{ "id": 1896956, "name": "STATE of Arkansas v. Michael MILLS", "name_abbreviation": "State v. Mills", "decision_date": "1992-12-21", "docket_number": "CR 92-625", "first_page": "363", "last_page": "372", "citations": [ { "type": "official", "cite": "311 Ark. 363" }, { "type": "parallel", "cite": "844 S.W.2d 324" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "301 Ark. 222", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885547 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/301/0222-01" ] }, { "cite": "431 U.S. 651", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1917 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/431/0651-01" ] }, { "cite": "302 Ark. 597", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884316 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0597-01" ] }, { "cite": "301 Ark. 376", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885479 ], "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "jurisdiction lacking because no provision in constitution or rule of criminal procedure" }, { "parenthetical": "jurisdiction lacking because no provision in constitution or rule of criminal procedure" } ], "opinion_index": 0, "case_paths": [ "/ark/301/0376-01" ] }, { "cite": "301 Ark. 20", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885503 ], "weight": 2, "year": 1989, "pin_cites": [ { "parenthetical": "jurisdiction lacking because no provision found in criminal procedure rule" }, { "parenthetical": "jurisdiction lacking because no provision found in criminal procedure rule" } ], "opinion_index": 0, "case_paths": [ "/ark/301/0020-01" ] }, { "cite": "302 Ark. 447", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884306 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0447-01" ] }, { "cite": "309 Ark. 64", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906064 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0064-01" ] }, { "cite": "719 S.W.2d 684", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1873676, 1873781 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/290/0329-01", "/ark/290/0261-01" ] }, { "cite": "290 Ark. 329", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873676 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/290/0329-01" ] }, { "cite": "719 S.W.2d 684", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1873676, 1873781 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/ark/290/0329-01", "/ark/290/0261-01" ] }, { "cite": "290 Ark. 329", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873676 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/ark/290/0329-01" ] }, { "cite": "368 S.E.2d 263", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 2 }, { "cite": "40 N.W. 473", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1888, "opinion_index": 2 }, { "cite": "72 Mich. 367", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1364309 ], "year": 1888, "opinion_index": 2, "case_paths": [ "/mich/72/0367-01" ] }, { "cite": "75 A.L.R.2d 200", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1959, "opinion_index": 2 }, { "cite": "333 P.2d 82", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1959, "opinion_index": 2 }, { "cite": "166 Cal.App. 334", "category": "reporters:state", "reporter": "Cal. App.", "year": 1959, "opinion_index": 2 }, { "cite": "Ark. Code Ann. \u00a7 16-42-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "pin_cites": [ { "page": "(1987)" }, { "parenthetical": "b" }, { "parenthetical": "c" } ], "opinion_index": 2 }, { "cite": "719 S.W.2d 684", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1873676, 1873781 ], "year": 1987, "opinion_index": 2, "case_paths": [ "/ark/290/0329-01", "/ark/290/0261-01" ] }, { "cite": "290 Ark. 329", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873676 ], "weight": 2, "year": 1987, "opinion_index": 2, "case_paths": [ "/ark/290/0329-01" ] } ], "analysis": { "cardinality": 778, "char_count": 20041, "ocr_confidence": 0.907, "pagerank": { "raw": 1.2772071795502792e-07, "percentile": 0.6161303226558769 }, "sha256": "184edcbf1cb4482b3c5dd33ea4bf674ba34139846680f5fb9f1f1a25347df104", "simhash": "1:02eea3a66347947c", "word_count": 3261 }, "last_updated": "2023-07-14T21:22:33.473421+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Brown, J., concurs.", "Hays, Glaze, and Corbin, JJ., dissent.", "Hays and Corbin, JJ., join this dissent." ], "parties": [ "STATE of Arkansas v. Michael MILLS" ], "opinions": [ { "text": "David Newbern, Justice.\nThe State attempts to bring an interlocutory appeal from an evidentiary ruling. During the trial of the appellee, Michael Mills, for rape and carnal abuse Mills sought to introduce evidence that the alleged victim had falsely accused two other men of sex offenses against her. The State objected on the basis of the rape-shield law, Ark. Code Ann. \u00a7 lb-42-101 (1987), which precludes admitting evidence of \u201cprior sexual conduct\u201d on the part of an alleged rape victim. The Trial Court overruled the objection. The issue is whether this Court has jurisdiction to hear the appeal. We lack jurisdiction, and thus the appeal must be dismissed.\nAt an omnibus hearing Mills offered evidence of the alleged victim\u2019s allegations against others. The alleged victim admitted making the earlier allegations and said they were true. Both of the other men accused earlier testified at the hearing and denied the incidents. The alleged victim stated she informed the police of these earlier allegations when she accused Mills, but no criminal charges were filed against the other two men.\nAfter the hearing the Trial Court ruled that the evidence presented was not of \u201cprior sexual conduct\u201d as the term is used in the rape-shield law and thus it was admissible.\nJurisdiction\nSubsection (a) of \u00a7 16-42-101 defines \u201csexual conduct\u201d as \u201cdeviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined by \u00a7 5-14-101.\u201d Subsection (b) provides that in sex offense eases, \u201copinion evidence, reputation evidence, or evidence of specific instances of the victim\u2019s prior sexual conduct ... is not admissible by the defendant ... to attack the credibility of the victim, to prove consent or any other defense or for any other purpose.\u201d Subsection (c) permits a trial court to hold a hearing to determine, notwithstanding the provision of subsection (b), whether evidence of the victim\u2019s prior sexual conduct is so relevant that it should be admitted. Subsection (c)(3)(B) provides that if the prosecutor \u201cis satisfied that, the order [presumably the order of the trial court admitting the evidence] substantially prejudices the prosecution of the case, an interlocutory appeal on behalf of the State may be taken in accordance with Arkansas Rules of Criminal Procedure 36.10(a) and (c).\u201d\nThe Statute provides for an appeal by the State only where a trial court rules that the evidence proffered is of \u201cprior sexual conduct\u201d of the victim and then decides that the evidence should be admitted regardless of the rape-shield prohibition as it is both relevant to a fact issue and is more probative than prejudicial. If the ruling of the trial court is that the evidence is not of \u201cprior sexual conduct,\u201d as in this case, the Statute does not apply. That was our holding in West v. State, 290 Ark. 329, 719 S.W.2d 684 (1987). The State asks that we overrule that decision, but we have been given no convincing reason to do so. It was a correct interpretation of the Statute, giving literal and obvious meaning to the words used by the General Assembly.\nTrial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent abuse of that discretion. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990). There is no basis for pretrial review of that exercise of discretion, and this is not a ruling which is subject to interlocutory appeal pursuant to Ark. R. Crim. P. 36.10(a) and (c).\nWhen the question is whether evidence should be allowed, of prior false allegations of sex offenses by an alleged victim, a trial court finds itself in the position of having to decide a purely factual issue. If the previous allegations by the alleged victim are true, then the evidence is, in a sense, evidence of \u201cprior sexual conduct,\u201d although it is possibly not the harmful sort of evidence at which the rape-shield law is directed. If the previous allegations are false, the evidence of them is not of \u201cprior sexual conduct\u201d but is evidence of prior misconduct of the alleged victim which has a direct bearing upon the alleged victim\u2019s credibility, particularly in the circumstances before the court. The Trial Court in this case voiced, several times, objection to having to conduct a \u201cmini-trial,\u201d but it is obvious that it must be done in these circumstances.\nThe State rejects Mills\u2019s argument that there is no provision for an appeal where a court rules that the proffered evidence is not of \u201cprior sexual conduct\u201d by arguing that all rulings of a trial court made pursuant to the Statute should be subject to appellate review. It is argued that if a trial court erroneously finds that the evidence does not involve \u201cprior sexual conduct\u201d the ruling can not be corrected by appeal in the event of an acquittal. That is of course so, but it is true of the myriad other discretionary rulings a trial court must make.\nWhile, as a matter of policy it may be that all rulings of a trial court interpreting the rape-shield law should be subject to interlocutory review, it is clearly a policy not yet expressed or implemented in the Statute. If the ruling a trial court must make in this sort of case is special, like that prescribed in Subsection (c) and to be given special treatment, the General Assembly has not said so.\nIn the absence of a statutory or constitutional provision or a provision in a rule of this Court, appellate jurisdiction is lacking. Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989) (jurisdiction lacking because no provision found in criminal procedure rule); City of Little Rock v. Tibbett, 301 Ark. 376, 784 S.W.2d 163 (1990) (jurisdiction lacking because no provision in constitution or rule of criminal procedure). In Ellis v. State, 302 Ark. 597, 791 S.W.2d 370 (1990), a criminal defendant sought dismissal of charges on the basis that the evidence the State proposed to introduce against him was inadmissible. The State argued, and we agreed, there was no statutory basis for jurisdiction to hear an appeal. We said:\nThe state correctly points out that appeals are granted as a matter of statute. There is no right of appeal granted by the United States Constitution. Abney v. United States, 431 U.S. 651 (1977). Appealability is controlled by Ark. R. App. P. 2(a) which requires a final judgment or decree or one which, in effect, determines the action and prevents a judgment from which an appeal might be taken or discontinues the action.\nBurrow v. State, 301 Ark. 222, 783 S.W.2d 52 (1990), was a rape case in which the defendant wished to appeal from the Trial Court\u2019s decision, made pursuant to Subsection (c) of \u00a7 16-42-101, that he could not introduce evidence of prior sexual conduct of the victim. He argued he was being deprived of equal protection of the law because of the provision that the State could appeal but lack of a provision for appeal by the defendant. We held that the law was not unconstitutional, pointing out as a basis of the discrimination that the State could not appeal from an acquittal but that the defendant could appeal from a conviction on the basis of error in refusing to admit the evidence. There again, the appeal was dismissed because of lack of a provision for it in the Statute.\nOur rape-shield law is a product of the General Assembly, and until it sees fit to provide for interlocutory appeal by the State of a trial court\u2019s decision with respect to admitting evidence of prior false allegations made by an alleged victim, or until some other jurisdictional basis by rule or constitutional provision appears, we lack jurisdiction to hear such an appeal.\nAppeal dismissed.\nBrown, J., concurs.\nHays, Glaze, and Corbin, JJ., dissent.", "type": "majority", "author": "David Newbern, Justice." }, { "text": "Robert L. Brown, Justice,\nconcurring. I join the majority opinion but write to associate myself with one point made in Justice Glaze\u2019s dissenting opinion. Though the court agrees that West v. State, 290 Ark. 329, 719 S.W.2d 684 (1986) is still good law, the unfortunate statement in the opinion relating to sexual fantasies inducing some women to make false accusations about sexual attacks should be excised. The statement is archaic, and any suggestion that this court subscribes to that psychiatric point of view should be disparaged.", "type": "concurrence", "author": "Robert L. Brown, Justice," }, { "text": "Tom Glaze, Justice,\ndissenting. This case involves Arkansas\u2019s rape-shield statute \u2014 a statute designed to exclude a rape victim\u2019s irrelevant sexual history from being paraded before a jury. The four-member court\u2019s decision today emasculates the purpose and intent of that statute. In short, when a trial judge erroneously mislabels a victim\u2019s prior sexual conduct as merely admissible, impeachable evidence bearing on her earlier sexual allegations against others, the majority court holds the state cannot appeal that erroneous ruling to have it corrected. The majority court claims the General Assembly, in drafting and enacting this rape-shield statute, failed to provide for such an interlocutory appeal. I say this court badly misinterprets the statute, its intent, and its procedural appellate safeguards. Because of the significance of this case and its effect on future rape prosecutions, I will go into some detail why I disagree with the the majority opinion.\nMichael Lloyd Mills, a Pentecostal minister, was charged with rape and carnal abuse of the prosecutrix, who was twelve to fifteen years old at the time. During this period alleged by the state, the prosecutrix attended appellee\u2019s church. Pursuant to the rape-shield statute, Ark. Code Ann. \u00a7 16-42-101(1987), the state brings this interlocutory appeal from the trial court\u2019s pretrial hearing and ruling that the appellee could introduce evidence of the prosecutrix\u2019s prior sexual allegations against two other men and the men\u2019s denial of them. At the hearing, the prosecutrix admitted making the prior sexual allegations and reasserted the veracity of those allegations. The prosecutrix stated that she had told the police about these sexual allegations, but no criminal charges were ever filed against the two men.\nThe appellee first contends the state cannot appeal the trial court\u2019s evidentiary ruling because, under \u00a7 16-42-101(b) of the rape-shield statute, the judge determined the men\u2019s testimony did not involve the prosecutrix\u2019s prior sexual conduct with the two men, but instead involved only false sexual allegations against them which they have denied. Appellee argues the state could only bring an appeal if the trial judge had ruled appellee\u2019s proffered evidence could be characterized as prior sexual conduct rather than false sexual accusations, but, nevertheless, the judge still allowed such evidence to be introduced under provision \u00a7 lb-42-101(c) of the rape-shield statute. That provision essentially provides that notwithstanding a trial judge\u2019s finding that a defendant\u2019s proffered evidence bears on the victim\u2019s prior sexual conduct with the defendant or another person and is generally inadmissible, such evidence still may be introduced if the court determines (1) the proof is relevant to a fact in issue and (2) the probative value of the proof outweighs its inflammatory or prejudicial nature.\nAppellee\u2019s and this four-member court\u2019s interpretation of provision (c) is too restrictive and fails to recognize the overall intent of the rape-shield statute to permit the state, after conferring with the victim, to obtain an appellate decision on whether the trial court correctly ruled in admitting a defendant\u2019s proffered evidence as (1) not being prior sexual conduct or (2) being prior sexual conduct of the victim which the trial court ruled admissible. In short, under appellee\u2019s and the majority court\u2019s view of \u00a7 16-42-101(c), particularly 101(c)(2)(B), if the trial court erroneously decided a defendant\u2019s proffered evidence did not concern the victim\u2019s prior sexual conduct, the state can never test the court\u2019s ruling by either an interlocutory appeal or for that matter, by direct appeal after an acquittal had been entered.\nProvision 101(c)(2)(B) provides that, if the prosecuting attorney is satisfied that the trial court\u2019s order or ruling substantially prejudices the prosecution of the state\u2019s case, an interlocutory appeal may be taken by the state. Both the state and appellee agree the state can file an interlocutory appeal when the trial court finds the defendant\u2019s evidence includes the victim\u2019s prior sexual conduct, but the court still allows such evidence as relevant and probative under 101(c). But the state\u2019s case is also clearly prejudiced if a trial court, as in the instant case, erroneously allows the defendant\u2019s proffered testimony to impeach prior sexual allegations of the victim when that testimony actually bears on the victim\u2019s prior sexual conduct and is not relevant or otherwise admissible. In other words, if a trial court routinely but wrongly characterized evidence as not concerning the victim\u2019s prior sexual conduct, the state could never overturn the trial court\u2019s erroneous and prejudicial ruling. Such a construction works to render the interlocutory appeal provision in the rape-shield statute meaningless. In construing and harmonizing provisions (b) and (c) of the rape-shield statute, this court should conclude that a trial court\u2019s ruling under either of these provisions is subject to interlocutory appeal to test the correctness of such rulings.\nThe present case is a prime example of the harm that can arise if a trial court\u2019s erroneous ruling under provision (b) is allowed to stand without appellate review. In simple terms, the trial court misconstrued this court\u2019s decision in West v. State, 290 Ark. 329, 719 S.W.2d 684 (1987), and ruled two men could testify when such testimony in actuality concerns the victim\u2019s prior sexual conduct and would generally be excluded under the rape-shield law.\nBecause the trial judge wrongly determined that the men\u2019s testimony proffered by appellee did not concern the prosecutrix\u2019s prior sexual conduct, this court should hold the state\u2019s case was clearly prejudiced. The state thus would be entitled to challenge that erroneous ruling under \u00a7 16-42-101. In fact, such an appeal is the only way the state can correct the court\u2019s erroneous, prejudicial ruling. In my view, the General Assembly clearly intended to provide the state and rape victims with the right to appeal such rulings under the rape-shield law to assure their prior sexual conduct histories are not improperly allowed in a public trial. Because I would accept jurisdiction of this appeal, I now turn to the merits of this cause.\nAs already mentioned, the trial court erred in its ruling by misreading our West decision. And while the state argues this court should overrule this court\u2019s decision in West, I would point out that the facts there are significantly distinguishable from the ones now before this court. Unlike the situation here, the defense proffered that the prosecutrix in West would deny having made any prior accusations of sexual conduct involving other men. This court allowed three witnesses to testify that the alleged victim had made such prior accusations, thus permitting West to test the prosecutrix\u2019s credibility and raising possible doubt concerning her present charge against West. This court explained the prosecutrix\u2019s purported conduct was not sexual conduct as defined by law, and therefore was not excludable under the rape-shield law provisions. 290 Ark. at 340-A, 722 S.W.2d at 284 (1987). This court\u2019s holding in West was in accord with two out-of-state decisions it relied on where the prosecutrix in each case had made sexual accusations against other men, but later either said the allegations were lies or denied having made the allegations. See People v. Hurlburt, 166 Cal.App. 334, 333 P.2d 82, 75 A.L.R.2d 200 (1959); People v. Evans, 72 Mich. 367, 40 N.W. 473 (1888). I note that, since this court\u2019s decision in West, other jurisdictions have reached similar conclusions in attempting to balance the protection of the victim and the accused\u2019s right to present a defense. Clinehill v. Com., 368 S.E.2d 263 (Va. 1988). (The Virginia court cites nineteen jurisdictions that hold that evidence of prior false accusations is admissible to impeach the complaining witness\u2019 credibility.)\nI still agree that the victim\u2019s conduct in West, namely, making false accusations of sexual abuse, does not fall under the protection of the rape-shield statute. But in the present case, the prosecutrix related that two men had sexually abused her, and reaffirms, even now, that those abuses occurred. Thus, the prosecutrix has not put her credibility into issue and is entitled to the protection provided under the rape-shield statute. While discussed above, I re-emphasize that portion of the rape-shield statute, Ark. Code Ann. \u00a7 16-42-101 (b) (1987), that supports the state\u2019s argument and reads as follows:\nIn any criminal prosecution under \u00a7\u00a75-14-101 \u2014 5-14-110, ... opinion evidence, reputation evidence, or evidence of specific instances of the victim\u2019s prior sexual conduct with the defendant dr 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. (Emphasis added.)\nUnder \u00a7 16-42-110(a) of the rape-shield statute, sexual conduct is defined as meaning deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined by \u00a7 5-14-101. Again, I briefly add that, while I would hold evidence of the prosecutrix\u2019s prior sexual conduct in these circumstances may be excludable under the rape-shield statute, such evidence might still be admissible under other provisions of the law. See Ark. Code Ann. \u00a7 16-42-101 (c).\nIn conclusion, I wish to touch on two additional points. One, while I underscore this case is factually distinguishable from West, I am aware of obiter dictum in the court\u2019s opinion which reads that, if the prosecutrix admits having made prior statements involving sexual conduct with other persons but asserts them to be true, then the defense should be permitted to prove the statements are false. That situation was not before the court in West, nor was any authority cited in West to support such a proposition. If such logic is accepted as already discussed above, little would be left of the rape-shield statute since it could be easily circumvented by a defendant\u2019s or defendant\u2019s witness\u2019s simple denial to any prior sexual conduct in which a prosecutrix may have been involved. In my view, the dictum in West should be overruled by this court. Second, I note this court\u2019s earlier reference to Wigmore\u2019s treatise on this topic in West. Wigmore, Evidence, \u00a7 924(a). While I recognize that Wigmore is an eminent authority on the topic of evidence, I suggest that his statement, based on Freud\u2019s teachings, that some women and young girls have fantasies about being attacked by men is archaic and prejudicial. As with any other untruths, I would recognize that the reasons why some women might make false accusations against men are often complex. In any event, whatever the reason or cause might be, the answer or explanation does not lie in Professor Wigmore\u2019s archaic statement.\nFor the reasons stated above, I would accept jurisdiction of this appeal and correct the trial court\u2019s evidentiary ruling as discussed above.\nHays and Corbin, JJ., join this dissent.\nOne of the men was a teenager when the alleged sexual contact took place, but was twenty-one years old at the time of the pretrial hearing.\nNo in camera hearing was held by the trial court to determine the admissibility of these men\u2019s testimony as being otherwise relevant and probative under \u00a7 16-42-101 (c).", "type": "dissent", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Winston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellant.", "Jeff Rosenzweig, for appellee." ], "corrections": "", "head_matter": "STATE of Arkansas v. Michael MILLS\nCR 92-625\n844 S.W.2d 324\nSupreme Court of Arkansas\nOpinion delivered December 21, 1992\nWinston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellant.\nJeff Rosenzweig, for appellee." }, "file_name": "0363-01", "first_page_order": 387, "last_page_order": 396 }