Evans v. State
| Decision Date | 11 July 1994 |
| Docket Number | No. CR,CR |
| Citation | 878 S.W.2d 750,317 Ark. 532 |
| Parties | Rick Lee EVANS, Appellant, v. STATE of Arkansas, Appellee. 93-1316. |
| Court | Arkansas Supreme Court |
Doug Norwood, Rogers, for appellant.
Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.
Rick Lee Evans was charged with the crime of incest [Ark.Code Ann. § 5-26-202 (Repl.1993) ], in that, being over the age of sixteen years, he engaged in sexual intercourse with his stepdaughter, B.R., between October 1990 and July, 1991. Evans was convicted and sentenced to three years in the Department of Correction. On appeal to this court Evans presents six points for reversal. Finding no error, we affirm the judgment appealed from.
The following is an abridgement of the state's proof:
Michael Ryan, father of the prosecutrix, testified that he and B.R.'s mother divorced when B.R. was only a few months old; that in July, 1991, his daughter came to his home in Afton, Oklahoma, for a visit. She intended to stay for two weeks. She had been there only three or four days when he came home and noticed she had been crying. She said Rick had called, he wanted her to come home and if she didn't he was going to kill himself. Ryan wondered what kind of man would make threats of that kind. That night Evans called again and asked if he could apologize to B.R. Ryan listened on an extension as Evans said he was sorry but then said he wanted her home, that he was lonesome and wanted her there at night to keep him company, that if she didn't come home tomorrow he would "blow his brains out." With that Ryan got on the phone and the two men had a heated exchange.
The episode caused Ryan to wonder whether Evans had molested his daughter. Next day he asked her about it; she denied any molestation, but had "a scared, hurt look, like she was afraid." With that Ryan resolved to get custody of B.R., he obtained temporary custody that summer and permanent custody in the fall. The following March, Ryan learned Evans had sexually abused her and he reported it to the Department of Human Services.
Carol Anna Helm testified that Michael Ryan was her brother and the two lived a block apart in Afton. Her daughter, Arlena, and her cousin, B.R., were "like sisters." In early March, B.R. was spending the night with Arlena. She heard the girls talking and around midnight Arlena came into her bedroom crying hysterically, urging her to see about B.R. Mrs. Helm found the child on the floor of the dining room in a fetal position crying, "a crumpled mass of child." Mrs. Helm asked what was wrong and she said, "Rick raped me." She rocked the child for several hours and then called her brother to tell him.
B.R. testified that she was then sixteen-years-old and in the ninth grade at Afton. Arlena Helm, her cousin, was her best friend. Her mother had married Rick Evans, now forty-two, when she was seven; that Rick had been good to her, she called him "Dad," that she had loved him, that he had a temper and had threatened suicide.
B.R. testified Rick saw her looking at her mother's medical books and he started explaining things about male and female anatomy. He told her that the tip of a man's penis is "really sensitive if something goes wrong." These conversations made her feel uncomfortable. In October, around her fourteenth birthday, she was in the bathtub with the door closed. Rick came in and said he'd show her how to wash. She said she already knew how, but he said he would show her better. Taking a washcloth, he washed her neck, back, buttocks, breast, vagina and "between my vagina." He gave her more baths, shaved her legs, underarms and vagina. She said she hadn't needed his help, nor wanted it, but did not know how to tell him to stop. One night after her bath he told her to go to his bedroom and get in bed. He then took off his clothes and engaged in sexual intercourse, removing his penis just before ejaculating. She said this continued on the nights when her mother worked up until July, 1991, when she went to Oklahoma. She testified to sexual intercourse in various positions, with oral sex included. She said that at times he ejaculated inside her, but more often he would take it out before ejaculating. He told her she would not get pregnant because he had had a vasectomy. She said she was afraid to tell her mother for fear that she would not believe her and because she felt it was her fault. She described one time when they were in the living room and Rick sucked on her neck. Next day at school her friends teased her about having a "hickey" and she then saw the mark on her neck.
David Sears testified he was B.R.'s uncle, her mother's brother; that during a visit he saw the hickey on B.R.'s neck and commented on it and Rick said, "we were just playing around." Sears spoke to his wife about it because he thought it wasn't proper.
Detective Joseph Landers introduced a taped interview with Rick Evans recorded on March 22, 1992, and the tape was played to the jury. Evans denied having had intercourse with his stepdaughter, but admitted to having given her baths and shaving her legs and threatening suicide if she did not come home:
A. I remember talking to her, yeah.
At the end of Detective Landers's testimony the state and the defense rested.
Evans requested a pretrial hearing pursuant to the Arkansas Rape Shield Statute, Ark.Code Ann. § 16-42-101 (Repl.1994). He proposed to introduce evidence that in her initial statement to the police, B.R. denied having had sex with anyone other than her stepfather, whereas a year later she informed the prosecutor that after she had gone to live with her father she had sexual intercourse "about ten times" with someone in Oklahoma. The state promptly notified the defense of this development and B.R. admitted at the hearing that she had originally lied to the police. At the close of the hearing the following colloquy occurred:
Court: My ruling would be, at least at this point, that the subsequent sexual conduct of the victim is not relevant and not to be inquired into.
Defense: Okay, your Honor. Is the Court making that ruling pursuant to this particular statute, on the Rape Shield Statute?
Court: I'm making it more as a matter of evidence and relevancy.
Defense: Okay. The Rape Shield Statute is--my understanding of the statute, it covers a particular class of cases, which incest is not in that class of cases.
Court: Right.
State: Your Honor, the Supreme Court has held in carnal abuse and incest cases that the Rape Shield Statute applies, so I don't see any problem there. I'd refer the Court to--
Defense: I don't think that's the law, Judge.
State: Fields v. State, which is a Supreme Court case, 281 Ark. 43, 661 S.W.2d 359. It's a 1983 Supreme Court case.
Court: Well whether it's under 16-42-101 or under the general rules of evidence, I don't think the subsequent sexual conduct of the--well, my ruling is that it is not admissible.
Later in the proceedings, counsel again asked whether the Rape Shield Statute applied to incest cases:
Defense: And the other thing is did the court rule that the Rape Shield Statute applies to incest cases?
Court: No, I didn't. You're the one that asked for the hearing.
Defense: I understand that, but I'm asking the Court now to tell me does the Rape Shield Statute cover incest cases.
Court: I've ruled that the testimony is not admissible and that's all I'm saying.
In drafting Ark.Code Ann. § 16-42-101 (Repl.1994), the legislature specifically listed which offenses were to be included under the statute's umbrella of protection, and incest is not...
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