Gaines v. StateGaines v. State
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- Before:
- Holt
Anthony Gaines appeals from his criminal conviction for rape. Gaines was charged by felony information filed on March 16, 1992 with the crime of raping a fifteen-year-old girl on or about November 16,1991. We affirm.
The prosecuting attorney requested that Gaines be sentenced under our felony sentencing statute for habitual offenders,
The same day as the rape charge was filed, the State filed a petition to revoke Gaines’ two suspended sentences on the basis that he had violated the conditions of his suspended sentences.
The evidence presented by the State was that the victim was fifteen years old at the
Geraldine Pierce, Gaines’ girlfriend and the victim’s aunt, testified as a defense witness that her sister, Kay Kay Mathis, the mother of the victim’s cousin, came to her house the day before the rape occurred. Ms. Pierce said Ms. Mathis threatened her and Gaines although she did not testify as to why. The import of this testimony was never made clear by the defense since the victim was not involved in this dispute. The defense then called, as its only other witness, the policeman who took the victim’s statement at the hospital the night of the rape, and he recounted the victim’s statement of the events that occurred in the motel room the night of November 16,1991. The policeman was questioned about the report he made that night, but that report was not introduced into evidence nor was there any mention of its contents relating to whether the victim was a virgin at the time of the rape.
The jury found Gaines guilty of rape and, after instruction on the habitual offender statute, sentenced him to sixty years in prison. Based on the evidence presented at trial, the judge then revoked Gaines’ suspended sentences for the prior assault and false imprisonment charges and sentenced him to four years on each count to be served concurrently to each other but consecutively to the rape sentence.
This appeal followed.
RAPE SHIELD
On July 16,1992, Gaines filed a motion for a pretrial hearing as provided by
Prior to trial, two omnibus hearings were held where this motion was discussed. At the first, the prosecutor made it clear that she did not intend to introduce the victim’s statement that she was a virgin prior to the rape. The trial court preliminarily ruled that the defense could have a witness present at trial to rebut that statement if she made it, although no final rulings were made. The second hearing was solely on the issue of the admissibility of the victim’s purported virginity. The prosecutor again told the court that she did not intend to bring this up on direct examination of the victim and besides, this statute was designed to protect the victim from unnecessary humiliation; that allowing this evidence would shift the focus from Gaines to the victim’s alleged prior sexual conduct,
First, we observe that Gaines failed to abstract the court’s final letter ruling on this issue but merely listed in his brief the title, “Order,” with a transcript page number. Directly below this listing is found an abstractor’s note that:
The court’s pretrial ruling on August 18,1992, that no testimony would be allowed at trial concerning the victim’s prior sexual conduct, was inadvertently omitted from the appeal transcript. The court permitted the Appellant to supplement the record on appeal, in an Order dated (blank).
We usually do not consider arguments on appeal where the final order appealed from has not been properly abstracted by the appellant. Ark. R. Sup. Ct. 4-2. We will do so in this instance as we are able to glean the trial court’s finding from the abstractor’s note contained in Gaines’ brief.
Our rape shield statute,
(a) As used in this section, unless the context otherwise requires, “sexual conduct” means deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined by § 5-14-101.
(b) In any criminal prosecution under §§ 5-14-103 — 5-14-110, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
(c) Notwithstanding the prohibition contained in subsection (b) of this section, evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim’s prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of the evidence is determined in the following manner:
(1) A written motion shall be filed by the defendant with the court at any time prior to the time the defense rests stating that the defendant has an offer of relevant evidence of the victim’s prior sexual conduct and the purpose for which the evidence is believed relevant.
(2) (A) A hearing on the motion shall be held in camera no later than three (3) days before the trial is scheduled to begin, or at such later time as the court may for good cause permit.
(B) A written record shall be made of the in camera hearing and shall be furnished to the Arkansas Supreme Court on appeal.
(C) If, following the hearing, the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, the court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence.
Obviously, this statute is not a total bar to evidence of. a victim’s sexual conduct but instead makes its admissibility discretionary with the trial judge pursuant to the procedures set out at
On the other hand, we have reversed a court’s refusal to allow the defense in a sexual abuse case to cross-examine the prosecutrix about her similar accusations against two other men. West v. State, 290 Ark. 329, 719 S.W.2d 684 (1986). See State v. Mills, 311 Ark. 363, 844 S.W.2d 324 (1992).
In considering these prior holdings, we cannot decide whether the evidence of the victim’s prior conduct was admissible under the circumstances of this case because Gaines failed to proffer what the evidence would have been. If the offered proof is relevant to a fact in issue, and its probative value outweighs its inflammatory or prejudicial nature, the court may allow it to be introduced consistent with our rules of evidence.
CONFRONTATION CLAUSE
Gaines next argues that his sixth amendment right to confront witnesses against him was violated by not being allowed to cross-examine the victim or present testimony concerning the victim’s prior sexual conduct for the purpose of impeaching her credibility.
A review of the record reveals that Gaines failed to make this argument below, either in pleadings filed with the court, at the pretrial hearings, or at trial. We do not consider issues raised for the first time on appeal. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993); Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992). Even constitutional issues will not be considered when raised for the first time on appeal. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992); Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991); Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).
Furthermore, we have repeatedly rejected arguments that our rape shield statute violence an accused’s right to confront the witnesses against him and his right to due process of law. Kemp v. State, 270 Ark. 835, 606 S.W.2d 573 (1980). See Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979) (an in camera hearing in a rape case held pursuant to [
REVOCATION OF SUSPENDED SENTENCE
Lastly, Gaines argues that the trial court erred in revoking his suspended sentences. Since the evidence presented during his trial on the rape charge was the same evidence the trial court considered in determining that his suspended sentences should be revoked and that by not allowing the testimony concerning the victim’s prior
Not only was the victim’s prior sexual conduct completely irrelevant to the issue of the revocation of Gaines’ suspended sentences on prior, unrelated charges, an examination of the order of conditions of Gaines’ previous suspended sentence reveals that “not violating] any law punishable by imprisonment” was an explicit condition to which Gaines agreed. Arkansas Code Ann. § 5-4-309(d) (1987) provides that if a court finds by a preponderance of the evidence that a criminal defendant on probation or a suspended sentence has inexcusably failed to comply with the conditions of his suspension or probation, it may revoke the suspension or probation.
Gaines’ rape conviction required a finding of guilt “beyond a reasonable doubt,” but revocation of his suspended sentences required a finding based upon only “a preponderance of the evidence.” Ellerson v. State, 261 Ark. 525, 531, 549 S.W.2d 495 (1977). On appeal we do not reverse the trial judge’s decision to revoke a suspended sentence unless it is clearly against the preponderance of the evidence. Brandon v. State, 300 Ark. 32, 776 S.W.2d 345 (1989); Standridge v. State, 290 Ark. 150, 717 S.W.2d 795 (1986); Morgan v. State, 267 Ark. 28, 588 S.W.2d 431 (1979). Based on the jury’s finding of guilt, we hold that the judge’s decision to revoke is supported by a preponderance of the evidence. See Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988) (sufficient evidence to convict a probationer of other felonies was a clear violation of the “no crimes” condition of his probated sentence).
For all the foregoing reasons, we affirm.