Short v. State

• Decision Date: 27 June 2002
• Docket Number: No. CR 01-1269.,CR 01-1269.
• Citation: 349 Ark. 492,79 S.W.3d 313
• Parties: Gregory SHORT v. STATE of Arkansas.
• Court: Arkansas Supreme Court

79 S.W.3d 313

349 Ark. 492

Gregory SHORT v. STATE of Arkansas.

No. CR 01-1269.

Supreme Court of Arkansas.

June 27, 2002.

James Dunham, Russellville, for appellant.

Mark Pryor, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellee.

ANNABELLE CLINTON IMBER, Justice.

Appellant Gregory Short was convicted of first-degree sexual abuse in violation of Ark.Code Ann. § 5-14-108(a)(4) (Repl. 1997) (repealed). He raises two points on appeal: (1) The trial court erred in ruling that first-degree sexual abuse is a strict-liability crime; and (2) the trial court erred by excluding proffered testimony regarding the victim's sexual conduct. We disagree and affirm.

This appeal raises the issue of whether the State has the burden of proving a culpable mental state in connection with a charge of first-degree sexual abuse involving a victim under the age of fourteen. As the sufficiency of the evidence to support the conviction has not been challenged, we recite the facts only as they relate to the issues on appeal. Mr. Short was originally charged with raping a child less than fourteen years of age in violation of Ark.Code Ann. § 5-14-103(a)(4) (Repl.1997) (superseded by Ark.Code Ann. § 5-14-103(a)(1)(C)(i) (Supp.2001)). After the State agreed to reduce the charge to first-degree sexual abuse in violation of Ark. Code Ann. § 5-14-108(a)(4), Mr. Short waived his right to a trial by jury.

At the outset and before the State amended its original charge, Mr. Short moved, in limine, to allow testimony about the victim's alleged sexual conduct on the day of the offense in order to prove that he was reasonable in concluding that the youthful victim, A.L., was at least fourteen years old. Mr. Short was twenty-six years old on August 7, 2000, when he and a friend, Melvin Willfond, gave A.L. (age thirteen) and her friend, R.H. (age fifteen), a ride to register for the next school year. Mr. Short stated that he thought A.L. was fourteen or fifteen years old, and he denied having any sexual contact with her. A.L. testified that she was thirteen years old in August 2000 and that she told Mr. Short she wanted to have sex with him and, in fact, did have sexual contact with him. The trial court denied Mr. Short's motion in limine and excluded the proffered testimony about A.L.'s sexual conduct.

At trial, after the close of the State's case-in-chief, Mr. Short moved for a directed verdict alleging that the State failed to meet its burden of proof. Specifically, he argued that the State failed to prove the element of mental culpability as required by Ark.Code Ann. § 5-2-203 (Repl.1997). The trial court ruled that first-degree sexual abuse is a strict-liability offense and denied his directed-verdict motion. At the close of all the evidence, Mr. Short renewed his motion for directed verdict, which was again denied. The trial court found Mr. Short guilty of first-degree sexual abuse and sentenced him to 60 months probation conditioned upon serving 120 days in the Pope County Detention Center. Following the entry of judgment, Mr. Short filed a timely notice of appeal.

I. First-Degree Sexual Abuse

The first point on appeal involves an issue of statutory interpretation. We construe criminal statutes strictly, resolving any doubts in favor of the defendant. Hagar v. State, 341 Ark. 633 19 S.W.3d 16 (2000). We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Id. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Id.

Mr. Short was convicted of sexual abuse in the first degree in violation of section 5-14-108(a)(4) of the Arkansas Criminal Code. At the time the offense was committed, the statute provided that "[a] person commits sexual abuse in the first degree if ... [b]eing eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old." Ark.Code Ann. § 5-14-108(a)(4) (Repl.1997) (repealed).¹ As to offenses where the criminality of the conduct depends on the victim being less than fourteen, the chapter of the Arkansas Criminal Code that defines sexual offenses also provides as follows: "When 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." Ark.Code Ann. § 5-14-102(b) (Repl.1997).

While this court has not specifically addressed the issue of whether first-degree sexual abuse in violation of section 5-14-108(a)(4) is a strict-liability offense, we have considered the mens rea requirement for the offense of statutory rape; that is, rape committed by engaging in sexual intercourse or deviate sexual activity with a person less than fourteen years of age. Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994) (construing Ark.Code Ann. § 5-14-103(a)(3) (Supp.1993), later recodified at Ark.Code Ann. § 5-14-103(a)(4) (Repl. 1997) (superseded)). The language used in the statutory rape provision and in section 5-14-108(a)(4) is similar, and both offenses are subject to the defense restriction set forth in section 5-14-102(b).² Once again, we construe statutes relating to the same subject together and in harmony if possible. Hagar v. State, supra. The 1988 Supplemental Commentary to Ark.Code Ann. § 5-14-103 (Repl.1995) notes that the rape statute "now imposes strict liability where the victim is less than 14 years of age." A strict-liability offense is "[a] crime that does not require a mens rea element...." Black's Law Dictionary 378 (7th ed.1999).

In Clay v. State, where the issue was whether joinder was proper for multiple counts of rape by force and statutory rape, we analyzed the different mens rea requirements for these crimes and concluded that the offense of statutory rape is a strict-liability crime:

In two of the cases the charge was rape, and the proof in those cases showed that the appellant had sexual intercourse by force. The intent necessary for conviction in these cases was that the appellant "purposely" forced the victims to have sex with him. Ark. Code Ann. §§ 5-2-202 & 5-14-103 (Repl.1993). However, three of the charges were quite different as they involved rape by deviate sexual activity with persons less than fourteen years of age. These are "strict liability" crimes. See Ark.Code Ann. Commentaries § 5-14-103(a)(3) (1989). In these cases the State does not have to prove that the accused "purposely" had sex with a person under fourteen years of age. A person who has sexual intercourse or deviate sexual activity with one less than fourteen years of age is guilty of the crime, regardless of how old he or she thought the victim was, and regardless of whether there was consent. There are affirmative defenses, but it is up to the defendant to prove them. The point is that because the definitions of the different crimes require different culpable mental states, joinder in the case at bar did not show an overall proof of intent.

Clay v. State, 318 Ark. at 558-59, 886 S.W.2d at 613. Two more recent cases, while not directly addressing the issue of strict liability, have reaffirmed that knowledge of the victim's age is not an element of statutory rape. In connection with our statutory interpretation of the knowledge requirement for the offense of second-degree battery, this court explained: "The language of the statute is clear and unmistakable and differs significantly from statutes such as the rape statute which merely provide that the victim be a certain age and not that the defendant know what that age is." Sansevero v. State, 345 Ark. 307, 312, 45 S.W.3d 840, 843 (2001). Likewise, another recent decision involving a rape charge under section 5-14-103(a)(4) reiterated that:

[i]t 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.... 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).

Ridling v. State, 348 Ark. 213, 221, 72 S.W.3d 466, 471 (2002). In Miller v. State, we explained the underlying policy: "Our public policy, as fixed by the General Assembly, is manifest that victims younger than age 14 are beneath the age of consent and cannot be willing accomplices to sexual intercourse." 318 Ark. 673, 677, 887 S.W.2d 280, 282 (1994).

Notwithstanding the precedent established by our decisions in Clay, Sansevero, and Ridling, Mr. Short contends that first-degree sexual abuse is not a strict-liability offense because sections 5-2-203 and 5-2-204 require a culpable mental state-purposely, knowingly, or recklessly-if the statute does not prescribe one. "Except as provided in § 5-2-204(2), if the statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly." Ark.Code Ann. § 5-2-203(b) (Repl.1997). Section 5-2-204 provides in pertinent part:

(b) A person does not commit an offense unless he acts with a culpable mental state with respect to each element of the offense that requires a culpable mental state.

(c) However, a culpable mental state is not required if:

. . .

(2) An offense defined by a statute not a part of this code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any...