State v. Townsend

• Decision Date: 13 April 2006
• Docket Number: No. CR 05-1263.,CR 05-1263.
• Citation: 233 S.W.3d 680
• Parties: STATE of Arkansas, Appellant, v. Denver TOWNSEND, Appellee.
• Court: Arkansas Supreme Court

233 S.W.3d 680

STATE of Arkansas, Appellant, v. Denver TOWNSEND, Appellee.

No. CR 05-1263.

Supreme Court of Arkansas.

April 13, 2006.

Mike Beebe, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, AR, for appellant.

Richard G. Miller, Deputy Public Defender, Bentonville, AR, for appellee.

BETTY C. DICKEY, Justice.

The State brings this interlocutory appeal under the rape-shield statute, Ark. Code Ann. § 16-42-101(c)(3)(b) (Supp. 2003), from a pretrial order allowing the defendant-appellee to introduce evidence that the victim, a six-year-old minor, had been sexually assaulted approximately two years prior to the incidents in the present case. Denver Townsend, a sixty-three-year-old male, was charged with the rape of his six-year-old former step-granddaughter, M.A.D. The rape charge was pursuant to Ark.Code Ann. § 5-14-103 (Repl.2006), which prohibits deviant sexual activity or intercourse with another person who is under the age of fourteen. Jurisdiction in this case is pursuant to Ark. Sup.Ct. R. 1-2(a)(8). We reverse and remand the pretrial order.

On June 6, 2004, M.A.D. told her eighteen-year-old cousin that she had been sexually molested earlier that spring by Denver Townsend. The police were contacted, and on June 7, a police officer interviewed M.A.D. about the allegations. During the initial interview, M.A.D. told the officer that Townsend touched her privates twice, using only his hands, and that he "messed with me," "played inside my pants," and touched her where she went to the bathroom. On June 8, 2004, M.A.D. was interviewed by a forensic counselor, with police officers present. During that interview, M.A.D. reported that Townsend, whom she referred to as "Papa," had stuck his "pee-pee" in her "pee-pee" while she was alone in her father's house with him. She stated that Townsend often babysat her while her father was at work. M.A.D. reported that on the two occasions when Townsend inserted his penis into her vagina, both occurring on the couch in her father's living room, Townsend had asked her to "scoot closer" to him. He then pulled his pants down, and partially disrobed her. M.A.D. further reported that Townsend's hands were at her sides, and that she was sitting on a pillow, and sitting like a "v." M.A.D. described Townsend's penis as appearing "big and it had a circle on top," and further, that it was "hairy" and that it felt "hard." M.A.D. referred to the penis as a "dick" or "pee-pee" throughout the interview.

On November 4, 2004, Townsend filed a motion to admit evidence of the victim's prior sexual conduct, that approximately two years prior to the time frame of the allegations in the present case, M.A.D. had been sexually assaulted by a family friend, Billy Kingrey. Kingrey had pled guilty to the crime and was sentenced to prison. The detective who interviewed M.A.D. about the Kingrey incident reported that M.A.D., then four years old, could provide few details about the incident. At that interview, M.A.D. indicated that Kingrey had touched her privates, and stated that he had touched her with his "thingy." When asked, M.A.D. could not describe the "thingy," and in the interview she communicated chiefly by pointing. M.A.D. stated that Kingrey's action "hurt," and made no allegation that Kingrey penetrated any of her orifices. M.A.D. also indicated that she, Kingrey, or both may have been clothed during the incident. Kingrey was charged with the rape of M.A.D. and another little girl, and although he admitted to digital vaginal penetration of the other little girl, he would admit to no wrongdoing with regard to M.A.D. He eventually pled guilty to sexual assault.

The trial court, after a January 10, 2005 hearing on the motion, ruled that the appellee could ask M.A.D. for confirmation of the following facts:

1) Before Denver was living with her somebody hurt her.

2) She was living with her grandmother Janice.

3) She was four years old.

4) The person was named Billy Kingrey.

5) He touched her in a private place.

6) She told police about Billy.

7) She told police Billy put his pee-pee inside her pee-pee.

8) Billy went to jail because of what he did.

The State appeals that ruling, raising one point on appeal: The trial court clearly erred by granting the appellee's motion to admit evidence that the victim, M.A.D., was raped by another perpetrator when she was four years old.

Rape-Shield Issue

Under the rape-shield law, section 16-42-101, evidence of a victim's prior sexual conduct is inadmissible by the defendant to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. Ark.Code Ann. § 16-42-101(b). An exception to this rule exists when the trial court, at an in camera hearing, makes a written determination that such evidence is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature. Ark.Code Ann. § 16-42-101(c)(2)(c). The statute's purpose is to shield victims of rape or sexual abuse from the humiliation of having their sexual 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). Accordingly, the trial court is vested with a great deal of discretion in determining whether the evidence is relevant, and we will not overturn the trial court's decision unless it constitutes a clear error or a manifest abuse of discretion. Id.

Here, Townsend seeks to introduce evidence that M.A.D. was sexually assaulted prior to the alleged incidents in the present case. The statute under which Townsend is charged, prohibiting sexual intercourse or deviant sexual activity with another person under the age of fourteen, mandates that a person who engages in the proscribed activity is guilty of the crime, regardless of whether there was consent. Clay v. State, 318 Ark. 550, 886 S.W.2d 608(1994). This court has stated that when consent is not an issue, whether the victim had sexual relations with a third person is entirely collateral, and therefore is not relevant. Evans v. State, 317 Ark. 532, 878 S.W.2d 750 (1994).

In cases involving the rape of a minor, this court has uniformly and consistently excluded evidence of the minor's prior sexual activity, because in those cases the only two issues to be determined are the fact of the occurrence of the prohibited activity and the age of the minor. See, e.g., Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004); Turner v. State, 355 Ark. 541, 141 S.W.3d 352 (2004); M.M. v. State, 350 Ark. 328, 88 S.W.3d 406 (2002); Ridling v. State, 348 Ark. 213, 72 S.W.3d 466 (2002). Anything not pertaining to one of those two issues is not relevant in cases involving the rape of a minor.

In Ridling, supra, we said, "It is difficult to understand what relevance [the victim's] other sexual encounters have to do with whether Ridling was having sex with her before her fourteenth birthday. Unfortunately, the fact that she was having sex with one older man does not prevent her from having sex with another older man at the same time." Ridling, 348 Ark. at 226, 72 S.W.3d at 473. In M.M., supra, the appellant, also a minor, sought to introduce evidence that the nine-year-old victim had sexual experiences prior to her rape by him. There, we stated, "The testimony that M.M. sought to introduce was evidence of the victim's sexual history, but because the victim was under the age of fourteen, the child's sexual past was completely irrelevant to the question of whether M.M. engaged in sexual activity with J.H. [the victim]." M.M., 350 Ark. at 333, 88 S.W.3d at 409-10. The defendant in Standridge, supra, sought to admit evidence that the minor victim in his case had made similar accusations of sexual abuse by her then-stepfather when she was four years old. In that case we said, "However, at the rape shield hearing, the victim here testified that, although she did not remember much of the circumstances surrounding the allegations against Webb [the stepfather], because she was only four years old at the time, she remembered what he did to her, and she stated that the allegations against Webb were true. This testimony falls squarely within the ambit of 16-42-101(b), which excludes `evidence of a victim's prior allegations of sexual conduct with . . . any other person, which allegations the victim asserts to be true[.]'" Standridge, 357 Ark. at 115, 161 S.W.3d at 819.

Townsend advances three arguments to support the proposition that M.A.D.'s previous sexual encounter with Kingrey is relevant to his case and that its probative value outweighs its inflammatory or prejudicial nature. The first is that it is relevant because of the close proximity in time between the prior abuse and the present allegations. We first observe that as much as two years may have elapsed between the two incidents, and two years is a significant span in the life of a six year old. Also, if the appellee is asserting that M.A.D. is confusing the alleged present incident with her prior sexual assault by Kingrey, such a conclusion is rendered unlikely by a comparison of her descriptions of the two incidents. Her description of the Kingrey incident is vague, indefinite, and lacking in detail. By contrast, the present allegations are graphic descriptions, notable for their clarity, definition, and degree of detail. For example, in the Kingrey incident she could not describe a penis and referred to it as a "thingy," while in the alleged present incident she gave a very detailed description, and used the terms "dick" and "pee-pee."

Townsend also asserts that M.A.D.'s precocious knowledge of sexual matters may be imputed by a jury to her alleged encounter with him, when it actually may be attributable to her prior encounter with Kingrey. Based on the evidence before us in this particular case, that argument rests on a factually-flawed premise, because it is...