Gaines v. State

• Decision Date: 28 June 1993
• Docket Number: No. CR,CR
• Citation: 313 Ark. 561,855 S.W.2d 956
• Parties: Anthony GAINES, Appellant, v. STATE of Arkansas, Appellee. 92-1471.
• Court: Arkansas Supreme Court

Page 956

855 S.W.2d 956

313 Ark. 561

Anthony GAINES, Appellant, v. STATE of Arkansas, Appellee.

No. CR 92-1471.

Supreme Court of Arkansas.

June 28, 1993.

William R. Simpson, Public Defender, Phillip Hendry, Sandy Sherrod, Deputy Public Defenders, Little Rock, for appellant.

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

HOLT, Chief Justice.

Anthony Gaines appeals from his criminal conviction for rape. Gaines was charged by felony information filed on March 16, 1992 with the crime of raping a fifteen-year-old girl on or about November 16, 1991. We affirm.

The prosecuting attorney requested that Gaines be sentenced under our felony sentencing statute for habitual offenders, Ark.Code Ann. § 5-4-501 (1987), on the basis that Gaines had previously been convicted of two felonies. The record reflects that Gaines was previously convicted of aggravated assault and false imprisonment in the first degree and was sentenced to six years in the Department of Correction for each charge with four years suspended and credit for ninety-one days served.

The same day as the rape charge was filed, the State filed a petition to revoke Gaines' two suspended sentences on the basis that he had violated the conditions of his suspended sentences.

The evidence presented by the State was that the victim was fifteen years old at the time of the rape and that Anthony Gaines was and remained at the time of his trial the boyfriend of the victim's aunt, Geraldine Pierce. The victim testified that on November 16, 1991, she and her cousin, who was fifteen at the time of the trial, went driving around with Dale Fairchild, her Aunt Kim's husband, and Anthony Gaines in Fairchild's car. During the evening, they drank alcohol and smoked marijuana. The victim said this made her sick, and she told Fairchild she wanted to go home. They continued to drive around and made a few stops. Fairchild and Gaines bought and drank more liquor. They ended up in someone's backyard, where the victim said she passed out. She testified that Fairchild was fearful of taking them home in their condition, so they went to the Sportsman's Inn around midnight to sleep. In the hotel room, the victim and her cousin got in bed fully clothed with their shoes on. When the victim went to sleep, she said Fairchild and Gaines were sitting in a chair and on a table, respectively, and were watching television. The victim said she woke up when she "had to go to the bathroom" and found Gaines on top of her. She had been undressed from the waist down. He told her to be quiet and that he was "Dale." She tried to get up and then Gaines stood up. The victim testified that Gaines had penetrated her. The victim's cousin awoke and turned the bathroom light on, and Gaines was next to the victim with his pants down around his ankles. Fairchild woke up and took them all home in his car.

Geraldine Pierce, Gaines' girlfriend and the victim's aunt, testified as a defense witness that her sister, Kay Kay Mathis, the mother of the victim's cousin, came to her house the day before the rape occurred. Ms. Pierce said Ms. Mathis threatened her and Gaines although she did not testify as to why. The import of this testimony was never made clear by the defense since the victim was not involved in this dispute. The defense then called, as its only other witness, the policeman who took the victim's statement at the hospital the night of the rape, and he recounted the victim's statement of the events that occurred in the motel room the night of November 16, 1991. The policeman was questioned about the report he made that night, but that report was not introduced into evidence nor was there any mention of its contents relating to whether the victim was a virgin at the time of the rape.

The jury found Gaines guilty of rape and, after instruction on the habitual offender statute, sentenced him to sixty years in prison. Based on the evidence presented at trial, the judge then revoked Gaines' suspended sentences for the prior assault and false imprisonment charges and sentenced him to four years on each count to be served concurrently to each other but consecutively to the rape sentence.

This appeal followed.

RAPE SHIELD

On July 16, 1992, Gaines filed a motion for a pretrial hearing as provided by Ark.Code Ann. § 16-42-101 (1987), our rape shield law. Gaines argued in his motion that the rape victim had given the North Little Rock Police Department a statement that she was a virgin at the time she was raped and that he sought to impeach her credibility by presenting witnesses at trial who would testify that this was not true.

Prior to trial, two omnibus hearings were held where this motion was discussed. At the first, the prosecutor made it clear that she did not intend to introduce the victim's statement that she was a virgin prior to the rape. The trial court preliminarily ruled that the defense could have a witness present at trial to rebut that statement if she made it, although no final rulings were made. The second hearing was solely on the issue of the admissibility of the victim's purported virginity. The prosecutor again told the court that she did not intend to bring this up on direct examination of the victim and besides, this statute was designed to protect the victim from unnecessary humiliation; that allowing this evidence would shift the focus from Gaines to the victim's alleged prior sexual conduct and that the victim's virginity was not relevant. After hearing arguments from counsel on both sides, the trial court issued a letter ruling denying the defense the right to ask either the victim or the police officer who interviewed her if the victim was a virgin prior to the rape.

First, we observe that Gaines failed to abstract the court's final letter ruling on this issue but merely listed in his brief the title, "Order," with a transcript page number. Directly below this listing is found an abstractor's note that:

The court's pretrial ruling on August 18, 1992, that no testimony would be allowed at trial concerning the victim's prior sexual conduct, was inadvertently omitted from the appeal transcript. The court permitted the Appellant to supplement the record on appeal, in an Order dated (blank).

We usually do not consider arguments on appeal where the final order appealed from has not been properly abstracted by the appellant. Ark.R.Sup.Ct. 4-2. We will do so in this instance as we are able to glean the trial court's finding from the abstractor's note contained in Gaines' brief.

Our rape shield statute, Ark.Code Ann. § 16-42-101 (1987) reads in pertinent part:

(a) As used in this section, unless the context otherwise requires, "sexual conduct" means deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined by § 5-14-101.

(b) In any criminal prosecution under §§ 5-14-103--5-14-110, 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 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.

(c) Notwithstanding the prohibition contained in subsection (b) of this section, evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim's prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of the evidence is determined in the following manner:

(1) A written motion shall be filed by the defendant with the court at any time prior to the time the defense rests stating that the defendant has an offer of relevant evidence of the victim's prior sexual conduct and the purpose for which the evidence is believed relevant.

(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.

(B) A written record shall be made of the in camera hearing and shall be furnished to the Arkansas Supreme Court on appeal.

(C) If, following the hearing, 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 shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence.

....

Obviously, this statute is not a total bar to evidence of a victim's sexual conduct but instead makes its admissibility discretionary with the trial judge pursuant to the procedures set out at Ark.Code Ann. § 16-42-101(c)(1-3) (1987). The trial court is vested with a great deal of discretion in ruling whether prior sexual conduct of a prosecuting witness is relevant, and we do not overturn its decision unless it was clearly erroneous. Manees v. State, 274 Ark. 69, 622 S.W.2d 166 (1981); Houston v. State, 266 Ark. 257, 582 S.W.2d 958 (1979). We have held that our rape shield statute is intended to protect victims of rape...