Allen v. State

• Decision Date: 25 September 2008
• Docket Number: No. CR 08-47.,CR 08-47.
• Citation: Allen v. State, 374 Ark. 309, 287 S.W.3d 579 (Ark. 2008)
• Parties: Dennis Ray ALLEN, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

287 S.W.3d 579

374 Ark. 309

Dennis Ray ALLEN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 08-47.

Supreme Court of Arkansas.

September 25, 2008.

Teresa M. Smith, Attorney at Law, PLLC, by: Teresa M. Smith, Carlisle, AR, for appellant.

Dustin McDaniel, Att'y Gen., by: Farhan Khan, Ass't Att'y Gen., for appellee.

ANNABELLE CLINTON IMBER, Justice.

Appellant Dennis Ray Allen was convicted by a Lonoke County jury of four counts of rape and four counts of second-degree sexual assault in connection with the alleged abuse of four of his minor step-grandchildren. He was sentenced to life imprisonment in the Arkansas Department of Correction on each of the rape convictions and to twenty years' imprisonment on each of the sexual-assault convictions, totaling four life sentences plus eighty years. The circuit court accepted the jury's recommendation that the sentences be served consecutively. Allen now appeals, alleging two points of error: 1) the circuit court erred in refusing to allow him to question one of the State's witnesses regarding her alleged sexual relationship with her son; and 2) the circuit court erred in allowing testimony over his objections pursuant to Arkansas Rules of Evidence 404(b) and 403, when the alleged prior bad acts occurred many years ago and were not similar in nature to the charged acts, and when the prejudice to Allen far outweighed any probative value. Because Allen was sentenced to terms of life imprisonment, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2008). We find no error and affirm.

In August of 2003, Allen and his wife had legal guardianship of three female children. Their mother was one of his wife's daughters from a prior marriage. At that time, the Arkansas State Police Crimes Against Children Division interviewed C.H., A.C., and C.C., who were approximately eleven, nine, and eight years old, respectively, in an effort to determine whether Allen was abusing them. Each of the children denied that they were being abused. Due to the statement of a witness, the children were interviewed again in March of 2004, by both the Crimes Against Children Division and the local police department. They again denied any abuse. In December of 2005, however, K.K., the children's thirteen-year-old male cousin, reported that he had been abused by Allen. K.K. disclosed to his mother, Allen's other stepdaughter, that Allen had touched his penis and forced him to perform oral sex on multiple occasions while he was staying at his grandparents' house. K.K.'s mother notified the local police department and informed her sister of the allegations. C.H., A.C., and C.C., who by that time had returned to their mother's custody, disclosed that they had been abused as well. Allen was arrested on January 17, 2006, and charged with four counts of rape and four counts of sexual assault in the second degree.

At trial, each of the four children testified that Allen had forced them to touch his penis and to perform oral sex on him. The girls testified that Allen had penetrated them digitally and with toys and markers. C.H., A.C., and K.K. all testified to Allen's use of dildos; K.K. indicated that Allen had inserted them into K.K.'s anus on approximately three occasions. C.H. and A.C. both testified that Allen had attempted sexual intercourse with them. C.H. and A.C. also testified that Allen forced them to remove their clothing and dance for him and for other adults, took photographs of them naked, and showed them pornography. According to C.H.'s testimony, Allen also forced the girls to "do stuff" to each other and forced K.K. to perform oral sex on the girls. K.K. testified that Allen tried to force him and A.C. to attempt sexual intercourse, in the presence of another adult. Finally, each of the girls explained that they had not disclosed the abuse earlier because Allen had threatened to kill them if they told anyone. C.C. testified that Allen had shown her his gun. K.K. testified that Allen beat them and that they were therefore afraid to disclose the abuse. The only witness called by the defense was a board-certified urologist who testified to having treated Allen for erectile dysfunction and a painful condition on his penis. The jury returned guilty verdicts on all eight of the charges.

Allen's first challenge on appeal involves the trial testimony of K.K.'s mother. Upon being called by the State, she testified that she noticed a change in her son's behavior, including depression and weight gain, prior to his informing her of the abuse. At that point in her testimony, Allen asked, "Is that when you were having sex with him?" Allen's counsel indicated a desire to question K.K.'s mother about this allegation, in an effort to show that she and her son brought false accusations against Allen in response to Allen's threat to expose their sexual relationship. The State moved to exclude such testimony as prohibited by the rape-shield statute. Following an off-the-record bench conference, the circuit court granted the State's motion.

Allen contends that the court's ruling was in error. Specifically, he claims that evidence of a sexual relationship between K.K. and his mother was relevant to attack their credibility and was not barred by the rape-shield statute, as it was directly related to the issue of his guilt or innocence. In discussing our standard of review for evidentiary rulings generally, we have said that circuit courts have broad discretion and that a circuit court's ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. Hickman v. State, 372 Ark. 438, 443, 277 S.W.3d 217, 222 (2008). More specifically, with regard to evidence subject to the rape-shield statute, we have said that the circuit court is vested with a great deal of discretion in ruling whether evidence is relevant. Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008). This court will not reverse the circuit court's decision as to the admissibility of rape-shield evidence unless its ruling constituted clear error or a manifest abuse of discretion. Id. at 258, 273 S.W.3d at 491.

We are precluded from addressing Allen's rape-shield argument, as it was not preserved for our review. The rape-shield statute provides that evidence of specific instances of the victim's prior sexual conduct with any person 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 or for any other purpose. Ark.Code Ann. § 16-42-101(b) (Repl.1999). However, evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim's prior sexual conduct with any person may be admitted if its relevancy is determined by the court. Id. § 16-42-101(c). To establish such relevancy, the defendant must file a written motion, before resting, stating that the defendant has an offer of relevant evidence prohibited by the statute and describing the purpose for which the evidence is believed relevant. Id. § 16-42-101(c)(1). The court then holds an in camera hearing on the motion. Id. § 16-42-101(c)(2)(A). A written record must be made of the hearing. Id. § 16-42-101(c)(2)(B). If the 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 court makes a written order detailing what evidence is admissible and what testimony may be elicited based upon that evidence. Id. § 16-42-101(c)(2)(C).

Allen failed to follow the procedure set forth in Arkansas Code Annotated section 16-42-101(c) for establishing relevancy and admissibility of evidence otherwise excluded by the rape-shield statute. The record does not contain a written motion filed by Allen requesting an exception for relevant evidence, nor does it contain a written record of an in camera hearing. The record does indicate that the circuit court held an off-the-record bench conference with counsel after the State moved to prohibit the testimony. However, section 16-42-101(c) is clear: the defendant must file a written motion, and a written record must be made of the in camera hearing on the motion.

We have noted that admissibility of a victim's prior sexual conduct as an exception under the rape-shield statute must be determined in accordance with the procedures set forth in section 16-42-101(c). Laughlin v. State, 316 Ark. 489, 497, 872 S.W.2d 848, 853 (1994). "In order to set in motion a relevancy decision by the trial court regarding prior sexual conduct, § 16-42-101(c)(1) requires that the defendant file a written motion with the court before resting to the effect that the defendant desires to present evidence of the victim's past sexual activity." Id., 872 S.W.2d at 853. In Laughlin, where no written motion was filed and no in camera hearing was conducted as required by section 16-42-101(c), the procedure followed was "defective and insufficient to invoke a relevancy determination under the Rape Shield Statute." Id. at 497-98, 872 S.W.2d at 853. This court thus rejected the appellant's relevancy arguments on appeal. Id., 872 S.W.2d at 853. We must similarly reject Allen's arguments. Because Allen failed to follow the proper procedure in requesting an exception, we affirm the circuit court's decision.

Allen's second challenge on appeal involves the testimony of James Sweeny, another prosecution witness. Sweeny testified that he was approximately twelve years old when he met Allen, who was his grandmother's next-door neighbor. At that time, Allen would have been in his early thirties. The two began a friendship, which Sweeny characterized as a "role model type situation at first." Sweeny testified that Allen called him "son" and that he called Allen "dad." He also testified that Allen bought things for him, took him out to eat, and gave him special attention at a...