George Burns v. State of Arkansas, 599 S.W.3d 332

George Burns (defendant) was tried by a Little River County jury and convicted of two counts of fourth‑degree sexual assault based on victim I.M.’s testimony that abuse began when she was 13; he received an aggregate 12‑year sentence.
Burns sought to admit evidence of I.M.’s other alleged sexual conduct and diary entries; the circuit court excluded several items under Arkansas’s rape‑shield statute (A.C.A. §16‑42‑101).
Excluded items that the court found squarely barred included: I.M.’s claim of performing oral sex at school, allegations of intercourse with two men in Bowie County, and an allegation against a shelter resident (items the victim either said were true or denied making).
Two diary entries (an entry naming C.J. Washington as having taken her virginity and an entry saying she wouldn’t be believed because she “lie[s] too much”) were not squarely within the statute but were excluded; Burns nonetheless cross‑examined extensively and presented witnesses to attack I.M.’s credibility.
Burns did not contemporaneously object to jury instructions; after conviction he moved for a new trial arguing the verdict forms/instructions failed to distinguish the felony and misdemeanor variants of fourth‑degree sexual assault. The circuit court denied the motion; the Court of Appeals affirmed, holding the evidentiary exclusions were proper or harmless and that the instruction complaint was not preserved.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Burns)	Held
Admissibility of prior sexual‑conduct allegations under Arkansas rape‑shield statute	Statute bars evidence of victim’s prior sexual‑conduct allegations where victim either asserts them true or denies making them; exclusion within trial court discretion	Excluded evidence (school oral‑sex claim, Bowie County incidents, shelter allegation) was relevant to impeachment and should have been admitted	Affirmed exclusion: items barred by statute; trial court’s ruling not an abuse of discretion
Admissibility of diary entries impugning victim’s credibility	Even if admissible, exclusion was harmless given extensive impeachment and other defense evidence	Diary entries (C.J. Washington virginity entry; statement that she “lies too much”) were critical to credibility and exclusion prejudiced Burns	Affirmed: entries were not shown to cause prejudice—other impeachment and victim testimony supported verdict
Jury instructions and verdict forms failing to distinguish felony vs misdemeanor fourth‑degree sexual assault	Instructions were proper; any objection was not timely/preserved	Failure to differentiate felony and misdemeanor versions rendered verdicts ambiguous and required a new trial	Affirmed denial of new trial: Burns failed to contemporaneously object; issue not preserved for appeal

Vance v. State, 384 S.W.3d 515 (circuit court discretion on rape‑shield evidence)
Allen v. State, 287 S.W.3d 579 (standard for evidentiary rulings)
Douglas v. State, 511 S.W.3d 852 (requirement to object to jury instructions to preserve issue)
Tosh v. State, 646 S.W.2d 6 (post‑trial objections to verdict forms not timely preserved)
McCraney v. State, 360 S.W.3d 144 (preservation requirement for constitutional challenges)
Wooten v. State, 502 S.W.3d 503 (post‑trial motion cannot revive unpreserved instruction issue)