. We adopted
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CR 08-824
a five-factor test from State v. Pulizzano, 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.
Townsend at 158, 233 S.W.3d at 685.
In the present case, Appellant is attempting to introduce prior sexual conduct to prove
that there was an alternate source for the victims’s injury, rather than an alternate source for
her sexual knowledge. The State asserts that the rationale behind the factors set out in
Townsend is equally applicable here. We agree and adopt Townsend for this situation. Under
an analysis of the Townsend factors, Appellant’s offer of proof fails. The circuit court found
that Appellant failed to meet the first factor of the test because Appellant did not prove that
the prior act clearly occurred. Appellant presented the testimony of Tammy and D.D. and
their affidavits, all of which were determined by the circuit court to be hearsay. The only
other proof he presented was a CIP Intake report, admitted for the purposes of the rape-shield
hearing, which was never authenticated. The CIP report alleged that Chuck McGhee
sexually abused S.O. by vaginal penetration. S.O. would have been approximately five years
old at the time of the alleged 2001 assault by Chuck McGhee. S.O. told the prosecution that
she did not remember being sexually abused in 2001. There is no substantial evidence to
prove that the alleged sexual abuse by Chuck McGhee in 2001 “clearly occurred.” Appellant
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CR 08-824
has failed to meet the first factor, therefore it is not necessary to discuss the remaining factors.
Because Appellant has failed to meet the test set out in Townsend, it was not a manifest abuse
of discretion for the circuit court to exclude evidence regarding the alleged 2001 sexual abuse.
Appellant further argues that it was an abuse of discretion for the circuit court to
decline his request to call S.O. as a witness at the in camera hearing. He also contends that
such a denial violated his state and federal constitutional rights of compulsory process as
guaranteed by the Sixth and Fourteenth Amendments and Article 2, § 10 of the Arkansas
Constitution, as well as the Fifth and Fourteenth Amendments and Article 2, § 8 right of due
process, comprising the right to present a defense. The State responds, asserting that there is
no entitlement to question the victim at a rape-shield hearing.
The in camera hearing is not designed to be used as a subterfuge to obtain a discovery
deposition from the alleged victim. Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979).
There is no requirement that the victim present herself for questioning by the accused. Id.
Appellant argues on appeal that this “blanket statement should not be the law.” However,
he has provided no convincing authority to change the law set out in Sterling, and we affirm
the circuit court’s ruling on this point. See, e.g., Talbert v. State, 367 Ark. 262, 239 S.W.3d
504 (2006).
We also reject Appellant’s argument that the rape-shield statute, as applied to this case,
violates his constitutional right to present a defense. Appellant was able to present a defense.
He cross-examined Dr. Jones, who testified that the injury to S.O.’s vaginal area was “not a
fresh injury,” but “occurred sometime in the past.” Appellant was able to cross-examine S.O.
at trial about her allegations against Appellant. Moreover, the parties stipulated to the 2000
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sexual abuse, allowing Appellant to offer evidence to the jury of an alternative source of the
damage to S.O.’s hymen. Because we cannot say that Appellant’s constitutional rights were
violated, we affirm the circuit court’s ruling on this point.
II. Motions for mistrial and new trial
For his second point on appeal, Appellant asserts that the circuit court erred in denying
his motions for mistrial and new trial. Specifically, he contends that his motions should have
been granted because Jennifer Beaty, who analyzed DNA evidence found on a pair of S.O.’s
underwear, recalculated her figures and changed her testimony before trial. In Beaty’s report,
dated December 14, 2006, Beaty stated that the DNA tests showed that the DNA was
“consistent with” S.O.’s DNA.
At trial, Beaty testified that the DNA found on the
underwear was S.O.’s DNA. On appeal, Appellant is arguing that this amounted to a
discovery violation pursuant to Arkansas Rule of Criminal Procedure 17.1(a)(iv) and that the
proper sanction was mistrial pursuant to Rule 19.1. The State responds, asserting that
Appellant has not preserved the issue with regard to mistrial, but alternatively argues that the
denial of the mistrial motion was proper.
We must first address whether Appellant’s motion for mistrial was preserved for appeal.
The State asserts that, while Appellant argued that Beaty’s opinion on the stand differed from
that contained in her report and that she testified to calculations not included in her report,
he did not allege that the situation amounted to a discovery violation under Ark. R. Crim.
P. 17.1, nor did he argue that a mistrial was warranted as a sanction for that violation under
Ark. R. Crim. P. 19.7.
A criminal defendant is entitled, under Rule 17.1(a)(iv) to “any reports or statements
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of experts, made in connection with the particular case, including results of physical or mental
examinations, scientific tests, experiments or comparisons.” At the trial, Appellant’s counsel
stated:
MR. JAMES: I’m moving for a mistrial, I mean I wasn’t giving this
information. This is new–I mean I had this information–I got up on opening
statement and gave an opening statement based on the report that she gave–had
given to me that’s been in the file and had for a year. And now she’s–she’s
come in here and I mean obviously she testified to it before lunch but now
she’s changed–she’s–I mean her–her the–opinions I was given as an–from the
expert has now changed.
It appears that although Appellant didn’t specifically reference Rules 17.1 and 19.7, he clearly
moved for mistrial because Beaty testified to something that was not in the reports provided
to him as a part of discovery. We reject the State’s preservation argument on this point.
The circuit court denied Appellant’s motion for mistrial because it was untimely. This
court has been resolute in holding that a motion for mistrial must be made at the first
opportunity. See, e.g., Ellis v. State, 366 Ark. 46, 233 S.W.3d 874 (2003); King v. State, 361
Ark. 402, 206 S.W.3d 883 (2005); Rodgers v. State, 360 Ark. 24, 199 S.W.3d 625 (2004);
Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). The reason for this is that a circuit
court should be given an opportunity to correct any perceived error before prejudice occurs.
Ellis, supra; Rodgers, supra; Ferguson, supra.
Here, Beaty testified twice that the DNA belonged to S.O. during the State’s direct
examination. She also testified regarding the statistics she used in reaching her determination
that the DNA belonged to S.O. Following the first time Beaty testified that the DNA “was”
S.O.’s, Appellant objected but did not move for mistrial. The State asked Beaty several more
questions, and Beaty again testified that the DNA belonged to S.O. with no objection from
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Appellant. After the State completed its direct examination of Beaty, the court asked if there
was “anything else to take up” and Appellant’s counsel stated, “[n]ot at this time, Your
Honor, not from the Defendant.” The court then took a lunch recess, and it was not until
Appellant began his cross-examination of Beaty that he moved for mistrial. Appellant’s
motion for mistrial was untimely. We need not reach the issue of whether the denial of the
motion was an abuse of discretion on the merits.
The decision whether to grant or deny a motion for new trial lies within the sound
discretion of the circuit court. Clark v. State, 358 Ark. 469, 192 S.W.3d 248 (2004). Because
Appellant’s motion for new trial was brought on the same grounds as the mistrial motion, we
hold that there was no abuse of discretion in denying his motion for new trial.
III. Jury instructions
For his final point on appeal, Appellant asserts that the circuit court erred in refusing
to instruct the jury on the lesser offense of sexual assault in the second degree on one of the
counts of rape. Specifically, he contends that the testimony at trial that Appellant had
difficulty consummating intercourse and S.O.’s testimony that he “press(ed) against my private
with his private” warrants a lesser instruction of sexual assault in the second degree. The State
responds, asserting that Appellant has not established that sexual assault in the second degree
is a lesser-included offense of rape.
Arkansas Code Annotated section 5-14-103(a)(3)(A) provides that a person commits
rape if he or she engages in sexual intercourse or deviate sexual activity with another person
who is less than fourteen years of age. A person commits sexual assault in the second degree
if the person, being eighteen years or older, engages in sexual contact with another person
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who is less than fourteen years of age and not the person’s spouse. Ark. Code Ann. § 5-14125(a)(3)(A)-(B).
As this court stated in McCoy v. State, there are three independent ways in which an
offense can qualify as a lesser-included offense under the Arkansas statute. 347 Ark. 913, 919,
921, 69 S.W.3d 430, 433, 435 (2002) (interpreting Ark.Code Ann. § 5-1-110(b), and
retreating from earlier cases which had held that three separate requirements must each be
met). Under § 5-1-110(b), an offense is a lesser-included offense if it: (1) “[i]s established by
proof of the same or less than all of the elements required to establish the commission of the
offense charged,” (2) “[c]onsists of an attempt to commit the offense charged or to commit
an offense otherwise included within the offense charged,” or (3) “[d]iffers from the offense
charged only in the respect that a less serious injury or risk of injury to the same person,
property, or public interest or a lesser kind of culpable mental state suffices to establish the
offense’s commission.”
Sexual assault requires proof of two elements that the rape statue does not–the
defendant’s age and marital status with respect to the victim. Sexual assault is not “established
by proof of the same or less than all of the elements required” to establish rape. Sexual assault
does not consist of an attempt to commit rape or to commit an offense otherwise included
within rape. Sexual assault does not differ from rape “only in the respect that a less serious
injury or risk of injury to that same person. . . .” (emphasis added). Thus, under McCoy,
Appellant has failed to establish that sexual assault is a lesser-included offense to rape, and we
affirm the circuit court’s ruling. Accordingly, based on the reasoning above, we affirm
Appellant’s conviction.
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Affirmed.
H ANNAH, C.J., and D ANIELSON, J., concur.
IMBER, J., not participating.
H ANNAH , C.J., concurring. I concur in the result reached by this court but write
separately regarding Joyner’s motion to permit testimony concerning prior sexual abuse.
Joyner argues that he was denied his federal and state constitutional rights to present a defense
when the circuit court refused to allow him to examine S.O. at the in camera hearing
regarding earlier sexual abuse that could have been the cause of the tear to S.O.’s hymen.
I conclude that regardless of any error by the circuit court at the in camera hearing,
Joyner suffered no prejudice. While evidence of the alleged 2001 vaginal rape of S.O. was
not presented to the jury, evidence of the 2000 sexual abuse of S.O. and possible injury from
that abuse was presented to the jury. Dr. Jerry Jones testified at trial that the injury was at
least a week or two old at the time of his examination, and that it was “possible that it could
be years old.” Thus, the jury knew the injury could have predated the conduct alleged against
Joyner. Further, at trial the State and the defense stipulated that S.O. was digitally penetrated
in a sexual assault in 2000. This stipulation was read to the jury. Additionally, in closing
argument Joyner stated that it was stipulated and “uncontroverted that in 2000 this little girl
was, I mean, basically raped. She was digitally penetrated by another guy.” Thus, the jury
was told that Joyner denied the charged conduct, and evidence was presented to show that
the tear in S.O.’s hymen may have been caused by the 2000 sexual assault.
I also note our comment in Sterling v. State, 267 Ark. 208, 210, 590 S.W.2d 254, 255
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(1979): “There is no requirement that the victim present herself for questioning by the
accused.” This comment is often misunderstood, and it may have been misunderstood by the
circuit court in this case. In Sterling, the victim testified at the rape-shield in camera hearing
and was asked about her motive in reporting the rape, what she told her parents, and how
much she had to drink. Sterling, 267 Ark. at 209, 590 S.W.2d at 255. The State objected.
This court held that what the victim told her father and what her motive might have been
were not issues within the bounds of either the statute or the motion. Id. This court noted
in Sterling that Sterling’s motion asserted he “had information which he desired to present to
the court for consideration.” Sterling, 267 Ark. at 211, 590 S.W.2d at 255. In other words,
Sterling told the court he wanted a decision on the admissibility of evidence of prior sexual
conduct.2 Instead, at the in camera hearing counsel sought to use the hearing to fish for
information about the victim’s motives and facts about the charged rape. Because of this
attempt to circumvent the statute, which limits the hearing to admissibility of evidence of
prior sexual conduct, this court in Sterling stated that the in camera hearing is not to be used
as a means to carry out discovery unrelated to sexual conduct. Sterling, 267 Ark. at 210, 590
S.W.2d at 255.
Rather, the purpose of the in camera hearing is to determine whether
evidence of prior sexual conduct is relevant and admissible for trial purposes. Id.
Sterling does not stand for the proposition that a victim may never be subjected to
questioning at the in camera hearing. It stands for the proposition that a victim does not have
2
Sterling’s motion made reference to prior consensual sexual acts; however, it appears
that there was no proffer to allow review of that issue. Sterling v. State, 267 Ark. 208, 211, 590
S.W.2d 254, 255-256 (1979).
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to present him or herself at the in camera hearing to be subjected to a discovery deposition:
Appellant should have been permitted to present any available evidence relating
to the victim’s prior sexual conduct and any available evidence relating to the
acts upon which the present prosecution is based. However, the in camera
hearing is not designed to be used as a subterfuge to obtain a discovery
deposition from the alleged victim.
Sterling, 267 Ark. at 210, 590 S.W.2d at 255. The rape-shield statute concerns evidence of
prior sexual conduct. General discovery is not the purpose of the in camera hearing. The
right to confront the victim as the accusing witness is not compromised by the rape-shield
statute:
If the statute absolutely barred evidence of the victim's prior sexual conduct, its
constitutionality would be suspect in light of Davis v. Alaska, 415 U.S. 308
(1975). This it does not do. Since this evidence is admissible at trial upon the
court’s determination that it is relevant to the fact in issue, and that its probative
value outweighs its inflammatory or prejudicial nature, we cannot say that the
appellant's due process rights are not fully protected.
Marion v. State, 267 Ark. 345, 347, 590 S.W.2d 288, 290 (1979).
The rape-shield statute prohibits hearing the issue of admissibility of evidence of prior
sexual conduct at trial. Ark. Code Ann. § 16-42-101(b) (Repl. 1999). This prohibition
against admission at trial applies regardless of what purpose the evidence may serve, whether
that be attacking the “credibility of the victim, to prove consent, or any other defense, or for
any other purpose.” Id. Rather, the admissibility of evidence of prior sexual conduct of the
victim is decided at an in camera hearing. Ark. Code Ann. § 16-42-101(c) (Repl. 1999).
Further, at the in camera hearing, the circuit court must, once it decides to admit the
evidence as relevant and sufficiently probative, instruct counsel how the admitted testimony
is to be presented at trial. Ark. Code Ann. § 16-42-101(c)(2)(C) (Repl. 1999). The rape-14-
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shield statute was designed to stop the practice of cross-examination of victims at a public trial
regarding their complete sexual history because the history is usually irrelevant to proving the
charged crime. Duncan v. State, 263 Ark. 242, 244, 565 S.W.2d 1, 2 (1979). The intent is
to shield victims of rape or sexual abuse from the humiliation of having personal conduct
unrelated to, and irrelevant to, the defendant’s guilt discussed in front of the jury and the
public. Bond v. State, 374 Ark. 332, 335-36, ___ S.W.3d ___, ___ (2008); Flurry v. State,
290 Ark. 417, 720 S.W.2d 699 (1986). It is also intended to encourage rape and sexual assault
victims to prosecute their attackers. State v. Sheard, 315 Ark. 710, 716, 870 S.W.2d 212, 215216 (1994).
The rape-shield statute controls where the decision on admission is made.
To
characterize the statute as a rule excluding evidence and subject to exceptions is inaccurate.
“This statute clearly allows evidence of the alleged victim’s prior sexual conduct, as well as
evidence directly pertaining to the acts upon which the present prosecution is based, to be
introduced or inquired about in the in camera hearing.” Sterling, 267 Ark. at 210, 590
S.W.2d at 255. Thus, it does not exclude evidence of prior sexual conduct and then grant
an exception.
The rape-shield statute moves the decision on relevance and probative value of
evidence of past sexual conduct from the public setting of trial to a closed in camera hearing.
In other words, if the evidence of past sexual conduct is found at the in camera hearing to
be relevant to and sufficiently probative of the defendant’s defense, it is admissible at trial. See
Ark. Code Ann. § 16-42-101(c)(2)(C) (Repl. 1999). The rape-shield statute process makes
discussion on admission non-public and means that irrelevant evidence of abuse or the
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victim’s sexual conduct will not be disclosed in public. Irrelevant evidence is not admissible
in any event. See Ark. R. Evid. 402.
In the present case at the in camera hearing, Joyner offered hearsay testimony about
other instances of sexual abuse suffered by S.O., as well as unauthenticated governmental
reports of abuse she suffered. Further, Joyner believed that at trial the State would attribute
the hymen tear to him. The State did so. In opening statements, the prosecutor referenced
expert witness Dr. Jerry Jones and stated as follows:
But what he’s going to tell you is that there was evidence of penetration,
ah, in this little girl’s hymen. Trauma.
Ah, so you’re going to hear [S.O.] tell that he did it. You’re going to
hear the DNA and the probabilities of it being someone else. You’re going to
see the holes in the wall.
Joyner requested that S.O. testify at the in camera hearing held before trial. The State argued
that the rape shield statute precludes subjecting a victim to testify about prior abuse at an in
camera hearing unless the defendant shows that the “prior acts clearly occurred.” Based on
finding that the hearsay testimony and the reports were inadmissible, the State argued she
could not be compelled to testify at the in camera hearing because Joyner had failed to show
by admissible evidence that “the prior acts clearly occurred.” The circuit court agreed and
did not compel S.O. to testify.3 The State argues on appeal, as it did in the circuit court
below, that under State v. Townsend, 266 Ark. 152, 233 S.W.3d 680 (2006), the defendant
3
I note that at the in camera hearing, the prosecutor represented to the circuit court that
S.O. had been asked about the prior abuse and could not remember one of the instances. Based
on this assertion, the prosecutor also argued that S.O. should not be required to testify. It is
doubtful that Joyner’s right to confront an accusing witness would be satisfied by the State’s
representation of what the witness would say.
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must prove that the prior act clearly occurred before the victim may be compelled to testify
at the in camera hearing. Reliance on Townsend is misplaced. Townsend controls what must
be shown before trial to compel the victim to testify at trial. It does not speak to the victim’s
testifying at the in camera hearing. The in camera hearing is specifically held so that the
victim can testify in a protected setting to avoid public humiliation by disclosure of unrelated
and irrelevant evidence of prior sexual conduct, in this case, prior sexual abuse. See Bond,
supra. Under the facts of this case, the circuit court erred in concluding that S.O. need not
testify at the in camera hearing. However, for the reasons noted above, Joyner suffered no
prejudice. Therefore, I concur in the decision to affirm the circuit court.
D ANIELSON, J., joins.
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