The opinion
Cite as 2020 Ark. App. 90
Reason: I attest to the accuracy
and integrity of this document ARKANSAS COURT OF APPEALS
Date: 2021-06-30 10:32:04
Foxit PhantomPDF Version:
9.7.5 DIVISION II
No. CR-19-533
Opinion Delivered: February 5, 2020
DAVID LEE WASHBURN, SR.
APPELLANT APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
V. [NO. 43CR-17-639]
STATE OF ARKANSAS HONORABLE SANDY HUCKABEE,
APPELLEE JUDGE
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant David Lee Washburn was convicted in the Lonoke County Circuit Court
of two counts of rape, two counts of sexual assault in the second degree, and one count of
incest. He was sentenced to an aggregate of fifty-three years’ imprisonment. He argues on
appeal that the trial court erred by prohibiting appellant from eliciting testimony concerning
the victim’s bias and motive to fabricate. We affirm.
The State charged appellant with rape, sexual assault, and incest following allegations
that appellant had sexual contact with his son. The State filed a motion in limine on
November 21, 2018, to exclude evidence of the victim’s prior sexual conduct. In the
motion, the State asserted that the victim was currently facing charges in juvenile court for
a sexual offense and that any mention of the allegations during appellant’s trial would be
prejudicial and of no probative value. The State further asserted that the evidence is
excluded by Arkansas Code Annotated section 16-42-1011. Appellant filed a response on
December 7 asking that the State’s motion be denied. It stated in pertinent part:
2. It would be typical for a jury hearing the evidence against Defendant in
this matter to assume that the victim was a virgin at the time of the incident. The
incidents set out in the attached Ward Police Department document would tend to
show that the victim has a history of being involved in sexual acts and sexual contact
with minor children.
3. A jury would be substantially more inclined to find Defendant guilty if
they believe the victim is a virgin and to punish Defendant more harshly, than if they
are aware of the victim’s having had other sexual incidents with other minor children.
The State filed a response on January 16, 2019, renewing its motion in limine to exclude
“any evidence of the victim’s prior sexual conduct or pending juvenile charges.” The court
held a hearing on the State’s motion on January 25. At the hearing, the State argued that
the evidence it was seeking to exclude had nothing to do with the current case, and it would
only prejudice the victim. The State further contended that appellant had made a confession
that “just corroborates the victim’s accounts of the events in question.” Defense counsel
responded that “while my client has confessed to a couple of things, this young man makes
more allegations than my client has confessed to. And those are things we think that he
made up to try to put himself in a dead position in the juvenile court.” The court took the
issue under advisement.
Appellant filed a motion on February 11 to admit evidence of acts of the victim. In
the motion, appellant asserted that the victim’s actions are admissible evidence unprotected
by Arkansas Code Annotated section 16-42-101. The State responded on February 15,
again asserting that appellant should be prohibited from introducing evidence of the victim’s
1
(Supp. 2019).
2
prior sexual conduct or pending juvenile charges. The court held a pretrial in-camera
hearing on February 19. At that time, defense counsel argued that the victim was a “serial
rapist of young children” and some of the “proof” shows that he lied to his victims to get
them to do what he wanted them to do. Counsel further argued that “those acts on the
part of the victim are not sexual conduct. This is criminal activity, rape, by this victim of
these young kids.” Counsel maintained that “the honesty and truthfulness of this victim are
at high issue.” The State responded that defense counsel is allowed to present evidence
about the victim’s honesty, trustworthiness, and character for lying, but not by introducing
evidence of the victim’s past sexual acts. As the hearing progressed, the following pertinent
colloquy took place:
DEFENSE COUNSEL: . . . If this young man has had sex with minors less than three years
his age and with a four-year-old, Judge, he’s a rapist. It is relevant
and I ask you to allow me to present this to the jury.
PROSECUTOR: I would tend to agree[] with defense counsel if his client hadn’t
confessed to raping his son. The jury is going to hear the defendant
saying, ‘I performed oral sex on my son twice.’ So defense
counsel’s theory here is that the victim made this up, lied, had been
violating other minors, and doing all this cover himself. The
defendant first denied all of that, but then comes in and says, ‘Yes,
I did it. What the victim is saying is the truth.’ So if he had denied
this, we’re still back to motive, credibility, did it happen. The jury
will hear from the defendant that it happened. So defense counsel
is trying to drag this victim through the mud, doing everything he
can to make him look bad to try to take their eyes off of what the
defendant has admitted to doing.
This is precisely what the rape shield statute covers. There has been
no motion to suppress filed for the defendant’s statement. We are
under the impression that defendant’s statement where he confesses
to rape is coming in. The jury will hear that. What is the relevance
of any prior allegations by the victim? Defense counsel does not
want to talk about the fact that the defendant admitted to rape.
3
DEFENSE COUNSEL: There are issues about whether there was sexual contact in the
shower. We absolutely deny that. There are issues about the age of
the victim. We say he was fifteen at the time. We admit that there
were two acts. The victim says there were more. Those are critical
issues. And if this victim is going to come in here and lie about
those things, for whatever reason including, maybe, that he is
getting a deal with the juvenile court, the jury deserves to know
that. Let’s tell the jury the truth and not try to hide what this young
man has done. He is a serial rapist.
THE COURT: Upon consideration of the Defendant’s Motion to Admit Evidence
of Acts of the Victim, the attachments filed to said motion,
Defendant’s Exhibits Nos. 1 and 2, marked for purposes of this in-
camera hearing, the Arkansas law, the case law, the arguments of
counsel, and all other matters and things before the Court, the
Court finds and determines that the proof which has been offered
by the defendant in this hearing is not relevant to a fact in issue and
the Court finds that the probative value of the offered proof, which
has been presented in this hearing, does not outweigh its
inflammatory or prejudicial nature; therefore, the Court finds that
pursuant to Arkansas Code Annotated § 16-42-101(c)(2), that the
offered proof is not relevant, nor does its probative value outweigh
its inflammatory or prejudicial nature; therefore, the Court denies
the defendant’s motion to admit evidence of acts of the victim for
the above reasons stated and that will be the order of the Court.
....
DEFENSE COUNSEL: Are you saying that I cannot cross-examine this serial rapist in the
trial? I can’t cross-examine him on these issues?
THE COURT: When the victim testifies, if you believe that a door has been
opened or there is some question you have concerning the victim’s
character or reputation for truthfulness or honesty, then approach
the bench and the Court will make a ruling as to that, at that time,
depending on your specific question. But as far as what is before
the Court today, on your motion to admit evidence of acts of the
victim, the Court is denying that motion, for the reasons stated
above. That’s the Court’s ruling today.
....
DEFENSE COUNSEL: Is your ruling that the rape shield law prohibits questions of a victim
about his criminal acts such as rape of a minor child? Are you
4
saying that the rape shield law protects that victim from acts like
that?
THE COURT: What I’m saying is that these acts may be admissible if the Court
finds that they are relevant and the probative value outweighs the
prejudicial nature. I do not find it’s relevant. I do not find its
probative value outweighs its inflammatory or prejudicial nature.
DEFENSE COUNSEL: So if a victim has raped minor children, that’s not relevant for the
jury’s consideration.
THE COURT: The question is the admissibility of this evidence of the acts of the
victim. That is what the Court is ruling on today. This is a 16-42-
101 hearing. It’s an in-camera hearing. I am denying your motion
based on what I have before me. Once again, if we commence at
trial and the victim testifies and you believe the door has been
opened, if you want to inquire of the victim and you [want] to ask
him questions regarding his previous sexual conduct other than
what the accusation is with the defendant, then approach the
bench.
DEFENSE COUNSEL: So criminal sexual acts, according to your ruling, are protected by
the rape shield law?
THE COURT: The law compels me to make an analysis on relevancy to these
charges against your client and probative value. I have made my
analysis regarding relevancy and probative value. Thus, I am ruling
based upon these charges which have been filed against your client
that I do not find that this other evidence or acts of the victim are
relevant or probative.
DEFENSE COUNSEL: For appeal purposes, I wish you would say whether or not this rape
shield law prohibits evidence of criminal sexual acts by the victim.
I’d like to know what your ruling is on that.
THE COURT: Well, I have ruled on the motion and that’s the ruling of the Court.
Anything additional from the State?
PROSECUTOR: Yes, Your Honor. Just to make sure we’re all clear, that means that
no evidence is going to be admissible through any other witnesses,
either; is that correct?
THE COURT: Correct.
5
Appellant’s jury trial took place on February 20. During the noon break, defense
counsel renewed his motion to admit evidence and alleged that the State opened the door
during voir dire by “stating two or three times what the jury would understand if the victim
waited a while to say anything about what happened between him and the defendant.” The
State contended that its statements were “just purely a hypothetical involving any given
victim of sexual assault and why they would not immediately report a crime.” Defense
counsel argued that the State was attempting to “imply to the jury” what happened in this
case. The court ruled that its previous ruling would stand and denied the motion. The
court found that the door had not been opened, and that the State’s questions were more
hypothetical in nature than concerning the facts of this case.
Appellant’s jury trial proceeded. The victim testified that appellant performed oral
sex on him as well as masturbated him on several occasions. During the trial, a video of
appellant’s October 27, 2017 interview was played for the jury. In that interview, appellant
admitted that he lied about what he did to the victim. He stated that he performed oral sex
on the victim twice, when the victim was fifteen and sixteen years old, and “finished him
off by hand.” He also stated that the victim “jacked [him] off” once. The State made an
oral motion for nolle prosequi of one count of rape that alleged the victim was under
fourteen at the time; the court granted the motion. The jury found appellant guilty of two
counts of rape, two counts of sexual assault in the second degree, and incest.
During the sentencing phase, Amanda Gassman, the victim’s stepmother, testified
that the victim had to have counseling. She said that the victim was always “so angry and
aggressive, but as time has gone on without seeing his dad, his is not so angry.” Defense
6
counsel asked to approach because he wanted to question her about the criminal charges
against the victim. According to counsel, “based on what she said, it is appropriate to show
that he has other reasons to be in counseling.” The court found that the door had not been
opened and denied the request.
Appellant was sentenced to twenty years’ imprisonment for each of the rape
convictions, five years’ imprisonment for each of the sexual-assault-in-the-second-degree
convictions, and three years’ imprisonment for the incest conviction. The sentences were
to run consecutive to each other. The sentencing order was filed on February 21. Appellant
filed a notice of appeal on March 14. This appeal followed.
Appellant argues on appeal that the trial court erred by prohibiting appellant from
eliciting testimony concerning the victim’s bias and motive to fabricate. More specifically,
appellant contends that the trial court: (1) abused its discretion by denying appellant’s motion
to admit evidence of acts or the victim, (2) deprived him of his constitutional rights by
preventing him from presenting a complete defense, (3) abused its discretion by failing to
modify its ruling after the State opened the door to appellant’s evidence, and (4) erred to
the extent it concluded that the rape-shield law was applicable to the victim’s crimes.
Under our rape-shield law, section 16-42-101, evidence of a victim’s 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.2 The exception is where the trial
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
2
Turner v. State, 355 Ark. 541, 141 S.W.3d 352 (2004).
7
nature.3 The statute’s purpose 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.4
Accordingly, the trial court is vested with a great deal of discretion in determining whether
the evidence is relevant, and we will not overturn the trial court’s decision unless it
constituted clear error or a manifest abuse of discretion.5
In cases involving the rape of a minor, our supreme court has uniformly and
consistently excluded evidence of the minor’s prior sexual activity, because in those cases
the only two issues to be determined are the fact of the occurrence of the prohibited activity
and the age of the minor.6 Anything not pertaining to one of those two issues is not relevant
in cases involving the rape of a minor.7
Appellant attempted to introduce evidence that the victim was facing rape and/or
sexual assault charges himself in juvenile court. The court conducted an in-camera hearing,
where it listened to the arguments and allowed appellant to proffer the evidence which he
wished to admit. The court found that the evidence concerning the victim’s juvenile
charges was not relevant to the issue of whether appellant was guilty of the charges against
3
Id.
4
Id.
5
Id.
6
See, e.g., Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004); Turner, supra;
M.M. v. State, 350 Ark. 328, 88 S.W.3d 406 (2002); Ridling v. State, 348 Ark. 213, 72
S.W.3d 466 (2002).
7
See State v. Townsend, 366 Ark. 152, 233 S.W.3d 680 (2006).
8
him. The court also found that any probative value of the evidence was substantially
outweighed by the prejudicial effect it would have on the jury.
Under these circumstances, we cannot say that the trial court abused its discretion.
We agree that any probative value is small, given that appellant confessed to the charges for
which he was convicted. We further agree that any probative value does not outweigh the
obvious prejudicial or inflammatory effect of the evidence. Appellant also contends that
“the trial court could have limited the subject matter of the testimony so as to reduce any
risk of prejudice while still affording Appellant his fundamental right to cross-examine the
witness regarding potential bias.” Appellant never asked the court to consider limiting the
subject matter of the testimony. Thus, we do not consider it on appeal.
Appellant argues for the first time on appeal that the court’s ruling deprived him of
his constitutional rights by preventing him from presenting a complete defense. We will
not consider arguments made for the first time on appeal, even constitutional ones. 8
Next, appellant argues that the trial court abused its discretion by failing to modify
its ruling after the State had opened the door to appellant’s evidence. We review evidentiary
rulings regarding the admissibility of evidence under an abuse-of-discretion standard, and
we do not reverse absent a manifest abuse of that discretion and a showing of prejudice.9
Even if otherwise inadmissible, when a party invites discussion of a certain subject, he or
8
A.J.A. v. State, 2019 Ark. App. 464, 588 S.W.3d 92.
9
Williams v. State, 2015 Ark. App. 245, 459 S.W.3d 814.
9
she opens the door to a line of questioning by the opposing party so that the opposing party
may “fight fire with fire.”10
In the pretrial hearing, the court ruled that appellant could not introduce evidence
of the victim’s pending juvenile charges. However, the court stated that the admissibility
of the evidence could be addressed again if appellant believed the door had been opened for
such evidence. Defense counsel claimed that the door had been opened twice during
appellant’s trial: during the State’s voir dire and during Gassman’s testimony at the
sentencing phase. The court found that the door had not been opened in either instance,
and it denied appellant’s request to introduce the evidence. Based on the record before us,
there is no indication that the State opened the door for the prohibited evidence. Thus, we
hold that the court did not abuse its discretion by denying appellant’s request to introduce
the evidence.
Finally, appellant argues that the court erred to the extent it concluded that the rape-
shield law was applicable to the victim’s crimes. Appellant concedes that it is unclear if the
trial court made such a ruling. Although the court never expressly stated that the evidence
was protected by the rape-shield law, it did weigh the relevance and probative value of the
evidence as required by the statute. The court’s actions were appropriate under the
circumstances of this case and there was no abuse of discretion. Appellant confessed to the
acts for which he was convicted. There was no reason for the victim’s juvenile charges to
come before the jury, as it had no bearing on appellant’s guilt. Accordingly, we affirm.
Affirmed.
10
Id.
10
VIRDEN and SWITZER, JJ., agree.
Ben Motal, for appellant.
Leslie Rutledge, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.
11