Ridling v. State, CR 01-934.

• Decision Date: 18 April 2002
• Docket Number: No. CR 01-934.,CR 01-934.
• Citation: 72 S.W.3d 466,348 Ark. 213
• Parties: Danny RIDLING v. STATE of Arkansas.
• Court: Arkansas Supreme Court

72 S.W.3d 466

348 Ark. 213

Danny RIDLING v. STATE of Arkansas.

No. CR 01-934.

Supreme Court of Arkansas.

April 18, 2002.

John Wesley Hall, Jr., Little Rock, for appellant.

Mark Pryor, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, for appellee.

TOM GLAZE, Justice.

Appellant Danny J. Ridling was charged under Ark.Code Ann. § 5-14-103(a) (Repl. 1997) with the rape of a girl (Kimberly) who was less than fourteen years old. He was originally charged with carnal abuse, but the State upgraded the offense when the girl informed the prosecutor that the incidents of sexual intercourse commenced earlier than she had originally revealed. It is undisputed that before Ridling was charged, Kimberly was pregnant and had given birth on March 19, 1997, to a child that Ridling later acknowledged to be his. The child was born approximately nine months after Kimberly's fourteenth birthday. Kimberly stopped seeing Ridling just after her fourteenth birthday. At a jury trial, Ridling was convicted of the rape charge and sentenced to 420 months in prison.

Ridling raises three points for reversal, the first of which is his argument that the trial court erred in excluding allegedly false statements, made by Kimberly, under the rape-shield statute, Ark.Code Ann. § 16-42-101 (Repl.1999). Subsection (b) of 16-42-101 provides in pertinent part as follows:

In any criminal prosecution under § 5-14-103 through § 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, 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 victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. (Emphasis added.)

Notwithstanding the prohibition in subsection (b) above, subsection (c) of § 16-42-101 provides that evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim's 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 prohibited by subsection (b) of this section 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[.] (Emphasis added.)

* * *

In the instant case, Ridling requested an in camera hearing where he proffered nine statements attributed to Kimberly. The trial judge found three of these statements to be relevant, and at trial, he allowed Ridling to cross examine Kimberly regarding them.¹ These statements, or "areas of inquiry" as characterized by Ridling, were:

(1) She told the police that she was fourteen years old when she started having sex with the defendant.

(2) She told [deputy prosecuting attorney] John Hout that she was twelve years old when she first had sex with the defendant.

(3) She testified in Sixth Division Chancery that she was eleven years old when she first had sex with the defendant.

The six remaining statements attributed to Kimberly that the trial judge ruled inadmissible are the following:

(4) She told Michael Lofton, Sr., she was eighteen years old.

(5) She told Billy Owens (Ridling's roommate) that she was eighteen years old.

(6) She told Daniel Ridling (Ridling's son) that she was playing college basketball.

(7) She told Ridling that she was eighteen years old.

(8) She told Chris Ridling (Ridling's other son) that she was eighteen years old and getting ready to play college basketball.

(9) She told the hospital that the father of her child was Michael Lofton, Jr.

At the pretrial hearing, the prosecuting attorney objected to statements 4 through 8 because what age Ridling believed Kimberly to be was completely irrelevant to the offense. The prosecutor cited Ark. Code Ann. § 5-14-102(b) (Repl.1997), which specifically provides that "[w]hen the criminality of conduct depends on a child being below the age of fourteen (14) years, it is no defense that the actor did not know the age of the child, or reasonably believed the child to be fourteen (14) years of age or older." Defense counsel conceded that Ridling's belief as to Kimberly's age was not relevant to the rape charge, but argued the six excluded statements went "towards this young woman's credibility and her propensity for (lack of) truthfulness." In support of these arguments, counsel, in part, relies on the case of West v. State, 290 Ark. 329, 719 S.W.2d 684 (1986), reh'g denied 290 Ark. 340-A, 722 S.W.2d 284 (1987). We believe the trial court ruled correctly in excluding the six statements proffered by Ridling.

On appeal, Ridling first relies on the case of Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999), where this court, citing Ark. R. Evid. 402, stated the general rule that all relevant evidence is admissible. The court further set out the definition of relevant evidence as "any evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Ark. R. Evid. 401. The court also stated a witness's credibility is always an issue, subject to attack by any party, and the scope of cross-examination extends to matters of credibility. Ark. R. Evid. 611. The Fowler court cited Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), for the following proposition:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.... The cross-examiner is not only permitted to delve into the [witness's] story to test the [witness's] perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.

In Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990), this court relied on Delaware v. Fensterer, 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985), in stating the following:

The sixth amendment to the United States Constitution and Art. 2, § 10 of the Arkansas Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. The right of confrontation provides two types of protection for a criminal defendant: the right physically to face those who testify against him and the opportunity to conduct effective cross-examination.

However, the Bowden court went on to say that the right to cross-examine the prosecution's witnesses is not unlimited, and that trial judges have wide latitude insofar as the Confrontation Clause is concerned "to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of issues, the witness's safety, or interrogation that is repetitive or only marginally relevant." The court added that the Confrontation Clause "guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id.

Keeping the above-established principles in mind, we first note that we agree with the trial court, and the State on appeal, that the core issue to be decided in this part of Ridling's argument is whether Ridling had sexual intercourse with Kimberly when she was under fourteen years of age. It is also clear that it was no defense that Ridling did not know Kimberly's age, or that he reasonably believed Kimberly to be fourteen years of age or older. See § 5-14-102(b). Turning to the six statements Ridling asked to pursue on cross-examination of Kimberly, statements 4 through 8 had no relevance as to whether Ridling had sex with Kimberly when she was under fourteen years of age. Certainly, even if he had been apprised that she told the other men that she was over the age of fourteen, such knowledge would be of no benefit to his defense in light of § 5-14-102(b). We now turn to the State's case against Ridling before the trial court, so we can evaluate the probative and prejudicial value of that evidence and Ridling's proffered statements when considering the trial court's ruling in this case.

Kimberly was the only witness to testify at trial. Kimberly testified that she first met Ridling at Baring Cross Park in North Little Rock, as she was watching her brother and some friends playing basketball. Ridling approached Kimberly and her friend and asked if they would like to come to his house to see some paintings and drawings; the girls declined to go. A few weeks later, Kimberly was roller skating to the store to buy candy when Ridling again...