{ "id": 1513784, "name": "Gregory SHORT v. STATE of Arkansas", "name_abbreviation": "Short v. State", "decision_date": "2002-06-27", "docket_number": "CR 01-1269", "first_page": "492", "last_page": "502", "citations": [ { "type": "official", "cite": "349 Ark. 492" }, { "type": "parallel", "cite": "79 S.W.3d 313" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 5-14-125", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2001, "pin_cites": [ { "page": "(a)(3)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7\u00a7 5-14-124", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "2001 Ark. Acts 1738", "category": "laws:leg_session", "reporter": "Ark. Acts", "opinion_index": 0 }, { "cite": "329 Ark. 596", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 236215 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/329/0596-01" ] }, { "cite": "270 Ark. 835", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709249 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0835-01" ] }, { "cite": "290 Ark. 417", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873681 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0417-01" ] }, { "cite": "972 S.W.2d 848", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11714252 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/sw2d/972/0848-01" ] }, { "cite": "316 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907763 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0489-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-42-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1999, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "325 Ark. 257", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369325 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0257-01" ] }, { "cite": "324 Ark. 354", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9160361 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/ark/324/0354-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-66-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "opinion_index": 0 }, { "cite": "325 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369145 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/325/0180-01" ] }, { "cite": "302 Ark. 593", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884273 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0593-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-73-104", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-2-204", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "318 Ark. 673", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455906 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "677" }, { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/ark/318/0673-01" ] }, { "cite": "348 Ark. 213", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 74163 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ark/348/0213-01" ] }, { "cite": "345 Ark. 307", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 939025 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "312" }, { "page": "843" } ], "opinion_index": 0, "case_paths": [ "/ark/345/0307-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 5-2-202", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "318 Ark. 550", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455986 ], "weight": 4, "year": 1994, "pin_cites": [ { "parenthetical": "construing Ark. Code Ann. \u00a7 5-14-103(a)(3) (Supp. 1993), later recodified at Ark. Code Ann. \u00a7 5-14-103(a)(4) (Repl. 1997) (superseded)" }, { "parenthetical": "construing Ark. Code Ann. \u00a7 5-14-103(a)(3) (Supp. 1993), later recodified at Ark. Code Ann. \u00a7 5-14-103(a)(4) (Repl. 1997) (superseded)" }, { "page": "558-59" }, { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/ark/318/0550-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-14-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1997, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "341 Ark. 633", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257759 ], "weight": 5, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/341/0633-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-2-203", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "year": 1997, "pin_cites": [ { "page": "(b)" }, { "parenthetical": "b" }, { "page": "360" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-14-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 6, "year": 1997, "pin_cites": [ { "page": "(a)(4)" }, { "page": "(a)(1)(C)(i)" }, { "page": "(a)(3)" }, { "page": "(a)(4)", "parenthetical": "superseded" }, { "page": "(a)(4)", "parenthetical": "superseded" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-14-108", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 4, "year": 1997, "pin_cites": [ { "page": "(a)(4)", "parenthetical": "repealed" }, { "page": "(a)(4)" }, { "page": "(a)(4)", "parenthetical": "repealed" }, { "page": "(a)(4)", "parenthetical": "repealed" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-14-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 16-42-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "b" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 828, "char_count": 21167, "ocr_confidence": 0.753, "pagerank": { "raw": 3.445225243631004e-07, "percentile": 0.8798715678018294 }, "sha256": "bcd4a6a0bcf95917c8a5bbfe5d77903e2d9a370c401193af80b126524ab439d4", "simhash": "1:de7740b0b00ffdc2", "word_count": 3563 }, "last_updated": "2023-07-14T19:52:02.317850+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Gregory SHORT v. STATE of Arkansas" ], "opinions": [ { "text": "Annabelle Clinton Imber, Justice.\nAppellant Gregory Short was convicted of first-degree sexual abuse in violation of Ark. Code Ann. \u00a7 5-14-108(a)(4) (Repl. 1997) (repealed). He raises two points on appeal: (1) The trial court erred in ruling that first-degree sexual abuse is a strict-liability crime; and (2) the trial court erred by excluding proffered testimony regarding the victim\u2019s sexual conduct. We disagree and affirm.\nThis appeal raises the issue of whether the State has the burden of proving a culpable mental state in connection with a charge of first-degree sexual abuse involving a victim under the age of fourteen. As the sufficiency of the evidence to support the conviction has not been challenged, we recite the facts only as they relate to the issues on appeal. Mr. Short was originally charged with raping a child less than fourteen years of age in violation of Ark. Code Ann. \u00a7 5-14-103(a)(4) (Repl. 1997) (superseded by Ark. Code Ann. \u00a7 5-14-103(a)(1)(C)(i) (Supp. 2001)). After the State agreed to reduce the charge to first-degree sexual abuse in violation of Ark. Code Ann. \u00a7 5-14-108(a)(4), Mr. Short waived his right to a trial by jury.\nAt the outset and before the State amended its original charge, Mr. Short moved, in limine, to allow testimony about the victim\u2019s alleged sexual conduct on the day of the offense in order to prove that he was reasonable in concluding that the youthful victim, A.L., was at least fourteen years old. Mr. Short was twenty-six years old on August 7, 2000, when he and a friend, Melvin Willfond, gave A.L. (age thirteen) and her friend, R.H. (age fifteen), a ride to register for the next school year. Mr. Short stated that he thought A.L. was fourteen or fifteen years old, and he denied having any sexual contact with her. A.L. testified that she was thirteen years old in August 2000 and that she told Mr. Short she wanted to have sex with him and, in fact, did have sexual contact with him. The trial court denied Mr. Short\u2019s motion in limine and excluded the proffered testimony about A.L.\u2019s sexual conduct.\nAt trial, after the close of the State\u2019s case-in-chief, Mr. Short moved for a directed verdict alleging that the State failed to meet its burden of proof. Specifically, he argued that the State failed to prove the element of mental culpability as required by Ark. Code Ann. \u00a7 5-2-203 (Repl. 1997). The trial court ruled that first-degree sexual abuse is a strict-liability offense and denied his directed-verdict motion. At the close of all the evidence, Mr. Short renewed his motion for directed verdict, which was again denied. The trial court found Mr. Short guilty of first-degree sexual abuse and sentenced him to 60 months probation conditioned upon serving 120 days in the Pope County Detention Center. Following the entry of judgment, Mr. Short filed a timely notice of appeal.\nI. First-Degree Sexual Abuse\nThe' first point on appeal involves an issue of statutory interpretation. We construe criminal statutes strictly, resolving any doubts in favor of the defendant. Hagar v. State, 341 Ark. 633 19 S.W.3d 16 (2000). We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Id. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Id.\nMr. Short was convicted of sexual abuse in the first degree in violation of section 5-14-108(a)(4) of the Arkansas Criminal Code. At the time the offense was committed, the statute provided that \u201c[a] person commits sexual abuse in the first degree if . . . [b]eing eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old.\u201d Ark. Code Ann. \u00a7 5-14-108(a)(4) (Repl. 1997) (repealed). As to offenses where the criminality of the conduct depends on the victim being less than fourteen, the chapter of the Arkansas Criminal Code that defines sexual offenses also provides as follows: \u201cWhen the criminality of conduct depends on a child being below the age of fourteen (14) years, it is no defense that the actor did not know the age of the child, or reasonably believed the child to be fourteen (14) years of age or older.\u201d Ark. Code Ann. \u00a7 5-14-102(b) (Repl. 1997).\nWhile this court has not specifically addressed the issue of whether first-degree sexual abuse in violation of section 5-14-108(a)(4) is a strict-liability offense, we have considered the mens rea requirement for the offense of statutory rape; that is, rape committed by engaging in sexual intercourse or deviate sexual activity with a person less than fourteen years of age. Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994) (construing Ark. Code Ann. \u00a7 5-14-103(a)(3) (Supp. 1993), later recodified at Ark. Code Ann. \u00a7 5-14-103(a)(4) (Repl. 1997) (superseded)). The language used in the statutory rape provision and in section 5-14-108(a)(4) is similar, and both offenses are subject to the defense restriction set forth in section 5 \u2014 14\u2014102(b) . Once again, we construe statutes relating to the same subject together and in harmony if possible. Hogar v. State, supra. The 1988 Supplemental Commentary to Ark. Code Ann. \u00a7 5-14-103 (Repl. 1995) notes that the rape statute \u201cnow imposes strict liability where the victim is less than 14 years of age.\u201d A strict-liability offense is \u201c[a] crime that does not require a mens rea element . . . .\u201d Black\u2019s Law Dictionary 378 (7th ed. 1999).\nIn Clay v. State, where the issue was whether joinder was proper for multiple counts of rape by force and statutory rape, we analyzed the different mens rea requirements for these crimes and concluded that the offense of statutory rape is a strict-liability crime:\nIn two of the cases the charge was rape, and the proof in those cases showed that the appellant had sexual intercourse by force. The intent necessary for conviction in these cases was that the appellant \u201cpurposely\u201d forced the victims to have sex with him. Ark. Code Ann. \u00a7\u00a7 5-2-202 & 5-14-103 (Repl. 1993). However, three of the charges were quite different as they involved rape by deviate sexual activity with persons less than fourteen years of age. These are \u201cstrict liability\u201d crimes. See Ark. Code Ann. Commentaries \u00a7 5-14-103(a)(3) (1989). In these cases the State does not have to prove that the accused \u201cpurposely\u201d had sex with a person under fourteen years of age. A person who has sexual intercourse or deviate sexual activity with one less than fourteen years of age is guilty of the crime, regardless of how old he or she thought the victim was, and regardless of whether there was consent. There are affirmative defenses, but it is up to the defendant to prove them. The point is that because the definitions of the different crimes require different culpable mental states, joinder in the case at bar did not show an overall proof of intent.\nClay v. State, 318 Ark. at 558-59, 886 S.W.2d at 613. Two more recent cases, while not directly addressing the issue of strict liability, have reaffirmed that knowledge of the victim\u2019s age is not an element of statutory rape. In connection with our statutory interpretation of the knowledge requirement for the offense of second-degree battery, this court explained: \u201cThe language of the statute is clear and unmistakable and differs significantly from statutes such as the rape statute which merely provide that the victim be a certain age and not that the defendant know what that age is.\u201d Sansevero v. State, 345 Ark. 307, 312, 45 S.W.3d 840, 843 (2001). Likewise, another recent decision involving a rape charge under section 5-14-103(a)(4) reiterated that:\n[i]t was no defense that Ridling did not know Kimberly\u2019s age, or that he reasonably believed Kimberly to be fourteen years of age or older. . . . Certainly, even if he had been apprised that she told the other men that she was over the age of fourteen, such knowledge would be of no benefit to his defense in light of \u00a7 5-14-102(b).\nRidling v. State, 348 Ark. 213, 221, 72 S.W.3d 466 (2002). In Miller v. State, we explained the underlying policy: \u201cOur public policy, as fixed by the General Assembly, is manifest that victims younger than age 14 are beneath the age of consent and cannot be willing accomplices to sexual intercourse.\u201d 318 Ark. 673, 677, 887 S.W.2d 280, 282 (1994).\nNotwithstanding the precedent established by our decisions in Clay, Sansevero, and Ridling, Mr. Short contends that first-degree sexual abuse is not a strict-liability offense because sections 5-2-203 and 5-2-204 require a culpable mental state \u2014 purposely, \u25a0knowingly, or recklessly \u2014 if the statute does not prescribe one. \u201cExcept as provided in \u00a7 5-2-204(2), if the statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly.\u201d Ark. Code Ann. \u00a7 5-2-203(b) (Repl. 1997). Section 5-2-204 provides in pertinent part:\n(b) A person does not commit an offense unless he acts with a culpable mental state with respect to each element of the offense that requires a culpable mental state.\n(c) However, a culpable mental state is not required if:\n(2) An offense defined by a statute not a part of this code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any element thereof.\nArk. Code Ann. \u00a7 5-2-204(b) & (c)(2) (Repl. 1997).\nThis court has applied section 5-2-203 (b) on three occasions to require a culpable mental state, or mens rea, where the statute did not specifically prescribe one. In 1990, section 5-2-203(b) was used to engraft a mens rea requirement onto Ark. Code Ann. \u00a7 5-73-104(a) (1987), a statute that criminalizes the possession of metal knuckles. State v. Setzer, 302 Ark. 593, 791 S.W.2d 365 (1990). Six years later, this court reaffirmed that section 5-73-104(a) was not a strict-liability crime, and that section 5-2-203(b) mandated a culpable mental state. Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). In that same year, we held that a statute criminalizing the operation of a gambling house, Ark. Code Ann. \u00a7 5-66-103 (Repl. 1993), was not unconstitutional as overbroad merely because it failed to specify a mens rea. McDougal v. State, 324 Ark. 354, 922 S.W.2d 323 (1996). In so holding, the McDougal court stated that \u201ceven though \u00a7 5-66-103 itself imposes no requirement that the offender have a culpable mental state, Ark. Code Ann. \u00a7 5-2-203 (b) (Repl. 1993) grafts such a requirement onto the statute . . . .\u201d Id. at 360, 922 S.W.2d at 326.\nThe decisions in Setzer, Yocum, and McDougal are nonetheless inapposite to the case now before us. The statutes at issue in those cases did not eliminate a culpable mental state as a defense; whereas, the statutory rape provision and section 5-14-108(a)(4) are subject to a specific statute that eliminates knowledge, or even a reasonable belief, of the victim\u2019s age as a defense. Ark. Code Ann. \u00a7 5-14-102(b). If this court were to accept Mr. Short\u2019s argument and hold that the State must introduce evidence of a defendant\u2019s knowledge of the victim\u2019s age in a prosecution for first-degree sexual abuse, such a holding would effectively circumvent section 5-14-102(b). Moreover, it would simply be absurd to graft a mens rea element of \u201cpurposeful\u201d or \u201cknowing\u201d onto the statutory rape provision or section 5-14-108(a)(4) when a defendant\u2019s knowledge of the victim\u2019s age cannot be a defense. Under such an interpretation of the statutes, the State would introduce evidence of a defendant\u2019s knowledge of the victim\u2019s age; whereas, the defendant would not be allowed to defend or rebut the State\u2019s proof because \u201cit is no defense that the actor did not know the age of the child.\u201d Ark. Code Ann. \u00a7 5-14-102(b). In short, how can a culpable mental state be relevant for the prosecution, but irrelevant for the defense? Likewise, it would be inconsistent to graft a \u201creckless\u201d mens rea onto the statutes, where even if a defendant \u201creasonably believed\u201d that the victim was fourteen, such a belief would still not be a defense to the crime. Adding any of the three culpable mental states onto section 5-14-108(a)(4) of the first-degree sexual abuse statute would lead to an absurd result. That we will not do. Citizens to Establish a Reform Party in Arkansas v. Priest, 325 Ark. 257, 926 S.W.2d 432 (1996). Accordingly, we hold that the trial court did not err in ruling that the State was not required to prove Mr. Short\u2019s knowledge of the victim\u2019s age in a prosecution for first-degree sexual abuse under Ark. Code Ann. \u00a7 5-14-108(a)(4) (Repl. 1997) (repealed).\nII. Exclusion of Testimony Regarding the Victim\u2019s Sexual Behavior\nFor his second point on appeal, Mr. Short argues that the trial court erred in excluding evidence of A.L.\u2019s sexual behavior and statements that occurred on the day of the offense. He claims first that the proffered evidence was not \u201cprior\u201d sexual conduct and, therefore, was not barred by the rape-shield statute. Ark. Code Ann. \u00a7 16-42-101(b) (Repl. 1999). This argument is without merit. The phrase \u201cprior sexual conduct\u201d does not have the narrow meaning suggested by Mr. Short. For purposes of the rape-shield statute, we have interpreted the phrase broadly enough to encompass sexual conduct that occurs prior to the trial. Laughlin v. State, 316 Ark. 489, 972 S.W.2d 848 (1994); Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986); Kemp v. State, 270 Ark. 835 (1980).\nIn a related argument, Mr. Short also suggests that the rape-shield statute should only apply to jury trials. We disagree. The purpose of the rape-shield statute is to shield victims of sexual offenses from the danger of public humiliation. See Graydon v. State, 329 Ark. 596, 953 S.W.2d 45 (1997). Even a bench trial is open to the public and is a matter of public record.\nFinally, Mr. Short claims the proffered evidence was relevant to support his \u201creasonable\u201d belief that the victim was fourteen years of age or older. We reject this proposition for the reasons already stated under the first point.\nAffirmed.\nThis section was repealed by 2001 Ark. Acts 1738. The present law addressing this type of criminal conduct appears in Ark. Code Ann. \u00a7\u00a7 5-14-124 to 5-14-127 (Supp. 2001). The corresponding offense would be the class B felony of second degree sexual assault. \u201cA person commits sexual assault in the second degree if the person . . . [b]eing eighteen (18) years of age or older, engages in sexual contact with the sex organs of another person, not the person\u2019s spouse, who is less than fourteen (14) years of age[.]\u201d Ark. Code Ann. \u00a7 5-14-125(a)(3) (Supp. 2001).\nThe rape statute in effect at the time of the crime provided in part: \u201cA person commits rape if he engages in sexual intercourse or deviate sexual activity with another person . . . Who is less than fourteen (14) years of age. It is an affirmative defense to prosecution under this subdivision (a)(4) that the actor was not more than two (2) years older than the victim[.]\u201d Ark. Code Ann. \u00a7 5-14-103(a)(4) (Repl. 1997) (superseded).\nThe concurring opinion also raises the question of whether the proffered evidence is \u201csexual conduct\u201d as that term is defined under the rape-shield statute. This point was not advanced by Mr. Short, so we are precluded from addressing the issue.", "type": "majority", "author": "Annabelle Clinton Imber, Justice." }, { "text": "Jim Hannah, Justice,\nconcurring. I concur with the majority\u2019s holding that first-degree sexual abuse under these conditions is a strict-liability crime, but I write to address the trial court\u2019s exclusion of the evidence of A.L.\u2019s suggestive behavior and statements from the day of the crime. Two points should be made on this issue. First, according to the trial court\u2019s order issued April 12, 2001, the trial court excluded this evidence because it was \u201cnot relevant and, therefore, not admissible.\u201d Although the trial court issued this order after Mr. Short filed a motion pursuant to the rape-shield statute\u2019s procedural requirements for admission of certain evidence, this order is unclear as to whether the evidence was excluded based on the protection of the rape-shield statute, or whether it was excluded under Ark. R. Evid. 401 merely because it was irrelevant to the issue of A.L.\u2019s age. The majority opinion addresses this issue by applying the rape-shield statute. However, it is not at all clear that the trial court ruled on this issue based on the rape-shield statute, and to assume as much is not warranted by the trial court\u2019s order.\nSecond, I do not believe that the rape-shield statute\u2019s exclusion of evidence of \u201cprior sexual conduct\u201d applies to this type of evidence. Mr. Short requested that the trial court allow him to present evidence of A.L.\u2019s sexually suggestive comments and actions on the day of and leading up to the incident to show that Mr. Short reasonably believed that A.L. was at least fourteen years old. The majority opinion implies that \u201cprior sexual conduct\u201d is equivalent to sexually suggestive behavior and statements other than those defined by the statutes because the opinion, and the parties themselves, speak of these behaviors as \u201cprior sexual conduct.\u201d Arkansas\u2019s Rape-Shield Statute, contained in Ark. Code Ann. \u00a7 16-42-101 (Repl. 1999), makes inadmissible\nopinion evidence, reputation evidence, or evidence of specific instances of the victim\u2019s prior sexual conduct with the defendant or any other person, evidence of a victim\u2019s prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegation. . . .\nArk. Code Ann. \u00a7 16-42-101 (b). The rape-shield statute defines \u201csexual conduct\u201d as \u201cdeviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined by \u00a7 5-14-101.\u201d Under Ark. Code Ann. \u00a7 5-14-101, these terms include some form of physical action and are defined as:\n(1) \u201cDeviate sexual activity\u201d means any act of sexual gratification involving:\n(A) The penetration, however slight, of the anus or mouth of one person by the penis of another person; or\n(B) The penetration, however slight, of the labia majora Or anus of one person by any body member or foreign instrument manipulated by another person;\n* * *\n(8) \u201cSexual contact\u201d means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of a person or the breast of a female;\n(9) \u201cSexual intercourse\u201d means penetration, however slight, of the labia majora by a penis;. . .\nIn this case, Mr. Short attempted to introduce evidence from the day in question that A.L. had made several comments to Mr. Short and Mr. Willfond about wanting to \u201close her virginity\u201d and wanting to have sex with either or both of them. The question then becomes whether this evidence involves \u201cevidence of the victim\u2019s prior sexual conduct\u201d as defined by the statutes, or whether it involves some other type of behavior. The majority attaches the term \u201csexual conduct\u201d to A.L.\u2019s actions here, but again, \u201csexual conduct\u201d under the rape-shield statute involves some form of physical touching as defined in Ark. Code Ann. \u00a7 5-14-101. As such, statements made by a person regarding wanting to engage in these types of conduct are not the same as actually engaging in the conduct itself.\nThis discussion is purely academic in this case, however, because I agree with the trial court\u2019s exclusion of this evidence on grounds of relevancy. A.L., due to her age, could not consent to engage in sexual relations with Mr. Short, and whether she spoke of her interest in doing so is of no import because this was a strict-liability crime. However, my concern with the majority opinion is prospective regarding how this case will be applied to other rape or sexual misconduct cases involving victims who are not minors. A possible application of this decision will be that an alleged victim\u2019s sexually suggestive comments and behavior, other than those defined as \u201csexual conduct\u201d in the rape-shield and related statutes, will be excluded improperly under the rape-shield statute as \u201csexual conduct.\u201d Whether this type of evidence could be excluded under another term in the statute or on grounds of relevancy is a separate question, and one not at issue here. However, this behavior is not \u201csexual conduct\u201d as it is defined under our statutes, and it should not be addressed under the rape-shield statute as such.", "type": "concurrence", "author": "Jim Hannah, Justice," } ], "attorneys": [ "James Dunham, for appellant.", "Mark Pryor, Att\u2019y Gen., by: Clayton K. Hodges, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Gregory SHORT v. STATE of Arkansas\nCR 01-1269\n79 S.W.3d 313\nSupreme Court of Arkansas\nOpinion delivered June 27, 2002\nJames Dunham, for appellant.\nMark Pryor, Att\u2019y Gen., by: Clayton K. Hodges, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0492-01", "first_page_order": 516, "last_page_order": 526 }