This appeal requires this court to determine whether a criminal defendant charged with rape is entitled under the Confrontation Clause to cross-examine the putative victim about her alleged prior false allegations of rape solely to show that she has a propensity to lie. Appellant Raines, who was convicted of two counts of forcible rape, Section 566.030, RSMo. (1999), 1 and one count of assault in the second degree, Section 565.060, argues that he does have such a right and that the rape shield statute, Section 491.015, RSMo. (2000), does not prohibit his inquiry into the prosecutrix’s false allegations of rape. The trial court held to the contrary regarding the latter, not reaching the constitutional issue. Thus, Raines contends his convictions must be set aside. This court disagrees. Although rape shield statute does not cover Raines’ proposed cross-examination of the victim, there was no Confrontation Clause violation.
I. Facts
The facts in this case are relatively straightforward. The State charged Raines with recklessly causing serious physical injury to and forcibly raping AE., a twenty-two year-old woman. A.E. testified that in the evening of August 29,1999, she met Raines (whom she had dated when she was 16) at a strip club in Sedalia. Raines told A.E. that he wanted to get some alcohol and “party” with her. A.E., married, but separated from her husband, said that she “wasn’t there to get laid.” Raines persuaded A.E. to give him a ride to his truck, where at about 12:30 a.m. A.E. agreed to follow Raines to a place where they could “talk about old times.” En route, A.E. ran her car into a ditch, because her vision had been obstructed by dust kicked-up by Raines truck. A.E. then drove her car to a gas station to determine the extent of damage to her car. Raines told her that he thought the car was fine, and the two resumed their trip, which ended at Hughesville, Missouri.
A.E. testified that it was in the park that Raines viciously and repeatedly raped and assaulted her. According to A.E., the two went on a walk around a pond in Hughes-ville Park, during which Raines asked to kiss her. A.E. refused. They then stopped at a tree that hung over part of the pond. Again, Raines asked for a kiss. A.E. refused. Undeterred, Raines said he wanted a kiss, grabbed A.E. by the shoul
Afraid that Raines was indeed going to kill her, A.E. complied with all of Raines demands. Raines had intercourse with her, holding her by her shoulders so that she could not move. He demanded that she say that she loved him. When she did not say it loud enough for him, Raines hit her on the head repeatedly, causing her to see a bright light and hear ringing in her ears. A.E. loudly prayed for God to help her. She grabbed Raines head and threw him off her, and ran into the pond to get away from him. She took off her shirt to swim.
Raines started walking toward his truck, stopped, turned around, walked to the edge of the pond, and grabbed A.E.’s head, shoving it under water and holding it there for a few seconds. After pulling her head out of the water, he commanded her to fellate him. She refused. He forced her head under water, pulled her head out of the water, and when he let her up he then forced his penis into her mouth. He then pulled her up the bank by her hair near where their vehicles were parked. He had intercourse with her and attempted to have anal intercourse with her. After this, Raines said he was tired and started walking away, but then came back and had intercourse with her again and also stuck his fingers in her vagina. Once again, he walked away, came back, and told A.E. that he wanted to “fuck [her] over the back of [her] car.” A.E. pushed Raines away and got in her car, but Raines tried to pull her out of the car by her hair. To extricate herself from his grasp, she slammed the car door on his leg, after which he said, “Fine, I’m done with you anyway, you bitch.”
Covered in mud, her scalp numb, having trouble seeing out of her left eye, unable to hear out of her left ear, and feeling great pain in her genitalia, A.E. drove to the Pettis County Sheriffs Department. She honked her horn. A deputy came out to help her. A.E. told the deputy that she had been raped. She was interviewed and then taken to the Bothwell Regional Health Center where she was admitted and stayed three days. Registered Nurse Candace Smith, who had treated A.E. in the emergency room and had taken her medical history, testified that A.E.’s hair was wet and there were clumps of grass and dirt in her hair and on her body; that her left eye was swollen and bruised, the white part of the left eye being red; that her left ear was red; that the left side of her head had a bruised knot; and that her body was scratched and bruised everywhere, with injuries to her knees and back, and bruising of her genitalia. Dr. Dale Chapman, who had treated A.E. the morning after she was admitted to the hospital, testified that there was a lot of bruising on her face and on the side of her head and that she had significant swelling and acute bruising in the region of her face around her left eye. Dr. Chapman also concluded that the tympanic membrane in her left ear was ruptured. Her left ear was very bloody. She suffered a permanent partial loss of hearing in that ear. Only a “lot of trauma” could have caused the injuries A.E. exhibited, according to Dr. Chapman.
Before trial, the State filed a motion
in limine
relying on Missouri’s rape shield statute, Section 491.015, RSMo. (2000), to prohibit Raines from “commenting on, arguing, introducing evidence of any matter relating to any prior sexual conduct of the alleged victim....” In response, Raines
Raines referred to two supposedly false allegations of rape made by A.E. in both of his motions. The first, Raines claimed, was made when A.E. was 16 1/2 years old, when she provided a statement to the Pet-tis County Sheriffs Department in which she said that a man had raped her. A few days after making her statement, she wrote a note to the man expressing affection for him and saying that she had never “used a guy in that way before.” There was no express mention of her statement to the Sheriffs Department. The second putatively false allegation was that A.E.’s husband at the time had raped and sexually assaulted her, which she made in a deposition and interrogatory relating to her dissolution action against her husband. Raines claimed that to his “knowledge, information!,] and belief,” AE. never filed a complaint against her husband with the police, and no charges were ever filed against him. Raines did not claim — and nothing in the record even hinted — that A.E. ever recanted this second allegation.
During his trial, Raines did not make an offer of proof of the relevancy of the testimony regarding these two prior allegations.
Raines was sentenced to five years for the assault and ten years on each rape count, to be served concurrently, and consecutive to the assault count. In Raines’ motion for new trial, he states the court erred in overruling his motions pursuant to Section 491.015 to present evidence of the two prior allegations, which were relevant to the issue of her reliability and credibility. In his motion, he admits he was not attempting to present evidence of her prior sexual conduct and the statute should not exclude “evidence of her false statements.”
On appeal, Raines raises two points: (1) there was insufficient evidence to convict the defendant of either offense; and (2) that the trial court denied his Sixth Amendment right to confront his accusers by misapplying the rape shield statute and not allowing him to cross examine A.E. as to alleged false accusations of rape made by her against other men.
II. Standard op Review
In reviewing a challenge to the sufficiency of the evidence, this court must accept as true all evidence favorable to the verdict and all reasonable inferences therefrom, ignoring all evidence and inferences that undermine the verdict.
State v. Goudeau,
A.
In Raines’ first point, he argues that the trial court erred in denying his motion for a directed verdict and his motion for a J.N.O.V. because there was insufficient evidence for the jury to find, beyond a reasonable doubt, that he had caused A.E. to suffer a “serious physical injury.” This point is without merit. As the State points out, “serious physical injury” is not an element of the crime of forcible rape, which only requires proof that the defendant “has sexual intercourse with another person by the use of forcible compulsion.” § 566.030.1. While the verdict directors in this case listed “serious physical injury” as an element the jury must find beyond a reasonable doubt, Raines has not argued on appeal that this estops the State from denying that harmful physical injury is an element of forcible rape. In any event, as argued below, Raines did in fact inflict serious physical injury on A.E.
“A person commits the crime of assault in the second degree if he ... recklessly causes serious physical injury to another person.” § 565.060.1(3) “Physical injury” means “physical pain, illness, or any impairment of physical condition,” § 556.061(20), and “serious physical injury” means “physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” §§ 565.002(6); 556.061(28).
Raines argues that there was no evidence from which the jury could find beyond reasonable doubt that he seriously disfigured A.E., that he had exposed her to a substantial risk of death, or that he had caused protracted loss or impairment of the function of any part of A.E.’s body. He is wrong.
(1) Raines hit A.E. over twenty-five times in the head, which caused severe bruising on the left side of her face and around one of her eyes. This is enough to prove that he caused A.E. physical pain, that is, “physical injury,” that created a substantial risk of death, that is, “serious physical injury.” As Dr. Chapman testified, the rupturing of A.E.’s tympanic membrane, evidenced by A.E.’s hearing loss, must have been caused by trauma. That creates a strong inference, which this court must accept as true, that Raines’ punches were trauma inducing. Add to all this Raines’ holding A.E.’s head underwater and that he forced intercourse from her at least five separate times — all this indicates that the jury could have concluded that Raines’ was not just trying to force sex from A.E., but also trying to cause grievous harm to her, perhaps even trying to kill her.
(2) The rupturing of A.E.’s tympanic membrane was also protracted loss or impairment of the function of A.E.’s ear. “‘Protracted’ means something short of permanent but more than of a short duration.”
State v. Ross,
(3) There was also ample evidence that Raines had seriously disfigured A.E., meaning “deface[d] or mar[red] the appearance or beauty of [A.E.]”
State v. Im
Raines’ second point on appeal is that the trial court violated his rights under the Sixth Amendment’s Confrontation Clause
2
by granting the State’s motion
in limine,
which precluded Raines from both cross-examining A.E. about and introducing extrinsic evidence of her prior false accusations. It contends that the point was not preserved because he did not make an offer of proof to establish the relevancy of A.E.’s past allegations of rape. In general, when a trial court has granted a motion
in limine
to exclude evidence, the proponent thereof must (a) attempt to admit the evidence and (b) make an offer of proof to preserve the issue for appellate review,
State v. Purlee,
to make certain that the trial court and opposing counsel understand what evidence is being offered and its relevancy and materiality. It follows that the reason for a formal offer of proof does not exist if the trial court and counsel by other mean[s] are sufficiently advised as to what the testimony of the witness will probably be if he is allowed to testify.
State ex rel. State Highway Comm’n v. Northeast Bldg. Co.,
While Raines did not make a formal offer of proof, his motion to reconsider did explain what the evidence was to be— two prior false allegations of rape by A.E.; the purpose and object of the evidence — to undermine A.E.’s credibility and to prove A.E. has made a pattern of false claims of rape; and the basis for the admissibility of the evidence — cases holding that the rape shield statute was inapplicable. Both the State and the trial court were well aware of the reasons Raines gave why he should have been allowed to cross-examine A.E. about her previous claims of rape. Nevertheless, because Raines never attempted to cross-examine A.E. about her (allegedly false) prior allegations of rape and because the trial court’s ruling on the State’s motion
in limine
was interlocutory,
State v.
Raines first claims that the trial court erred in concluding that the rape shield statute, section 491.015, RSMo. (2000), required it to bar any cross-examination about A.E.’s past false allegations of rape. (He has not argued that the evidence was otherwise admissible, except as required by the Confrontation Clause.) Raines is correct. As applicable here, the rape shield statute renders inadmissible “evidence of specific instances of the complaining witness’
prior sexual conduct
or the absence of such instances or conduct” in prosecutions under Chapter 566 e.g., prosecution for violating Section 566.030, the statute Raines was charged with violating. § 491.015.1. (emphasis added). “Sexual conduct” means “sexual intercourse, deviate sexual intercourse or sexual conduct.” § 566.010(2). “Evidence of a victim’s prior complaints, as opposed to prior sexual conduct, does not fall within the ambit of section 491.015.”
State v. Scott,
There was a basis, under the rules of evidence, for the trial court to deny Raines’ motions, namely, that they were too broad. In the first, he sought leave “to allow him to inquire and present evidence of [A.E.’s] prior sexual conduct,” and, in the second, “to inquire and present evidence of [A.E.’s] false statements of prior sexual assault.” In general, a party may inquire of specific acts of misconduct not resulting in conviction (i.e., prior bad acts) on cross if they relate to the credibility of the witness, but these prior bad acts may not be proved by extrinsic evidence.
Rousan v. State,
The question remains, however, leaving aside the problems with Raines position under the ordinary rules of evidence: Did the Confrontation Clause require the trial court to allow Raines to cross-examine A.E. about her allegedly false allegations of rape? It did not. The Confrontation Clause, applicable to the states
via
incorporation into the Fourteenth Amendment,
Pointer v. Texas,
Even if Raines’ motion should be narrowly interpreted merely as a request to cross examine A.E. about her prior false allegations, this court must reject Raines’ point. While the Supreme Court has held that the Confrontation Clause confers a right to cross-examine witnesses to expose bias or a motive to fabricate,
Olden v. Kentucky,
The distinction between impeachment evidence proving bias and impeachment of general credibility is important because generally applicable evidentiary rules limit inquiry into specific instances of conduct through the use of extrinsic evidence and through cross-examination with respect to general credibility attacks, but no such limit applies to credibility attacks based on motive or bias.
United States v. Hill,
The Eighth Circuit, as well as the majority of federal appellate courts that have addressed this issue, has held that a trial court does not violate the Confrontation Clause by prohibiting a defendant from cross-examining a witness where the sole purpose of the cross examination is to prove that the witness’s tendency to lie, based on a pattern of past lies.
Id. Boggs v. Collins,
Trial courts have broad discretion in limiting the scope of cross-examination.
State v. Dunn,
The only federal appellate court to conclude that the Confrontation Clause gives defendants a right to cross-examine a witness about prior false allegations of rape solely to undermine the witness’s general credibility requires defendants to “convincingly” prove that the prior allegations were false.
See Velasquez v. United States,
As stated earlier, this point is examined under plain error, Rule 30.20. Raines, therefore, bore the burden of showing that as a result of the trial court’s action there was a resulting manifest injustice or a miscarriage of justice.
When the evidence of guilt is established by overwhelming evidence, and there is no constitutional violation, no manifest injustice or miscarriage of justice results, which would require relief under plain error.
State v. Williams,
The judgment of the trial court is affirmed.
All concur.
Notes
. Unless indicated otherwise, all statutory references are to RSMo. (1999).
. Raines has not argued that the trial court violated Missouri’s analogue to the Confrontation Clause, Article 1, section 18(a) of the Missouri Constitution. The protections provided by Section 18(a) are coextensive with those of the Sixth Amendment.
State v. Hester,
. Of the states to consider whether their rape shield statutes bar evidence of prior false allegations of rape, the vast majority have reached the same conclusion.
See Booker v. State,