dissenting. I disagree with the majority view. The application of the Arkansas Rape Shield Statute is not the issue. At pretrial hearing the trial court held that the appellant could testify to alleged prior sexual conduct by the prosecutrix. As the majority opinion observes, the trial court is vested with wide discretion in ruling whether allegations of prior sexual conduct by a prosecuting witness are relevant, and we do not overturn its decision unless it was clearly erroneous. Houston v. State, 266 Ark. 257, 582 S.W. 2d 958 (1979).
At trial the appellant was allowed to testify to the identical sexual acts between himself and the prosecutrix that Tommy Tyler claimed to have witnessed but was precluded from corroborating. Relying on the bias or ulterior motive exception to the Rape Shield Statute, first recognized in Marion v. State, 267 Ark. 345, 590 S.W. 2d 288 (1979), the trial judge ruled the appellant’s testimony of prior sexual acts was relevant and its probative value outweighed its inflammatory or prejudicial nature. The proffered testimony of Tommy Tyler corroborated the defendant’s testimony and added no additional evidence whatsoever, certainly nothing of an inflammatory or prejudicial nature. Admittedly, Tyler’s failure to identify the prosecutrix in chambers cast doubt upon his credibility, but that issue was for the jury to weigh and decide. It had been more than a year and a half since the witness had seen the prosecutrix according to his testimony and there was testimony that her hair style and coloring had changed. Issues of credibility are to be resolved by the jury having the benefit of direct and cross examination and not by the trial judge in chambers. Identification of persons, whether an accused or another witness, involves considerations of time, changed appearance, recollection, previous acquaintance, duration of the association and numerous other aspects. But these considerations affect the weight of the evidence, not its admissibility. Warren v. State, 272 Ark. 231, 613 S.W. 2d 97 (1981); U.S. v. Evans, 484 F. 2d 1178, 1181-1182 (2d Cir. 1973); Auerbach v. United States, 136 F. 2d 882 (6th Cir. 1943).
In this context, Professor Morgan explains the test of admissibility as follows:
The court may not refuse to permit a witness to testify that he perceived a material matter merely because the court believes the witness to be obviously mistaken or obviously falsifying. It is only when no reasonable trier of fact could believe that the witness perceived what he claims to have perceived that the court may reject the testimony. Not improbability but impossibility is the test. . . . [w]here he swears that he has personal knowledge of a matter which is merely very unlikely that he was a percipient witness, his testimony will stand and may be credited by the trier. . . . E. Morgan, Basic Problems of Evidence, pp. 59-60 (4th ed. 1961), quoted in 3 Weinstein, Evidence 602[02] (1981).
This record reflects a patent inconsistency in the rulings of the trial court: Under the Arkansas Rape Shield Statute, the trial judge found the same prior sexual act to be relevant and admissible as to the testimony of the defendant and irrelevant as to his only corroborating witness, based solely on the answer of the witness that he didn’t see the prosecutrix in chambers when in fact she was one of two women present.
When prior sexual acts are found to be relevant and admissible under the Rape Shield Statute, that relevance extends to all witnesses to such acts, and the witnesses’s credibility is to be determined by the jury. Unless the testimony of other witnesses to the alleged prior sexual acts would be unduly inflammatory or prejudicial, it should be received. Tyler’s testimony should not have been excluded simply because his identification was doubtful. The fact that it was deprived the defendant of the opportunity to offer material evidence which the jury might have believed.
I would reverse.
Justice Hickman joins in this dissent.