Sweeten v. State
Sweeten v. State
Opinion of the Court
N. MARK KLAPPENBACH, Judge *577Michael Lee Sweeten appeals his convictions in the Miller County Circuit Court of three counts of second-degree sexual assault. On appeal, he argues that the circuit court erred in excluding certain evidence under the rape-shield statute and erred in permitting a forensic interviewer to testify. We affirm.
Appellant was charged with one count of rape and two counts of sexual assault against victim A.G. and with two counts of sexual assault against victim H.G. At the jury trial, fifteen-year-old A.G. testified that appellant sexually assaulted and raped her when she was eleven or twelve years old. Nineteen-year-old H.G. testified that appellant had sexually assaulted her twice when she was about six years old. Appellant was ultimately convicted of one count of sexual assault involving A.G. and two counts involving H.G.
Prior to trial, appellant filed a motion to admit evidence of A.G.'s prior sexual conduct. He requested permission from the court to cross-examine A.G. regarding sexual assaults perpetrated against her by two other men as a way to show an alternative source for her knowledge of sexual matters. He said that A.G. was a victim in a separate case the court had heard "back in the fall." The State argued that this type of evidence violates the rape-shield statute. The circuit court agreed with the State and denied appellant's motion.
The rape-shield statute, codified at Arkansas Code Annotated section 16-42-101 (Repl. 1999), provides that 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. Woodall v. State ,
Appellant now argues that the circuit court erred in failing to consider the five factors adopted by the supreme court for determining whether to admit evidence of a child's prior sexual conduct for the limited purpose of proving an alternative source for sexual knowledge. See State v. Townsend ,
(1) that the prior act clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a material issue; (4) that the evidence is necessary to the defendant's case; (5) that the probative value of the evidence outweighs its prejudicial effect.
See Woodall , supra ; Townsend , supra . Appellant contends that all five factors have been satisfied.
The State asserts that appellant's argument is not preserved for review because he failed to proffer any testimony *578at the in camera hearing. We agree. The admissibility of evidence otherwise barred by the rape-shield statute must be determined in a pretrial in camera hearing as prescribed by Arkansas Code Annotated section 16-42-101(a) - (c). Dicandia v. State ,
After reporting the allegations to police, A.G. and H.G. were interviewed by a forensic interviewer at the Texarkana Children's Advocacy Center. Missy Davidson, a program director, therapist, and forensic interviewer at the center, testified on behalf of the State, although she did not conduct the interviews in this case. Prior to her testimony, appellant informed the court that he would "be on the lookout for if her opinion is to the veracity or credibility of any of the witnesses." The court agreed that the witness could not give an opinion about whether someone was telling the truth. After Davidson testified about her educational background and training, the State moved to recognize her as an expert in the field of forensic interviewing. Appellant objected, arguing that "under 401, 403, and 702, this type of testimony is not helpful to the jury." The court overruled the objection and recognized Davidson as an expert witness. Appellant later objected during Davidson's testimony about what a forensic interviewer looks for in an interview. He argued that the testimony went to veracity. The court overruled the objection, and Davidson testified that they look for consistency within the statement and sensory details.
Appellant now argues that Davidson's testimony taken as a whole was, in essence, an expert witness telling the jury that a witness is telling the truth. We disagree. As appellant acknowledges, Davidson testified about how interviews in general are conducted and about common characteristics of child sex-abuse victims. He admits that Davidson did not specifically testify that the victims were credible, but he claims that the State was able to suggest as much by using her testimony to bolster that of the victims and by referencing her testimony in its closing argument.
The supreme court has said that it is erroneous for the circuit court to permit an expert, in effect, to testify that the victim of a crime is telling the truth. Hill v. State ,
Affirmed.
Reference
- Full Case Name
- Michael Lee SWEETEN v. STATE of Arkansas
- Cited By
- 4 cases
- Status
- Published