Drymon v. State

• Decision Date: 02 May 1994
• Docket Number: No. CR,CR
• Citation: 875 S.W.2d 73,316 Ark. 799
• Parties: Allen Eugene DRYMON, Appellant, v. STATE of Arkansas, Appellee. 93-1265.
• Court: Arkansas Supreme Court

Page 73

875 S.W.2d 73

316 Ark. 799

Allen Eugene DRYMON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 93-1265.

Supreme Court of Arkansas.

May 2, 1994.

Stephen L. Traylor, Springdale, for appellant.

Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.

BROWN, Justice.

Appellant Allen Eugene Drymon appeals his judgment of conviction on four counts of rape involving his two minor stepdaughters, A.J. and H.J. He was sentenced to a total term of 50 years. He now raises four points for reversal: (1) whether the trial court erred by holding a Rape Shield hearing less than three days before trial; (2) whether the trial court abused its discretion by refusing to admit instances of alleged prior sexual conduct of the victims; (3) whether the trial court abused its discretion by refusing to grant a mistrial when defense counsel referred to prior sexual conduct in his opening statement; and (4) whether the trial court abused its discretion by refusing to suppress Drymon's incriminating statement on grounds of intoxication. We affirm the judgment.

Drymon, his wife (Elaine Drymon), her two daughters (H.J. and A.J.), and three other children moved from Missouri to a home near Prairie Grove in 1987. Elaine Drymon was employed at Braum's restaurant and went to work at 3:00 p.m. in the afternoon and worked until midnight. Drymon was employed at Chicken Pullman and went to work at approximately 5:30 p.m., according to several witnesses, although Drymon himself testified that he went to work earlier. In September of 1992, Elaine Drymon was told by her young son that Drymon was abusing her two daughters. She promptly advised the Washington County Sheriff's Office of this. As part of the Department's investigation, Deputy Sheriff Joanne Frieheit took a statement from Drymon in which he incriminated himself. Drymon was then charged with four (4) counts of rape, consisting of sexual intercourse and deviate sexual activity with his stepdaughters, H.J., who was age 11 at the time Drymon was charged, and A.J., who was age 13 at that time.

On February 10, 1993, Drymon moved to suppress the custodial statement which he gave to Deputy Frieheit and asserted that when the statement was made, he was so intoxicated that he was not capable of knowingly and intelligently waiving his rights against self-incrimination. On March 8, 1993, he filed a motion to determine the admissibility of the victims' prior sexual conduct pursuant to Ark.Code Ann. § 16-42-101 (1987), commonly known as the Rape Shield Statute. The motion alleged that the victims' past conduct was relevant to Drymon's defense and requested that the court schedule a hearing to determine the relevancy of the evidence.

The day before the trial, on May 3, 1993, Drymon asked for a hearing on his two pre-trial motions, and the hearing was commenced late that afternoon and continued on the next day. Deputy Frieheit testified that she observed Drymon in her car during the twenty minute drive from Springdale to the Sheriff's office in Fayetteville on the day he made his statement. She stated that she smelled no alcohol on his breath, that he did not behave as though he were intoxicated, and that his speech was clear and not slurred. She added that upon arriving at the Sheriff's Department, Drymon was advised of his rights and waived them. She produced the waiver-of-rights form signed by him. She then conducted an interview with Drymon which took ten minutes and resulted in the incriminating statement. The interview was taped.

Other testimony at the pre-trial hearing was taken from Deputy Sheriff Charles Rexford, who testified that Drymon showed no signs of intoxication, and from Drymon himself who related that he had been drinking for two days prior to his arrest and had also smoked marijuana. He further stated that his supervisor, Harvey Ward, refused to let him work the day of his statement because he was too intoxicated.

The court next proceeded to hear testimony on Drymon's motion to permit evidence of the victims' prior sexual conduct. Drymon objected to the timing of the hearing on the basis that the hearing was not conducted three days before trial as the Rape Shield Statute required. The trial court overruled the objection and stated that it did not know about the motion until advised by defense counsel on May 3, 1993. Once it learned of the motion, a hearing was scheduled immediately.

Drymon testified that he had witnessed the victims involved in "sex play" on several occasions. He stated that he saw H.J. masturbate with her fingers and found her in bed one time with her younger brother. He also stated that he witnessed A.J masturbating with a doll leg and on another occasion with her fingers.

Drymon further imparted that he planned to testify at trial that A.J. had attempted to have sex with him. He stated that this occurred when he was drunk, and when he realized it was A.J. and not his wife, he terminated the activity. He testified that H.J. also initiated sexual contact with him but that it never was consummated. He stated that there was no further sexual contact with the two girls.

Drymon's third example of past sexual conduct was that A.J. had walked in front of him and Robert Williams, a friend, wearing a pair of pants with a hole in the seat which exposed her backside. Finally, he advised the trial court that he planned to have a psychologist, Dr. Bruce Allen, testify at trial that the victims had been "sexualized" by the dysfunctional nature of the family and by exposure to pornography.

The trial court ruled on May 4, 1993, that the motion to suppress Drymon's statement was denied and that the masturbation testimony, the torn-pants testimony, and the evidence by the psychologist of a "sexualized" environment were inadmissible. The trial court made no mention in its ruling of the two incidents where Drymon claimed that the two girls had tried to seduce him when he was intoxicated.

Following a brief recess, the trial court proceeded with jury selection and opening statements. During opening statement, defense counsel stated:

What I'm about to tell you goes against my nature as a defense attorney. And I want to come in here and tell you everything is bright and rosy and we're here because of a mistake, but I don't believe that's true. There were potentially two acts of sexual conduct or sexual--well, conduct may be the best word--between Allen Drymon and these two girls. Now, keep in mind--

At this point, the State objected, and a conference was held at the bench. Drymon's counsel explained that he intended to refer to the two times when Drymon found the girls trying to have sex with him when he was drunk and that this evidence had not been excluded by the court under the Rape Shield Statute. The trial court sustained the State's objection, and defense counsel moved for a mistrial. The motion was denied, and though Drymon's counsel did not request it, the trial court admonished the jury:

Ladies and gentlemen of the jury, I'm going to admonish you to disregard the last statement of Mr. Taylor in his opening statement.

Following the trial, the jury found Drymon guilty of all four counts of rape, and he was sentenced to a total term of fifty years.

I. RAPE SHIELD HEARING

For his first point, Drymon urges that the trial court violated the Rape Shield Statute by not holding a hearing three days before trial. Instead, the hearing was held the day before the trial (May 3, 1993) and the morning of the trial. The relevant subsection of the Rape Shield Statute reads:

(2)(A) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the court may for good cause permit.

Ark.Code Ann. § 16-42-101(c)(2)(A) (1987).

Drymon filed his motion to admit evidence of the victims' alleged prior sexual conduct on March 8, 1993. At that time trial was set in April, 1993. A continuance was ordered, and trial was reset for May 4, 1993.

The Rape Shield Statute clearly provides that a hearing shall be held on a motion. However, the timing of the hearing is not mandatory and may occur closer to the trial as the court permits "for good cause." In this instance, the trial court stated that it was unaware of the motion or that Drymon wanted a hearing on it until May 3, 1993. Furthermore, despite Drymon's protest that the ruling was needed in order to adequately prepare for trial, it was his responsibility to pursue the motion and to bring the matter of a hearing to the court's attention. He did not do this until the day before the trial.

We hold that good cause for conducting the hearing within three days of trial clearly existed. In addition, Drymon's claim of prejudice resulting from the timing of the hearing is not convincing for several reasons. For one thing, he received a full hearing on his motion. For another, he was granted the opportunity to present witnesses in support of his motion, and at the close of the hearing, he stated that he had no other witnesses to present. He also failed to request a continuance of the trial to prepare his defense in light of the trial court's adverse rulings on his pre-trial motions. Under these circumstances, we discern no prejudice to Drymon's case.

II. EXCLUSION OF PROPOSED EVIDENCE UNDER THE RAPE SHIELD STATUTE

Drymon next asserts that the trial court abused its discretion by ruling that certain proposed incidents of prior sexual conduct by the victims were inadmissible.

The admissibility of a victim's prior sexual conduct is determined pursuant to the Rape Shield Statute and is discretionary with the trial court. Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994). In evaluating the admissibility of such evidence under the statute, the court must determine whether the probative value of the evidence outweighs its inflammatory nature. Id.; Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989). We will not disturb the trial court's...