Graydon v. State

Joe Willie GRAYDON v. STATE of Arkansas

CR 97-271                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 25, 1997


1.   Criminal law -- rape-shield statute -- conditions for admissibility of
     victim's prior sexual conduct. -- Arkansas Code Annotated section
     16-42-101 (Repl. 1994), commonly referred to as the rape-
     shield statute, provides that evidence of a victim's prior
     sexual conduct is inadmissible at trial except where the
     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.

2.   Criminal law -- rape-shield statute -- purpose. -- The purpose of the
     statute is to shield victims of rape or sexual abuse from the
     humiliation of having their personal conduct, unrelated to the
     charges pending, paraded before the jury and the public when
     such conduct is irrelevant to the defendant's guilt.

3.   Criminal law -- rape-shield statute -- trial court's discretion. -- The
     trial court is vested with a great deal of discretion in
     ruling whether a rape victim's prior sexual conduct is
     relevant; the appellate court will not overturn the trial
     court's decision unless it constituted clear error or a
     manifest abuse of discretion.

4.   Criminal law -- sexual offenses -- prior acts of sexual conduct not
     evidence of consent in subsequent sexual act. -- Prior acts of sexual
     conduct are not within themselves evidence of consent in a
     subsequent sexual act; there must be additional evidence
     connecting the prior acts to the consent alleged in the
     subsequent act before the prior acts become relevant.

5.   Criminal law -- rape-shield statute -- primary purposes. -- The primary
     purposes of the rape-shield statute are to protect the victim
     and encourage rape victims to participate in the prosecution
     of their attackers; such worthy purposes would be thwarted if
     every defendant in a rape case were allowed to present
     uncorroborated "evidence" that he and the victim had
     previously engaged in sexual intercourse over the victim's
     denial that she had ever known her assailant before the
     incident.

6.   Criminal law -- rape-shield statute -- trial court's decision to deny
     admission of proffered evidence upheld. -- In light of the evidence
     presented at the rape-shield hearing, the supreme court could
     not say that the trial court's decision to deny admission of
     the proffered evidence constituted clear error or manifest
     abuse of discretion; the only evidence presented that
     supported appellant's version of events was his own self-
     serving testimony; there was no corroborating evidence that
     even linked appellant with the victim prior to the date of the
     offense, let alone evidence of their having carried on a
     clandestine affair for several months; particularly here,
     where the victim was badly beaten and injured, the minute
     probative value of allegations of prior consensual intercourse
     between the victim and the attacker were clearly outweighed by
     the inflammatory nature of the alleged evidence; furthermore,
     appellant failed to offer any additional evidence connecting
     the alleged prior acts to the consent alleged in the present
     incident.


     Appeal from Jefferson Circuit Court, Second Division; H.A.
Taylor, Judge; affirmed.
     Maxie G. Kizer, for appellant.
     Winston Bryant, Att'y Gen., by:  Kelly Terry, Asst. Att'y
Gen., for appellee.

     Donald L. Corbin, Justice.
     Appellant Joe Willie Graydon appeals the judgment of the
Jefferson County Circuit Court convicting him of rape and second-
degree battery and sentencing him to a term of life imprisonment
and six years' imprisonment, respectively.  Our jurisdiction of
this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(2).  Appellant's
sole assignment for reversal is that the trial court erred in
excluding evidence of prior sexual conduct between himself and the
victim, which he offered as evidence of the victim's consent.  We
find no error and affirm.
     The record reflects that the crimes occurred on September 4,
1995, in Pine Bluff, under a bridge on the Arkansas River.  The
victim, an eighteen-year-old girl, was taken to the hospital
emergency room that same date and later admitted to the hospital
with injuries to her face and back, consisting of bruising,
swelling, lacerations, and abrasions.  There was massive swelling
on one side of the victim's face, such that her eyes were swollen
shut, her lips were swollen, and she had blood on her head and
face.  The victim also sustained a broken cheek bone and a cracked
bone in her sinus area.  Her injuries required sutures on her right
temple, above her right eye, and below her chin.  Additionally,
officers observed bruised areas on each side of her neck that were
consistent with finger impressions.    
     Prior to trial, Appellant filed a motion pursuant to Ark. Code
Ann.  16-42-101 (Repl. 1994) requesting that the trial court set
a hearing to determine the admissibility of evidence that he and
the victim had been lovers for a period of time before the date of
the alleged incident.  Appellant asserted that this evidence was
relevant to the issue of consent.  A hearing was held, during which
both Appellant and the victim testified.  Appellant stated that he
had been engaged in a sexual relationship with the victim, whom he
referred to as "Pee Wee," for about four months prior to the time
of the offense.  He stated that every time they had sexual
intercourse, the victim was a willing participant.  He stated that
they would sneak off together and that no one knew about their
relationship because he was living with another woman at the time
and the victim was much younger than he was.  The victim, on the
other hand, testified that she did not know Appellant at all until
the day of the rape.  She stated that she had never had sexual
intercourse with Appellant.  She stated further that no one calls
her "Pee Wee."  
     Monica Hadley, the victim's sister, testified that she and her
sister were living together at the time of the crime.  She
indicated that they were close and that her sister would talk about
her boyfriends.  She stated that she had never heard her sister
mention Appellant's name or that anyone called her "Pee Wee."  
     Wilda Chadick, a teacher at Pine Bluff High School, testified
that she had been tutoring the victim after school and that she
would often give the victim a ride home after the sessions.  She
stated that during those rides, she and the victim would talk.  She
also indicated that she would see the victim every day and would
visit with her at ball games and other times.  She stated that she
had never heard of Appellant until the day of the incident and that
she had never heard anyone call the victim "Pee Wee." 
     According to the probable cause statement, which was admitted
as an exhibit at the hearing, the victim reported the attack to
police while she was in the hospital.  She told the police that she
had been walking home after work when a vehicle pulled up alongside
her.  The man in the vehicle asked her for directions to Kentucky
Street.  Although she knew where the street was, she did not feel
that she could give proper directions, so she told the man she did
not know how to get there.  The man then drove away, and she
continued walking.  A short time later, the man pulled up alongside
her again.  This time the man told her that he was from out of town
and needed directions to the homes of Tameka Brimmer and Felicia
Jones.  The man then read to her the written directions he had been
given to the Jones home.  He asked her if she could show him how to
get there and told her he would give her a ride home if she would
help him.  She agreed and got into his car.       
     The victim told the police that the man stopped for gas along
the way and that she had waited in the car.  The man then drove to
the north side of a bridge on the Arkansas River.  When he drove up
under the bridge, she repeatedly told him that he could turn
around, as they were apparently not going in the right direction. 
The man then stopped the car and immediately grabbed her around the
neck and began choking her.  He put his hand between her thighs and
told her not to scream because no one would hear her out there.  He
then pulled off her shorts and panties and performed oral sex on
her.  She told him several times to stop.  After a short time, the
man stopped performing oral sex and asked her if it felt good.  She
told him that it did not feel good and put her hands between her
legs.  The man then started choking her again.  When he stopped, he
took off his pants, crawled on top of her, and began having sexual
intercourse with her.  When she tried to squeeze her legs shut, the
man choked her again and hit her in the face.  The man forced her
legs open and continued having sexual intercourse again.  He then
climbed off her, put on his clothes, and walked around to her side
and told her to get out of the car.  She then dressed and got out
of the car.  The man then asked for a hug, which she gave him.  He
told her that the hug was not right and began choking her again. 
She told the police that she believed it was at that point she
passed out and fell to the ground.  When she woke up, she walked to
the freeway and flagged down a passing motorist, who drove her to
the hospital.  She told police that she had never seen the man
before that date.  She was able, however, to provide a detailed
description of the man and the car.  Two days following the attack,
the victim immediately identified Appellant as the assailant from
a photographic lineup.         
     When Appellant was informed by the police that he was a
suspect in the rape, he denied any involvement or knowledge of the
battery or rape.  He told police that on the date of the rape, he
had had sexual intercourse with another woman under the same bridge
where the attack had occurred.  After further interview, however,
he recanted that statement and claimed that he had had consensual
intercourse with the victim, whom he referred to as "Pee Wee,"
under the bridge.  He stated that he had initially picked up the
girl at the Jiffy "J" convenience store after having received a
message from her.  He stated that afterwards, he had dropped her
off on West 13th Street and then drove home.  Appellant then
changed his statement again, claiming that after he had dropped off
the victim on West 13th Street, he picked her up again and they
returned to the bridge and had intercourse a second time.  He then
stated that after they finished having sex, the victim had asked
him for money and that when he refused to give her any, they began
to fight.  He stated that the victim kicked him in the groin area
and that he struck her three to five times in the face with his
fist and his elbow.  He also admitted that he kicked her in the
stomach, knocking her to the ground.  He stated that he then got
into his car and drove away, leaving the injured girl under the
bridge.  He claimed that he did not rape the girl and that the two
of them had engaged in sexual intercourse numerous times in the
past.
     Several days after the hearing, the trial court issued a
written order denying Appellant's motion.  The order reflected that
after hearing the testimony of the witnesses and argument of
counsel, it was the court's judgment that the uncorroborated
evidence of prior sexual conduct between Appellant and the victim
would not be admissible at trial.  Appellant now contends the trial
court's ruling was erroneous.  We disagree.            
     Section 16-42-101, commonly referred to as the rape-shield
statute, provides that evidence of a victim's prior sexual conduct
is inadmissible at trial except where the 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.  State v. Sheard, 315 Ark.
710, 870 S.W.2d 212 (1994) (citing Marion v. State, 267 Ark. 345,
590 S.W.2d 288 (1979)).  The purpose of the statute is to shield
victims of rape or sexual abuse from the humiliation of having
their personal conduct, unrelated to the charges pending, paraded
before the jury and the public when such conduct is irrelevant to
the defendant's guilt.  Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995).  The trial court is vested with a great deal of
discretion in ruling whether the victim's prior sexual conduct is
relevant.  Id.  We will not overturn the trial court's decision
unless it constituted clear error or a manifest abuse of
discretion.  Id.; Gaines v. State, 313 Ark. 561, 855 S.W.2d 956
(1993).  
     Appellant argues that the evidence of the victim's prior
sexual intercourse with him was relevant to show that she consented
in the present case.  Prior acts of sexual conduct are not within
themselves evidence of consent in a subsequent sexual act. 
Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979).  There must
be additional evidence connecting the prior acts to the consent
alleged in the subsequent act before the prior acts become
relevant.  Id.  Here, Appellant argues that the evidence connecting
the prior acts to the present act is the fact that the victim
voluntarily got into his car on the date of the offense.  We are
not persuaded by this argument, which, taken to its logical
conclusion, implies that the act of helping a stranger is
tantamount to establishing a previous relationship between two
people such that any act of sexual contact would be deemed
consensual.  
     In light of the evidence presented at the hearing, we cannot
say the trial court's decision to deny admission of the proffered
evidence constituted clear error or manifest abuse of discretion. 
To the contrary, the only evidence presented that supports
Appellant's version of events was his own self-serving testimony. 
There was no corroborating evidence that even linked Appellant with
the victim prior to the date of the offense, let alone evidence of
their having carried on a clandestine affair for several months. 
The primary purposes of the rape-shield statute are to protect the
victim and encourage rape victims to participate in the prosecution
of their attackers.  Brewer v. State, 269 Ark. 185, 599 S.W.2d 141
(1980).  Such worthy purposes would surely be thwarted if every
defendant in a rape case was allowed to present uncorroborated
"evidence" that he and the victim had previously engaged in sexual
intercourse over the victim's denial that she had ever known her
assailant before the incident.  Particularly in this case, where
the victim was badly beaten and injured, the minute probative value
of allegations of prior consensual intercourse between the victim
and the attacker are clearly outweighed by the inflammatory nature
of the alleged evidence.  Furthermore, Appellant failed to offer
any additional evidence connecting the alleged prior acts to the
consent alleged in the present incident.      
     In accordance with Rule 4-3(h) of the Arkansas Supreme Court
Rules, the record has been reviewed for adverse rulings objected to
by Appellant but not argued on appeal.  No such errors were found. 
For the aforementioned reasons, the judgment of conviction is
affirmed.