*1 329 stand, had taken inconsistent given appellant statement, concerning with the cross-examination prior However, statement have been had not proper. appellant taken the did do so. state stand not intend to obviously is, was allowed to do what it could not indirectly do directly, present evidence of appellant’s involuntary statement. prior Thus, She was forced either withdraw the witness. she testify all free the elements the case deny against without giving leave the Government to use its illegally procured statement.
Olan WEST v. STATE of Arkansas CR 86-147 719 684 S.W.2d Court of Arkansas
Supreme delivered November Opinion [Supplemental Opinion Rehearing Denial of January 1987.*] JJ., *Dudley Hays, grant rehearing. would *2 Worsham, Coulson, L. Gene and Gladden Beth appellant. Asst. Gen., Att’y Clark, Huggins, Joel O. by: Att’y
Steve Gen., for appellee.
George West, Oían The appellant, Smith, Justice. Rose and was degree in the first sexual abuse was convicted $5,000 fine. and a of imprisonment term six-year sentenced to a an case to us as presenting Court of transferred Appeals The of significant public and a question construction statutory issue of For reversal the (4)(b). appellant and 29(l)(c) Rule interest. should have Ashcraft Kenny argues that the excluded, prosecu- similar accusations of earlier failed to prove and that the State permitted, trix should have been on the second judgment We reverse the “forcible compulsion.” grounds. the three offense, knew at the time of the old years
The prosecutrix, the church at twice attended slightly, having the defendant West December that on which he the minister. She testified was afternoon, leaving as she was one and two the between (about home wanted a ride to her West asked her if she local store she wanted to walk. He said She said highway). two miles out the while and would ask her in a little way he would be down that a while she looked after she had walked She testified that again. As road on of a hill. sitting top his back and saw truck her a ride. She with her and offered caught she he kept walking up tired, get told her not to until because she was but he accepted home he turned off Instead of her gone taking some cars had by. Mountain. As they dirt road that went up Hyster and drove on a a black He told her top. were she saw a white car with going up head, He something.” “someone think might duck her because until he moved hand driving her head down and kept pressed said, now.” and can lift “Okay, you up went to he told her there was a trail that they
When stopped, out, he house. and They got a cliff from which she could see her He came up followed twо feet from the cliff. her until she stopped her, her, his hand over her left behind his arms around put put her breast, She said he cupped and kissed the back of her neck. With she removed firmly squeezed breast it. some difficulty truck, his arms and ran back to the where else to knowing go. back, When started he told her not to tell of her friends she had been with him. He her out at the took home let the driveway. end of prosecutrix’s mother testified that she heard a car door outside,
slam, went and met her about daughter down the halfway driveway. The mother said she knew was something terribly wrong, girl because the Under shaking crying. rule, excited utterances A.R.E. Rule excеption hearsay 803(2), mother testified in detail about the account girl’s what had which was the same as happened, substantially girl later testified. *3 Ashcraft,
Another witness for State the was who had Kenny known West for 34 “all years, life.” He that on my said the 8, 1984, afternoon of December he on met West in his truck Hyster Mountain. Ashcraft was in a white car. He said West had seat, his arms flung against “something back the and went down in was, the seat.” He wasn’t sure what it but he did see blond hair.
West testified that he had never prosecutrix, the picked up had never her taken had anywhere, and never touched her 8, breasts. He said that at 9:00 about a.m. on December Saturday, he his and wife had left their home in Perry County and had to driven where their son Ashley County, lived. The Wests got there about 3:00 On the next p.m. day, West took his Sunday, wife to Louisiana and to his returned son’shouse. The deer season on opened West Monday; testified that he and his son hunted all joined 14, week. He his wife in Louisiana on they December and 15, drove back to Perry December home at County getting about 5:00 West’s p.m. was as to testimony corroborated various mother-in-law, son, times and his places by grandsons, two and a brother-in-law. West had been a minister in Perry County years 28 and the presented of several character testimony it, witnesses. As brief appellant’s the the case was reduced to puts a swearing match. The of the jury accepted the State’s witnesses. error; is,
We first discuss the point presenting reversible that the court’s refusal to allow the defense cross-examine her prosecutrix about similar accusations two other men. against a when State made began, before the trial issue arose about exclude evidence the court to in limine for motion held that The court evidence former accusations. counsel, Defense in limine. motion granted admissible and that it was testimony, said making proposed later a proffer ever that she had deny would anticipated prosecutrix that Counsel made this then anyone. made statements any such proffer: would that the testify prose-
. witnesses [Tjhree . . on two . . . had statements to them witness made cuting at one time a concert occasions. ... At different [she] breast, stated someone had touch attempted area, there was this went to learning upon occasion, she to them no On another had stated one there. her, this again, had to fondle her uncle attempted had denied the uncle. agreement admissibility,
The courts are not
about
offenses,
cases
or other sexual
that the
rape
later
be false
hаd made similar accusations that she
admitted to
cases,
or that are
to be false. The
few
proved
comparatively
number,
Hurlburt,
People v.
are collected in an annotation
333 P.2d
The cases have that admitted the evidence are from the principal cited, two states Michigan. California State, Arkansas decision on the is Peters v. only point 103 Ark. 491 (1912). 146 S.W. That was a for prosecution the rape girl. On cross-examination she was 12-year-old if asked she had not told certain that she had had person Sanders, intercourse with old if she man had not told another defendant, that she had person had intercourse with the and if she had not told still a third person that she had had intercourse with men a great number of times. The all prosecutrix answered three questions the The trial negative. judge refused to allow the defense to call witnesses to that she had made the testify alleged One, statements. We upheld ruling, giving two reasons. the statements, made, defense did not offer to that if were prove Two, false. although it that the argued statements would go to show that prosecutrix had a mania for such making false charges, there was no that she was deranged, of mentally mind, weak subject hallucinations.
Wigmore severely criticized second for ground exclusion, that “such a saying dangerous ruling protest.” deserves Evidence, Wigmore 1970). 963 (rev. ed. He recommended § that thе peruse court 924a of his treatise. There he quoted several by articles and other show psychiatrists specialists some women young girls have such fantasies about being attacked men that are induced to false make accusations from time to time.
We agree Wigmore’s with basic criticism of holding our Peters, that we went too far in deciding that the defense must show not merely had a mania making such charges but also that she was In actually insane. that respect we disapprove holding the Peters case. Treating point one first we impression, with the agree taken position *5 California and courts. Here the defense Michigan proposed show that this is the third time the had made such prosecutrix charges and that the first two were false. If the does prosecutrix made the statements that she on cross-examination
deny true, then the have been but them to admits them asserts making were that the statements to prove defense should be permitted admitted, made, were false. That that not and that if is affecting the merely prosecutrix’s be not as would admissible doubt the truth of about raising possible but also as credibility charge. the present have should testimony
The that Ashcraft’s argument informa the that since the theory excluded is on presented tеstified, on the incident the that alleged, prosecutrix tion 15, whatever Ashcraft took on December Hyster place Mountain 8 is immaterial. have seen on the mountain on December our statute the exact That is without substance. Under argument is Ark. Stat. Ann. 43-1015 date of the offense not material. § is, what, if 1977). issue anything, happened The material (Repl. It on one date or the other. Hyster the Mountain version the State jury’s given by was the the prerogative accept the defense. The court was testimony rather than the presented by testimony correct in the to hear the of both permitting jury witnesses, weight the date of the going only conflict to the evidence. third is that the State failed to appellant’s argument that, statute, in West in
prove engaged of the sexual language contact with the forcible Ark. Stat. prosecutrix “by compulsion.” AMCI 1977). gave Ann. 41-1808 The court (Repl. including definitions of sexual contact and forcible compul- means, sion. Sexual an act of among things, contact other sexual gratification involving touching the breast of a female. That definition does is compulsion itself force. Forcible require defined as either force or a threat. Here there physical specified was no threat. Hence State required prove defendant an act sexual contact use of engaged argument force. The is no force has been physical physical shown. case,
Upon this whether force physical was used was a is jury. for the The term force” question “physical Code, not defined which is devoted 18 of Criminal Chapter offenses, to sexual but the same definition of force physical Code, contained four other that definition chapters *6 restraint, force” being: “Physical any bodily impact, means confinement, in 41-501(3) or the threat thereof. Ark. Stat. Ann. § on 41-2101 in the on justification, chapter chapter robbery, § on (8) obstructing governmental 41-2801 in the chapter opera- § tions, Here, 41-3001(4) and in the chapter prostitution. § incident, the defend- according prosecutrix’s version ant his her until she was able by restraining accomplished purpose to free herself. From her his arms around testimony put “[H]e me, and compressed, right his hand over left breast put my I firmly, and had to away break from his arms.” Later she said: “I arms, know, hard, had to remove his and then you just I took off back to the truck.” She also said she no had his forewarning he approach; came from behind her. The up appellant certainly used all the force that physical his necessary accomplish In the purpose. сircumstances this case the was sufficient to support the jury’s verdict guilty.
Reversed and remanded.
Holt, C.J., JJ., Newbern, and Purtle concur. Justice, Newbern, concurring. Oían West has been David convicted of first degree sexual abuse and sentenced to imprison- $5,000 ment for six years and a fine for his putting arms around the fifteen-year-old prosecutrix touching her breast. I do not find this conduct to be that defined the statute describing the crime. In my opinion there was not the sort of “forcible compul- sion” the Arkansas General condemned in Assembly Ark. Stat. Ann. 41-1808(l)(a) 1977) “A (Repl. by providing: person commits sexual abuse if degree first ... he engages sexual contact with another . person by forcible . .” compulsion.
The crucial direct examination was as follows:
Q: first, said, And he got in front of me at and he “This is walked, the trail.” And then I I and walked on ahead in front of cliff, him a ways. little I went to the I and went two cliff, feet me, front of the and he came from behind me, without me his arms knowing, put around and com- pressed, and his put right hand over leftmy breast firmly, arms, and I had to break away from and I took back to the truck. I ran back to the truck. the cliff? in front of stopped And
Q: you Yes, A: ma’am. *7 what happened. tell me again And then
Q: his knowing, me put me without He behind up A: came breast, left me, over right my his hand put arms around the neck. kissed me on breast, did he hold how over your he his hand
Q: put When breast? your me firmly.
HeA: cupped breast, what are is that you he so Q: Okay, squeezed your saying? Yes, ma’am.
A: And kissed neck? he Q: your Yes, A: ma’am.
Q: Okay. know, arms, you And I I had to remove his
A: then broke. hard, to truck. I took back just and then off hard, said, So, break you A: had to remove arms you away?
A: Yes. forewarning that he was going did have
Q: you any Okay, Did he say anything? to behind like that? you come up No, A: ma’am. So, let know that he you he didn’t to
Q: say anything going to approach you? No,
A: ma’am. truck, what then Q: you And when ran back happened? I I I where because just go,
A: in. didn’t know else got in, I he came around got didn’t know that and then place. I mom was go my in. told him I had to home. That got around, turned the truck be worried about me. He going road, while we down the that same driving and then were friends, road, dirt he told me not to tell because any my might get jealous. Q: Not tell friends about what? your A: being About me with him.
Q: What Okay. Okay. happened then? road,
A: He drove on down the and then he drove me to the end of my driveway. pulled He at the end of up my driveway, goes, and then he “I’m to drive going you so, the end of the And driveway.” starting before I was him, I get out and looked over I at and saw him coming toward me. He his hand on the seat and leaned over. I put *8 turned face real my he kissed me on the cheek. quick, And then I got out of the truck walking started up fast towards our house.
“Forcible is compulsion” defined in 41- Ark. Stat. Ann. § 1801(2) force, (Repl. 1977) threat, as a “physical or or express of or implied, death to or of physical injury kidnapping The person.” commentary statute includes the following:
The term “forcible
was used
compulsion”
in
legislаture
1967 in
redefining
degree
offense
first
See,
1967,
rape.
Act. 362 of
1
indexed as Ark.
previously
Stat. Ann.
1973).
the term was
(Supp.
Although
§41-3401
defined,
not
in-
statutorily
legislature presumably
tended to effect no
change
degree
of force necessary
to constitute the offense of
This
rape.
also
chapter
employs
term
“forcible
compulsion”
define
and other
rape
aggravated sex offenses. In
a definition of the
essaying
term, the Commission likewise intended no
change
above,
traditional doctrine.
as
Although,
indicated
Code,
definition is derived from the New York Penal
it was
See,
found
comport well with Arkansas decisional law.
State,
Spencer v.
255 Ark.
(1973)
338 do with have to dealing with this definition
Most of the cases of physical sufficient threat to show a necessary the evidence sexual of consent to the or allegation implication to rebut an harm State, in the v. cited above Spencer conduct case alleged. Chief was such a case. There commentary, quoted statutory there that the contention of an appellant Harris dealt with Justice had that he ab- no forcible compulsion despite was but no displayed weapon knife had ducted the at point The opinion occurred. a later when sexual intercourse short time State, v. 32 Ark. including Bradley reviewed a number of cases of force is quantum which we made it clear that the (1878), the will of against act be consummated long irrelevant as “the in Spencer the female.” The relevant instruction approved State, was: supra, used, or it may it be violence regard
Now with to force fear, mentally. In be the woman in putting physically words, it the will of the against party other the test is—was Ark. at whom the act committed. upon [255 at S.W.2d 859.] the definition of
Most other courts which have considered so in the context of cases. rape forcible have done compulsion not what While are illustrative directly point factually, they is meant the term compulsion.” “forcible the concept
The drafters of the Model Penal Code discussed sometimes, out force or compulsion by pointed threat in order to make it clear that token initial resistance perfectly resist to the enough, existing law woman must specified that drafters text that the victim requirement utmost. The felt *9 that a concept be to submit retained compelled adequately ambigu- token resistance is not while enough avoiding initial 270.4, Penal Comments of the “utmost” Model Code ity phrase. § 4, (Tentative 1955.) 246 No. аt Draft use the Several states which have statutes similar to ours term to define nonconsensual sexual con- compulsion” “forcible 13A-6-61; Hawaii, Alabama, duct as a criminal Ala. Code act. § 707-730; Rev. Stat. Ky. Hawaii Rev. Stat. Kentucky, § § 510.040; 566.030.1; Missouri, Or. Rev. Rev. Oregon, Mo. Stat. § 3121; 163.375; Washing- Stat. Pa. C.S. 18 Pennsylvania, § § ton, 9A.44.040,050, Alabama, Hawaii, and Wash. Rev. Code §§
339 a token initial retained the idea that more than Kentucky resistance is the crime as by describing requiring required forcible sufficient to overcome earnest resistance compulsion its definition. has had occasion to “forci-
Pennsylvania
recently
interpret
Mlinarich,
ble
498 A.2d
In Commonwealth
compulsion.”
(Pa.
1985)
lеgisla-
the court addressed the issue of the
Super.
ture’s
it
intention when
defined
as sexual intercourse with
rape
another
“by forcible
and the
person
compulsion”
interpretation
to be
placed
long
“forcible
After a
phrase
compulsion.”
discussion of the common law
in defining
and its inadequacy
rape
of
because
its
on lack of consent and the
emphasis
requirement
that the victim resist to the “utmost” and the
of
efforts
American Law Institute and the Model Penal Code to find a more
satisfactory definition the intermediate
court
appellate
turned
the state
court’s
of
supreme
interpretation
forcible compulsion.
Quoting
Perrin,
Commonwealth v.
484 Pa.
Again
Rhodes,
in Commonwealth v.
In Commonwealth v. Stambaugh, (Pa. A.2d 1216 Super. 1986), Stambaugh was convictеd raping step- daughter. He appealed, insufficient arguing evidence of “forcible *10 . need “force . . held that the court The appellate
compulsion.” the and to induce of consent as to establish lack be such only the and affirmed additional resistance” without woman submit conviction. Commonwealth, (Ky. App. S.W.2d 638
In Salsman first degree sexual abuse the convicted of 1978), Salsman was In “forcible compulsion.” failure prove the appealed Kentucky the compulsion of forcible discussing the definition code the penal commentary accompanying Court reviewed the that: stated commentary part section. The threat, express implied, includes a ... thе term a person earnest resistance by placing overcomes communicated, and it must . threat be fear. . must [T]he . “earnest phrase be the cause of the submission. . [T]he resistance but than token initial resistance” more requires showing less that the victim was physically incapable than of additional struggle. now. before us surely
There was no “violence” in the instance in the sense requiring Nor was there any “compulsion” some sexual act her will. From against perform of the appellant’s expressed disapproval moment she very is no evidence that conduct from his there breaking away grasp coerсed the appellant any way prosecutrix. No we find the act of this disgusting matter now best amorous of the grandfather prosecutrix’s preacher friend, I sufficient to show cannot the evidence was say of first degree “forcible to a conviction compulsion” necessary sexual abuse. force
There is no used showing appellant I first resistance. display whatever after the prosecutrix’s considering cannot we this case had imagine would be age more appellant nearly prosecutrix. been someone under the law. equally This must be treated appellant reversed, I would include agree I the conviction must be but “forcible prove a basis reversal state’s failure compulsion.”
340-A J., Holt, C.J., in this join opinion. Purtle, of Rehearing Denial Supplemental Opinion 26, January
Dudley Hays, JJ., dissent. Justice, Hays, We dissenting. were mistaken to Steele decide this case initially without regard statute. rape-shield The case was certified to us by Court on that issue Appeals and the was point argued by parties. I believe the rape-shield statute does and that the trial apply judge right ruling that defense counsel could not cross-examinе the witness prosecuting about the alleged accusations. I prior offer three reasons support that conclusion:
I. The Rape-Shield Statute its is Terms Applicable. The rape-shield statute begins by defining its specifically applicability:
In any criminal prosecution under Arkansas Statutes 41-1810, Annotated 41-1803 . through . . evi- opinion dence, evidence, reputation or evidence of In- specific 340-B with the victim’s sexual conduct prior of the
stances admissible other person defendant or any de- defendant, any through direct examination either of the victim or cross-examination through fense witness or witness, credibility attаck the other prosecution defense, victim, any or for consent or other to prove 1977). 41-1810.1 (Repl. Ark. Stat. Ann. other purpose. *12 any criminal prosecu- statute applies It will be noted that the in this charge 41-1810. The through Sections 41-1803 tion under 41-1808. Section case was filed under kind, evidence of for any purpose, The excludes any section 3 of the conduct.” Section rape- “sexual prior about the victim’s defines “sexual conduct”: shield statute Act, requires As in this unless the context plainly used otherwise, activity, conduct” means deviate sexual “sexual intercourse, are contact, as those terms or sexual sexual 41-1801. dеfined Section 41-1810.3.] [§ is defined That term case involves “sexual contact.” The present to: referred the section plainly As in this unless the context Chapter, used . . . otherwise: requires
(8) gratifi- means act of sexual “Sexual contact” anus of a organs of the sex involving touching cation or the breast of female. person, [§ 41-1801.] contact, in turn includes includes sexual which Sexual conduct is in this case. charge the breast of a female. That touching the same are word-for-word Inasmuch as the definitions pertinent statute, it would be and the rape-shield in both the Criminal Code as used in thing conduct” means one difficult to that “sexual say statute. thing another in the rape-shield statute but charging Policy Rape-Shield II. This is Within the Case cases with rape We the earlier compared practice Statute. State, 263 in Duncan under the statute practice rape-shield 1 (1978): 565 S.W.2d Ark. have defendant’s historically
The courts permitted as to her in detail a victim attorney to cross-examine is usually totally This information sexual complete history. obviously Act irrelevant to the charge rape.
340-C designed protect to limit this examination type victim from humiliation. unnecessary State, case, In S.W.2d 288 a later Marion v. 267 Ark. detail, we (1979), greater out that explained policy pointing it exclude some value: testimony having probative
After giving due deference to the the accused right defense, present the statute seeks to protect victim from humiliation at trial based on unnecessary irrelevant and evidence. prejudicial, though probative, no appellant has consti- certainly [Citations omitted.] Here, tutional at right present irrelevant evidence trial. the fact that the victim has two example, illegitimate children and alleged an as a reputation prostitute is issue; i.e., relevant to the central fact in alleged whether the act of sexual intercourse occurred. . . . аctually
. . . Here the statute a valid exercise of the legislature’s to shield the authority victim of a sexual herself, offense from becoming, the defendant. The present case falls within the policy rape-shield *13 statute. Whether someone to the attempted touch prosecutrix’s a issue, breast at has concert no substantial relevance to the main i.e. did the defendant girl take the Mountain and up Hyster there her forcibly squeeze breast? the aim of Certainly the primary attempted cross-examination was to show that the ais prosecutrix liar, as the law preceding the a statute rape-shield permitted defendant to show by and by cross-examination third persons that the had had prosecutrix men, sexual intercourse with other so that she might be found to have lied in saying that the accused used force to overcome her resistance when she claimed to have been raped. The rape-shield law is intended to the victim prevent herself, “from becoming, the defendant.” III. The Appellant’s Remedy Was Under the Rape-Shield law, earlier, Statute. Section 1of the rape-shield quoted excludes kind, evidence for any purpose, about the victim’s prior Act, sexual 41-1810.2, conduct. But Section of the provides that notwithstanding that if prohibition, the defendant has relevant evidence of conduct, the victim’s prior sexual a written motion “shall be filed” stating the for purpose which the evidence is believed to be relevant. An in-chambers is hearing then held. If the court finds that the offered is a relevant to fact in issue
340-D nature, the its outweighs value prejudicial and that its probative bemay what evidence stating a written order court make may introduced the defendant. case, have though might this it
No motion was made in such the State’s motion the court sustained been made even after of the victim. cross-examination to the expected limine prohibit hоwever, statute. defense, under the elected not to proceed cross-examine Instead, right counsel insisted upon in a “no-win” situation. would have way put victim in a that about made similar accusations She be if she had not would asked false, were then admitted that they other men. If she said yes having a If she denied shown her liar. the defense would have be true, accusations, but said were they or admitted them made such to show that the be to call witnesses position the defense would said judge made were false. As the trial accusations had been “You’re motion in limine: sustaining counsel in defense sexual conduct is what trials othеr getting into totally separate this.” doing going into you’re argument could in defense counsel’s The unfairness inherent permitted by the motion avoided filed easily have had that the defense It must be remembered statute. rape-shield the concert the incident at did not have an absolute right prove Peters What we held in ground. if stood her even the prosecutrix State, 1191, 146 S.W. to in (1912), and adhered 103 Ark. case, defense show our in this is that the opinion such accusa making tendency has a prosecutrix pronounced cases favorable That the effect of even the tions. I am that we cited. cases appellant, Michigan Cаlifornia and of a false single of no incident holding aware case would allow hearing The in-chambers accusation is admissible. the defense letting put be instead of fully issue to explored, might the defense in a even position helpless though *14 those tactics. justify not in fact have evidence evidence would have been filed the had the motion Finally, adverse to had been ruling for the record. If preserved State, statute permits the rape-shield attorney permits confer with the prosecuting privately for the A reason interlocutory principal State to take an appeal. on this ruling appeаl we have difficulty experienced unusual its exactly testimony has not disclosed what yet that the defense knowledge without full We have dealt with an issue might be. us, the the facts. If the defense were before issue would motion, the trial be clear-cut. Absent court’s required be wrong. decision not been shown to has I would grant rehearing judgment. and affirm the Dudley, J., joins in this dissent. Davis LAMONS Christina M. CROFT
Nancy
86-95
Supreme Opinion delivered November Hart, Highsmith, Gregg, Farris & Rutledge, by: Phillip Farris, for appellant.
Harkey, Walmsley, Belew & Blankenship, by: John Nor- man Harkey, for appellee. Hickman,
Darrell Justice. This is an from the appeal trial court’s of a new granting trial. The suit was personal injuries caused anby automobile accident. While to turn left into waiting