State v. Barber

• Decision Date: 13 January 1989
• Docket Number: No. 62147,62147
• Citation: 13 Kan.App.2d 224,766 P.2d 1288
• Parties: STATE of Kansas, Appellee, v. Terry BARBER, Appellant.
• Court: Kansas Court of Appeals

Page 1288

766 P.2d 1288

13 Kan.App.2d 224

STATE of Kansas, Appellee, v. Terry BARBER, Appellant.

No. 62147.

Court of Appeals of Kansas.

Jan. 13, 1989.

Review Denied March 22, 1989.

Syllabus by the Court

1. In sex offense cases, evidence of prior false accusations by the complaining witness is not evidence of prior sexual conduct as contemplated by the "rape shield law," K.S.A.1987 Supp. 21-3525.

2. Under certain circumstances, the evidentiary restraints of K.S.A. 60-422(d) must yield to a defendant's constitutional right of cross-examination.

3. Evidence of a complaining witness's prior accusations is admissible only after the trial court makes a threshold determination that a reasonable probability of falsity exists.

Shannon S. Crane and Reid Nelson, Asst. Appellate Defenders, and Benjamin C. Wood, Chief Appellate Defender, for appellant.

Mona Furst, Asst. Dist. Atty., Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before REES, P.J., ELLIOTT, J., and PAUL D. HANDY, District Judge, Assigned.

ELLIOTT, Judge:

Terry Barber directly appeals his conviction of indecent liberties with a child. K.S.A.1987 Supp. 21-3503. The sole issue is whether the trial court erred in granting the State's motion in limine excluding evidence regarding the victim's prior allegedly false accusations of sexual abuse.

Finding no error, we affirm.

Amy, the victim, is an 11-year-old girl, who, at pertinent times, lived in a one-bedroom apartment with her divorced mother, Rita, and her 14-year-old brother. Defendant was Rita's boyfriend and had lived with Rita and the children for a number of years.

After Amy claimed that defendant had forced her to have sex with him, Rita took Amy to the family doctor. Amy told the doctor that defendant had placed his penis inside her vagina. Because this exam took place about a month after the alleged incident, the medical findings were inconclusive: they were about what the doctor would have expected to find if Amy had had sexual intercourse a month previously and also what he would have expected to find if she had not.

Amy also told Detective Horn that defendant had tried to stick his penis in her vagina. At trial, Amy testified about the incident and also admitted she did not like defendant because he occasionally disciplined her; Amy wished he would move out.

Barber denied having had intercourse with Amy and sought to cross-examine Amy about prior accusations she had made on the subject. The parties seem to have agreed that there were three prior accusations. One was made against another person who was facing trial on a criminal charge for the incident at the time of Barber's trial. The other accusations, made in 1983, involved defendant and his brother. The trial court refused to permit defendant to inquire about the prior accusations.

Defendant was convicted and sentenced to 5 to 20 years' imprisonment; hence, this appeal.

The State justifies the trial court's ruling that reference to prior accusations should be precluded both because it falls under the "rape shield statute," K.S.A.1987 Supp. 21-3525, and because it is irrelevant. This argument that prior accusations are excludable both under the rape shield statute and also as irrelevant is somewhat overbroad, since the rape shield statute basically incorporates the existing rules of evidence which the judge must use to decide whether the proffered evidence is relevant. "[T]he statute makes relevancy the touchstone of admissibility." In re Nichols, 2 Kan.App.2d 431, 433, 580 P.2d 1370, rev. denied 225 Kan. 844 (1978).

Defendant contends the evidence of prior accusations is not evidence of prior sexual conduct and was not offered to prove consent, but was merely offered to attack the complaining witness's credibility. Therefore, defendant contends, the rape shield statute is inapplicable. We agree the rape shield statute does not apply, but that does not end the inquiry.

In sex offense cases, credibility is obviously a central issue. Here, defendant argues he should have been permitted to elicit testimony of prior false accusations in order to impeach the complaining witness's credibility in making the current charges against him.

We are persuaded to join the majority of jurisdictions which have considered the question and hold the rape shield statute simply does not apply. The testimony sought to be introduced is not of prior sexual conduct. As a result, evidence of prior false accusations of sexual abuse may be admissible to impeach the credibility of the complaining witness. See Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263 (1988), and cases discussed therein.

We hasten to add, however, that a complaining witness's prior accusations are not always admissible. Such prior accusations are admissible only if a reasonable probability of falsity exists. The trial court must make the threshold determination of whether a reasonable probability of falsity exists. 235 Va. at 325, 368 S.E.2d 263.

But once we accept defendant's characterization of the evidence as going to the complaining witness's credibility and not her prior sexual conduct, a different problem is presented. Under K.S.A. 60-422(d), evidence of specific conduct of a witness tending to prove a trait of character shall be inadmissible. Our Supreme Court has interpreted the statute to mean that, generally, evidence challenging...