Joyner v. State
| Decision Date | 02 April 2009 |
| Docket Number | No. CR 08-824.,CR 08-824. |
| Citation | 2009 Ark. 168,303 S.W.3d 54 |
| Parties | Timothy Justin JOYNER, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Jeff Rosenzweig, Little Rock, for appellant.
Dustin McDaniel, Att'y Gen., by: Deborah Nolan Gore, Ass't Att'y Gen., Little Rock, for appellee.
[1]
This appeal arises from the conviction of Appellant Timothy Joyner of four counts of rape and one count of terroristic threatening in the first degree. Appellant was sentenced to forty years on each count of rape and six years on the count of terroristic threatening, all to run concurrently. On appeal, Appellant asserts that (1) the circuit court erred in denying his motion to permit testimony concerning prior claims of sexual abuse made by the victim; (2) the circuit court erred in refusing to grant a mistrial or a new trial; and (3) the circuit court erred in refusing to instruct on the lesser offense of sexual assault in the second degree on one of the rape counts. We affirm.
On May 17, 2006, an information was filed charging Appellant with four counts of rape, each of which was a class "Y" felony in violation of Arkansas Code Annotated § 5-14-103.
[2]
Each count charged him with unlawfully and feloniously engaging in sexual intercourse or deviate sexual activity with S.O., who was less than fourteen years of age.
On April 25 and December 13, 2007, Appellant filed motions to admit evidence of prior sexual conduct of S.O., specifically evidence that she had made prior allegations of sexual assault against other males in a familial relationship. Appellant alleged that S.O. was the victim of two prior sexual assaults. He claimed that the evidence of two prior sexual assaults could be the cause of injury to S.O.'s vaginal area. The two alleged incidents involved a man named Lavelle in 2000 and a man named Chuck McGhee1 in 2001.
On December 17, 2007, the Stone County Circuit Court held an in camera hearing on the rape-shield motion. Appellant called Tammy Mosley, the mother of S.O.'s best friend, D.D., who testified that she had knowledge of previous sexual abuse of S.O. Appellant also presented an affidavit of Tammy stating that she had "first-hand knowledge of the molestation of [S.O.] by Mr. [McGhee] in 2001" and that "[S.O.] was not a virgin when she accused [Appellant] of rape." Appellant also offered the affidavit of D.D., Tammy's daughter. The affidavit was excluded on hearsay grounds, but was proffered into the record. D.D.'s affidavit stated that both she and S.O. were touched in their private areas by Lavelle, that S.O. was molested many times in 2000 and 2001, and that S.O. was not a virgin when she accused Appellant of rape. It was reported to Human Services that S.O.'s
[3]
mother walked in on Chuck McGhee having sex with S.O. After the testimony of Tammy and D.D., Appellant asked to call S.O. to testify in the in camera hearing.
Relying on Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979), the circuit court ruled that there is no requirement for S.O. to present herself for questioning by the accused and denied Appellant's request to call S.O. to the stand. The circuit court ruled that Appellant did not offer proof that the alleged prior act occurred and that the rape-shield statute precluded any inquiry into the prior sexual conduct of S.O.
On the first day of trial, Jennifer Beaty, the DNA analyst from the Arkansas Crime Lab, testified that DNA found on a pair of S.O.'s underwear belonged to S.O. within a reasonable degree of scientific certainty. At the beginning of Appellant's cross-examination of Beaty, he moved for a mistrial on the grounds that she had changed her opinion and that he would not be able to effectively cross-examine her due to the sudden change in her opinion. The circuit court denied the motion for mistrial on the basis that it was not timely made and because all of the materials from Beaty's file had been supplied to Appellant.
On December 20, 2007, Appellant moved for a new trial pursuant to Arkansas Code Annotated section 16-89-130 and Arkansas Rule of Criminal Procedure 33.3(a), arguing again that he never received notice of Beaty's changed opinion. The circuit court reaffirmed its previous ruling that the motion for mistrial was not timely and denied Appellant's motion for new trial.
At the end of trial, Appellant asked the circuit court to instruct the jury on sexual
[4]
assault in the second degree, as a lesser-included offense of rape, arguing that the State failed to provide any substantial evidence that S.O. was under the age of fourteen, that he was over the age of eighteen, or that he had any sexual contact with her. The circuit court denied the motion. Appellant now brings this appeal.
Rape-shield statute
For his first point on appeal, Appellant asserts that the circuit court erred in denying his motion to permit testimony concerning prior claims of sexual abuse made by S.O. Specifically, Appellant contends that the testimony would demonstrate the knowledge of S.O. to make allegations of sexual abuse and that the purported injury to her genital area could have been from prior sexual conduct. He further asserts that the circuit court erred in not allowing him to question S.O. at the in camera hearing on the rape-shield motion.
The rape-shield statute, codified at Arkansas Code Annotated § 16-42-101, states, in pertinent part:
(b) In any criminal prosecution under § 5-14-101 et seq. or § 5-26-202, 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, evidence of a victim's prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the
[5]
victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
Thus, under our rape-shield law, evidence of a victim's prior sexual conduct is not admissible by the defendant to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. Ark.Code Ann. § 16-42-101(b); Bond v. State, 374 Ark. 332, 288 S.W.3d 206 (2008). An exception is granted where the circuit court, at an in camera hearing, makes a written determination that such evidence is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature. Id. The statute's purpose is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant's guilt. Id. Accordingly, the circuit court is vested with a great deal of discretion in determining whether the evidence is relevant, and we will not overturn the circuit court's decision unless it constituted clear error or a manifest abuse of discretion. Id.
Appellant relies on State v. Townsend, 366 Ark. 152, 233 S.W.3d 680 (2006), for his assertion that the State's introduction of medical evidence involving the injury to S.O.'s vaginal area makes questioning concerning an alternative source for the injury relevant. In Townsend, we concluded that evidence of prior sexual assault of the victim was not relevant to the allegations against the accused "unless the State introduces medical evidence consistent with those allegations." Id. at 161, 233 S.W.3d at 687. Here, the State
[6]
introduced the testimony of Dr. Jerry Jones at trial. Jones practices in child abuse pediatrics at Arkansas Children's Hospital. Jones testified that he examined S.O. in May of 2006. He stated that there was a piece of S.O.'s hymen missing. He also stated that this was not a fresh injury, but was from sometime in the past. He said that the injury was "at least a week old probably at least two weeks." He stated that it was possible for the injury to be years old. Dr. Jones could not say for sure when the injury happened, stating that at some point in S.O.'s life, she was penetrated by some object, and it did damage to the hymen. Here, the State has introduced medical evidence consistent with the allegations against the accused, making evidence of S.O.'s past sexual conduct relevant for Appellant's defense.
In Townsend, we recognized that evidence of a child victim's prior sexual conduct could be relevant to rebut the weighty inference that the victim must have received his or her knowledge of sexual matters from the alleged encounters with the defendant. We adopted a five-factor test from State v. Pulizzano, 155 Wis.2d 633, 456 N.W.2d 325 (1990), for determining whether evidence of a child victim's prior sexual conduct is admissible for the limited purpose of proving an alternative source for the child's sexual knowledge. For the evidence to be admissible, the defendant must offer proof
(1) that the prior act clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a material issue; (4) that the evidence is necessary to the defendant's case; (5) that the probative value of the evidence outweighs its prejudicial effect.
Townsend, 366 Ark. at 158, 233 S.W.3d at 685.
[7]
In the present case, Appellant is attempting to introduce prior sexual conduct to prove that there was an alternate source for the victims's injury, rather than an alternate source for her sexual knowledge. The State asserts that the rationale behind the factors set out in...
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