State v. Babbs

• Decision Date: 09 July 1998
• Docket Number: No. CR,CR
• Citation: 971 S.W.2d 774,334 Ark. 105
• Parties: STATE of Arkansas, Appellant, v. David W. BABBS and Russell C. Conger, Appellees. 97-1101.
• Court: Arkansas Supreme Court

Page 774

971 S.W.2d 774

334 Ark. 105

STATE of Arkansas, Appellant, v. David W. BABBS and Russell C. Conger, Appellees.

No. CR 97-1101.

Supreme Court of Arkansas.

July 9, 1998.

Winston Bryant, Attorney General, Sandy Moll, Assistant Attorney General, Little Rock, for Appellant.

Joe Kelly Hardin, Bobby D. McCallister, Ronald D. Jones, Benton, for Appellee.

GLAZE, Justice.

Appellees David W. Babbs and Russell Conger are charged with the rape of prosecutrix Jocelyn Brooke Shipp. At a pretrial, in-camera hearing, the appellants proffered testimony indicating that Shipp had consensual sexual intercourse with Conger after the alleged rape, that such subsequent sexual activity is relevant regarding the issue of consent and Shipp's credibility, and should be admissible at trial. The trial court ruled in the appellees' favor, and the State brings this interlocutory appeal pursuant to Ark.Code Ann. § 16-42-101(c)(3)(B) (Supp.1997) of the Rape-Shield Statute, arguing that the trial court's ruling erroneously prejudices its case and should be overturned.

As we have pointed out many times, the purpose of the Rape-Shield Statute 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. Graydon v. State, 329 Ark. 596, 953 S.W.2d 45 (1997); State v. Sheard, 315 Ark. 710, 870 S.W.2d 212 (1994). We have also repeatedly held that the trial court is vested with a great deal of discretion in ruling whether the victim's prior sexual conduct is relevant, and we will not overturn the trial court's decision unless it constituted clear error or a manifest abuse of discretion. Graydon, 329 Ark. at 601, 953 S.W.2d at 48. In the instant case, no such error or abuse of discretion is found.

Before discussing the propriety of the trial court's ruling, we initially relate the evidence the State and appellees intend to present at trial. We consider the State's case first. According to the State, on February 2, 1997, Babbs called Shipp and asked her to come to his house to play basketball. Shipp agreed, and upon arriving at the house, Babbs, Conger, and Shipp played about forty-five minutes before quitting and going into Babbs's house. Babbs's mother was in the house. Babbs, Conger, and Shipp eventually ended up in Babbs's bedroom where Shipp claims Babbs held her down and covered her mouth while Conger had forcible sexual intercourse with her. Shipp said the alleged rape took about two-to-three minutes before she was able to free herself from the two boys, pull on her clothes, and flee. Shipp said that she saw Babbs's mother in the kitchen as she left the house. Shipp further claims that, on February 17, 1997, she told her boyfriend, William Hope, about the February 2nd incident, who then called Babbs about the matter. Hope's story is that Babbs essentially admitted that Conger had raped Shipp, but that he had only held her down. On February 18, 1997, Ms. Shipp reported the alleged rape to law enforcement officers, and these rape charges were filed against Babbs and Conger on May 15, 1997. ¹

At the pretrial hearing, Babbs and Conger proffered a very different version of events to that of the State's. They offered that Amanda Drennan (and two other friends of Shipp) would testify that, shortly after the alleged rape incident, Shipp admitted that she had sex with Babbs and Conger in Babbs's bedroom on the day in question, that she enjoyed it, and that she was going to "get" Conger again. Appellees further proffered Conger's mother's testimony that, within the sixteen-day period between the alleged rape and when Shipp reported it, Shipp came alone to the Conger house; Conger offered that, during the visit, he and Shipp had consensual sex.

In its argument on appeal, the State relies largely on our decision in State v. Sheard, supra. There, ten defendants were charged with the group rape of a fifteen-year-old female. Some of the defendants offered testimony that the victim's boyfriend, Sheard, one of the defendants, had a prior ongoing consensual sexual relationship with the victim, and on one occasion, performed sex while other boys were in the home. However, there was no testimony that the prosecutrix in Sheard ever agreed to have sex with a person while others joined in, and what sexual acts that were related occurred between the prosecutrix and one other person behind closed doors. In holding the prosecutrix's prior sexual conduct inadmissible, the Sheard court relied on the established rule that prior acts of sexual conduct are not within themselves evidence of consent in a subsequent sexual act, and that there must be some additional evidence connecting such prior acts to the alleged consent in the present case before the prior acts become relevant. Sheard, 315 Ark. at 713, 870 S.W.2d at 214.

In sum, this court in Sheard held that, whether the prosecutrix had a prior and normal, individual consensual relationship with Sheard, such consensual sex in no way indicated she would agree to being restrained and subjected to sexual intercourse by multiple parties. Applying this rationale to the facts at hand, the State maintains that Shipp's subsequent consensual individual sexual relationship she is alleged to have had with Conger bore no relevance as to whether she may have consented to the sexual conduct she had with both Conger and Babbs. Although the State recognizes that, unlike the situation in Sheard, here the consensual intercourse with Conger took place after, rather than before, the alleged rape, it submits such distinction bears no legal significance because the "prior sexual conduct" that may be precluded under the Rape-Shield Statute includes all sexual behavior of the...