Boreck v. State, CR
| Decision Date | 23 March 1981 |
| Docket Number | No. CR,CR |
| Citation | 272 Ark. 240,613 S.W.2d 96 |
| Parties | Robert Lee BORECK, Appellant, v. STATE of Arkansas, Appellee. 80-244. |
| Court | Arkansas Supreme Court |
James E. Davis, Texarkana, for appellant.
Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.
Robert Lee Boreck, the appellant, is charged with rape. He confessed to the crime, and the trial court found, at a Denno hearing, that the confession was freely and voluntarily given. Appellant then filed a motion, pursuant to Ark.Stat.Ann. § 41-1810.2 (Repl. 1977), for a ruling authorizing introduction of evidence about prior sexual conduct between himself and the prosecuting witness and between the prosecuting witness and other persons. At the evidentiary hearing the appellant denied that he had sexual intercourse with the prosecuting witness on the night in question, testified he did not remember giving the confession, and denied making the confession. He testified that he had consensual sexual intercourse with the prosecutrix one month before she was raped. The trial court ruled the requested evidence was not admissible, and appellant filed this interlocutory appeal.
The admissibility of evidence of a victim's prior sexual conduct is, by the terms of Ark.Stat.Ann. § 41-1810.1 (Repl. 1977), barred from admission at trial. The only exception to this exclusionary rule occurs when the trial court finds the evidence is relevant to the current charge and its probative value outweighs its inflammatory or prejudicial nature.
Prior acts of sexual conduct may be evidence of consent in a subsequent sexual act. Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979). But in this case the appellant denies he had sexual intercourse with the prosecutrix on the date she was raped; consequently, he does not claim she consented. The testimony about sexual intercourse one month prior to the offense is prohibited by the statute cited above. The same reasoning applies to testimony about prior sexual conduct between the prosecutrix and other persons.
The trial court was correct in ruling that on the facts now before us the evidence should not be admitted.
Appellant contends that he had a right to cross-examine the complaining witness at the evidentiary hearing. We disagree. The purpose of this statutory preliminary hearing is to review the evidence to determine relevancy and admissibility and then to determine whether the defendant has a valid reason to...
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Manees v. State, CR
...State, supra; Dorn v. State, 267 Ark. 365, 590 S.W.2d 297 (1979); Kemp v. State, 270 Ark. 835, 606 S.W.2d 573 (1980); Boreck v. State, 272 Ark. 240, 613 S.W.2d 96 (1981). The consensus ruling of the foregoing cases is to the effect that all prior acts of sexual conduct are inadmissible unle......
- Warren v. State, CR
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08 41 MOTION TO ADMIT EVIDENCE OF OTHER ACTS WITH COMPLAINING WITNESS UNDER THE ARKANSAS RAPE SHIELD LAWS
...is essentially only proper when consent is a defense because prior consensual acts with the defendant bears on consent; Boreck v. State, 272 Ark. 240, 613 S.W.2d 96 (1981); Bobo v. State, 267 Ark. 1, 589 S.W.2d 5 (1979); Herren v. State, 2018 Ark. App. 528, 563 S.W.3d 606 (2018); but it has......