Mouton v. State
| Decision Date | 24 May 2018 |
| Docket Number | No. CR–17–677,CR–17–677 |
| Citation | 547 S.W.3d 76 |
| Parties | Carl MOUTON, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Supreme Court |
Jeff Rosenzweig, for appellant.
Leslie Rutledge, Att'y Gen., by: Amanda Jegley, Ass't Att'y Gen., for appellee.
Appellant Carl Mouton, was convicted in the Pulaski County Circuit Court of two counts of sexual assault in the second degree. On appeal, Mouton argues that he should have been permitted to present evidence of the sexual nature of the relationship between the victim, KV, and another minor, EP. Mouton argues that the exclusion of this evidence did not comport with Arkansas Rule of Evidence 411, and that the exclusion violated his constitutional right to present a defense. The State has also appealed, requesting that this court declare error regarding the trial court's refusal to allow Brittany Perry from testifying against Mr. Mouton as a 404(b) witness.
Carl Mouton was the band director for Oak Grove High School and then continued to serve as band director after Oak Grove High School became Maumelle High School in 2011. The high school's band program saw great success during Mouton's tenure, which developed an environment where both parents and students alike took pride in the school band and participated in its activities through a booster program.
KV attended Maumelle High School and played in the band from 10th through 12th grade. She graduated early at sixteen years old and was attending classes as a freshman in college at the time of the trial below. KV, like many other students, had a very close and friendly relationship with Mouton. KV and Mouton would regularly hug each other at school and band functions. Beginning in November 2014, KV began a dating relationship with another female student in the band, EP. At some point, KV's and EP's parents found out about their relationship, and they attempted to put an end to it by having KV, EP, and certain school officials sign an agreement that KV and EP would not sit together or hang out together at school unsupervised; however, Mouton did not force the girls to abide by the agreement when they were under his supervision. By the date of the pretrial hearing, May 8, 2017, KV and EP were no longer in a dating relationship.
During this time, EP was living in Little Rock, but she was able to attend Maumelle High School because her mother, Diedre Pippenger, had agreed with another individual, Leonard McKinney, who resided in Maumelle and with whom Pippenger reportedly had a close relationship, to represent to the public that EP was living at McKinney's residence. McKinney was very involved in the band's booster program and has a child of his own who had been in the band.
According to KV's pretrial testimony, during finals week of her sophomore year, KV and Mouton gave each other an end-of-the-year goodbye hug, and Mouton grabbed KV's bottom during their embrace. KV testified that Mouton continued to periodically grab her bottom when the two would hug throughout the remainder of her time at Maumelle High School. She also testified that in May 2015, Mouton pulled her breast out of her shirt and placed his mouth over her breast for approximately 15 seconds. KV reportedly told EP about the incident via text message two weeks later in July 2015 and made EP promise to keep it a secret. No evidence was presented regarding any other communicating or reporting of the incident at the time.
Over the course of the next year, Mouton's relationship with McKinney deteriorated due to disagreements about the management of the band. Mouton eventually "fired" (or was in the process of firing) McKinney from the booster club during the week of May 5–11, 2016. Mouton's and McKinney's disagreements apparently manifested in a "blowup" at a meeting at the school on May 5, 2016, for which both EP and McKinney were present and from which McKinney drove EP home. EP testified that, the next evening, she told her mother about the incident KV had described approximately a year prior. Pippenger herself recalled EP disclosing what KV had said about Mouton the same night McKinney drove her home from the meeting.
Pippenger testified that, for a day or two, she did not do anything in response to EP's disclosure, and she then called McKinney looking for advice. McKinney gave Pippenger the telephone number for the child-abuse "Hot Line," which Pippenger reportedly called a couple of days later. The ensuing investigation led to Mouton being charged with, and later convicted of, two counts of second-degree sexual assault against KV.
The issues on appeal stem from the trial court's decisions with respect to two pretrial motions. The first was Mouton's "rape-shield" motion, which sought to introduce evidence of the sexual nature of KV's relationship with EP. The trial court denied this motion, ruling that Mouton could present evidence that KV and EP were close friends, but not evidence of their previous sexual relationship. Mouton appeals this decision, arguing that the evidence should not have been excluded under Rule 411, and that its exclusion violates his constitutional right to present a defense. The second pretrial motion was Mouton's motion to exclude Rule 404(b) testimony from one of the State witnesses, Brittany Perry. Perry would have testified that she and Mouton had engaged in physical interactions while Perry was a high school student, some eighteen years prior, that were similar to those alleged to have occurred between Mouton and KV. The trial court granted this motion, ruling that Perry would not be permitted to testify at trial. The State appeals this decision, seeking either (1) if this court reverses the trial court's decision pursuant to Mouton's arguments, a ruling on this issue to bring back to the trial court on remand, or (2) if this court affirms the trial court's decision with respect to Mouton's arguments, a "declaration of error" for the purported benefit of the bench and the bar.
We begin with Mouton's arguments, both of which deal with Rule 411, Arkansas's rape-shield rule. Some of our prior cases have addressed these arguments in tandem, so to obviate the need for multiple discussions of the same cases, we will first review all the applicable legal authorities and then apply the relevant provisions of those legal authorities to Mouton's arguments, one at a time. Mouton's first argument is that evidence of the sexual nature of KV and EP's relationship should not have been excluded under the procedure and analysis set forth in Rule 411(c). Rule 411 provides in relevant part as follows:
The general purpose of the rape-shield rule "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." McCoy v. State , 2010 Ark. 373, at 9, 370 S.W.3d 241, 247. Subsection (b) of Rule 411 identifies several types of evidence that will be inadmissible unless the admissibility of the evidence is established through the procedure and analysis set forth in subsection (c), by showing that the evidence is relevant and that its probative value outweighs its prejudicial or inflammatory effect.
Interpreting these provisions in Marion v. State , this court ruled that a defendant can present to the jury evidence of a victim's prior sexual conduct that would otherwise be prohibited by the rape-shield rule if the defendant can establish a legitimate "evidentiary hypothesis underpinned by a sufficient statement of facts." 267 Ark. 345,...
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Price v. State, CR-20-460
...charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant's guilt." Mouton v. State, 2018 Ark. 187, at 6, 547 S.W.3d 76, 80 (quoting McCoy v. State, 2010 Ark. 373, at 9, 370 S.W.3d 241, 247). However, the circuit court provided three grounds fo......