{ "id": 6140662, "name": "Jason BASHAM v. STATE of Arkansas", "name_abbreviation": "Basham v. State", "decision_date": "2006-05-17", "docket_number": "CA CR 04-963", "first_page": "238", "last_page": "241", "citations": [ { "type": "official", "cite": "95 Ark. App. 238" }, { "type": "parallel", "cite": "235 S.W.3d 913" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "108 P.3d 182", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "208" } ], "opinion_index": 0 }, { "cite": "325 Ark. 469", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369166 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0469-01" ] }, { "cite": "717 S.W.2d 784", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1873673, 1873755 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0129-01", "/ark/290/0130-01" ] }, { "cite": "290 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873755 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0130-01" ] }, { "cite": "357 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5401889 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/357/0180-01" ] }, { "cite": "79 Ark. App. 447", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142908 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/79/0447-01" ] }, { "cite": "47 Ark. App. 96", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137971 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark-app/47/0096-01" ] }, { "cite": "486 U.S. 439", "category": "reporters:federal", "reporter": "U.S.", "year": 1998, "opinion_index": 0 }, { "cite": "386 U.S. 738", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182629 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0738-01" ] } ], "analysis": { "cardinality": 462, "char_count": 6511, "ocr_confidence": 0.775, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17492969667343541 }, "sha256": "cabaf1b28b7551113d5fd78d3c556f36af5e7c69f8672e447d537e695ef00bd1", "simhash": "1:7ea2e7625e3491fe", "word_count": 1084 }, "last_updated": "2023-07-14T15:50:54.342319+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Robbins, J., agrees.", "Pittman, C.J., concurs." ], "parties": [ "Jason BASHAM v. STATE of Arkansas" ], "opinions": [ { "text": "Karen R. Baker, Judge.\nJason Basham was convicted in a Saline County jury trial of first-degree terroristic threatening, second-degree sexual assault, second-degree battery, and rape. He was sentenced to a total of forty-four years\u2019 imprisonment in the Arkansas Department of Correction.\nAppellant\u2019s counsel initially filed a motion to withdraw on the grounds that the appeal was without merit pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals. On June 29, 2005, we ordered rebriefing on the grounds that appellant\u2019s counsel had not briefed all adversarial rulings. On January 11, 2006, we again ordered rebriefing. The terms \u201cwholly frivolous\u201d and \u201cwithout merit\u201d are often used interchangeably in the Anders brief context. Whichever term is used to describe the conclusion an attorney must reach as to the appeal before requesting to withdraw and our court must reach before granting the request, what is required is a determination that the appeal lacks any basis in law or fact. McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 439 (1998).\nDue to our conclusion that an argument on appeal addressing evidence of prior bad acts pursuant to 404(b) would not be wholly frivolous, counsel\u2019s motion to withdraw was denied and we ordered rebriefing in adversary form. Tucker v. State, 47 Ark. App. 96, 885 S.W.2d 904 (1994). In this adversarial brief, appellant\u2019s sole argument is that the trial court erred in allowing evidence of prior bad acts pursuant to Rule 404(b). He asserts that the State\u2019s argument that the similarity of the acts showed absence of mistake or accident is inapplicable under the facts of this case. We find that the trial court did not err and affirm.\nThe admission or rejection of evidence under Rule 404(b) is committed to the sound discretion of the trial court, and we will not reverse absent a showing of manifest abuse. Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002). The general rule is that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, is not admissible at the trial of the accused. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004). The list of exceptions set out in the rule is exemplary and not exhaustive. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). Testimony is admissible pursuant to Rule 404(b) if it is independently relevant to the main issue, relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal or a bad person. Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996).\nThe trial court in this case conducted a hearing on March 9, 2004, to determine the admissibility of the testimony appellant challenges here. The witness testified that approximately three and one-half years before, when she was living with appellant and pregnant with his child, he forced her to have anal sex. She described how when she tried to get away from him and screamed at him to stop, he pushed her down on her stomach and held her down with his body. She stated that appellant eventually ended the painful experience because he became \u201cturned off\u2019 by her crying and screaming. This event led to her terminating the relationship.\nAppellant\u2019s rape conviction on the rape charge arose from appellant anally penetrating his wife with his penis by forcible compulsion while beating her until she could not see, threatening the children, and forcing their young son to witness the attack. The victim testified that appellant first became violent with her when she was pregnant with their first child. The circumstances surrounding the rapes were not identical, but their similarities \u2014 that appellant was willing to disregard the wishes of persons with whom he was in intimate relationships and to use force to anally penetrate them \u2014 rendered the testimony of the earlier rape admissible.\nAt trial and on appeal, appellant argued that he and the victim engaged in consensual anal intercourse. However, when appellant\u2019s counsel asked appellant whether his wife ever protested in engaging in anal sex, he replied, \u201cNot \u2014 not indirect,\u201d and then elaborated, \u201cAt one point, she said that \u2014 at one point she said that, no, she didn\u2019t want it that way, at one point[,]\u201d but that he did it that way anyway. On cross-examination, he explained that \u201cshe never said no, no, stop that. The only thing she ever said was no, she didn\u2019t feel like it[,]\u201d adding \u201c[s]he just said no she didn\u2019t feel like anal sex.\u201d\nThis testimony could reasonably be understood to be a claim that appellant mistakenly thought the victim consented. Appellant contends that the plain meaning of the words mistake or accident are inapplicable to this case because no party suggested that appellant had sex with his wife by mistake or accident \u2014 he readily admits they had sex. We agree with appellant that the issue was not whether sexual contact occurred. The factual determination to be made by the fact finder was not whether appellant mistakenly had sex, but whether appellant mistakenly believed the victim had consented to the act.\nAlthough our legislature has not adopted the mistake-of-fact defense to a rape charge, the State of California allows the defense. The case of People v. Stitely, 108 P.3d 182 (Cal. 2005) addressed the defense and an examination of the defense aids our analysis. The mistake of fact defense to a rape charge has two components: first, the defendant must have honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse, which involves evidence of equivocal conduct by the victim that the defendant mistook for consent; second, an objective component asks whether the defendant\u2019s mistaken belief regarding consent was reasonable under the circumstances. See id. at 208.\nTherefore, the witness\u2019s testimony was relevant to the factual determination of whether appellant honestly and in good faith, albeit mistakenly, believed the victim consented to anal penetration. Accordingly, the trial court did not err in finding the testimony independently relevant to the issue of lack of mistake as to consent.\nAffirmed.\nRobbins, J., agrees.\nPittman, C.J., concurs.", "type": "majority", "author": "Karen R. Baker, Judge." } ], "attorneys": [ "Dustin D. Dyer, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Vada Berger, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Jason BASHAM v. STATE of Arkansas\nCA CR 04-963\n235 S.W.3d 913\nCourt of Appeals of Arkansas\nOpinion delivered May 17, 2006\nDustin D. Dyer, for appellant.\nMike Beebe, Att\u2019y Gen., by: Vada Berger, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0238-01", "first_page_order": 264, "last_page_order": 267 }