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SUPREME COURT OF ARKANSAS
No. CR-17-250
Opinion Delivered: November 2, 2017
STATE OF ARKANSAS APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
FOURTH DIVISION
V. [NO. 60CR-15-2855]
MIGUEL COSSIO HONORABLE HERBERT
APPELLEE WRIGHT, JUDGE
REVERSED AND REMANDED.
COURTNEY HUDSON GOODSON, Associate Justice
The State of Arkansas brings this interlocutory appeal from the Pulaski County
Circuit Court’s order ruling that testimony regarding the victim’s prior sexual conduct with
a third party would be admissible pursuant to the rape-shield statute, Arkansas Code
Annotated section 16-42-101(c) (Repl. 1999), and Arkansas Rule of Evidence 411(c)(2)(C)
(2016). For reversal, the State argues that the circuit court erred by finding that this evidence
was relevant where appellee Miguel Cossio was charged with raping the victim while she
was physically helpless. Because the circuit court committed a manifest abuse of discretion,
we reverse and remand.
On September 10, 2015, the State charged Cossio with the rape of R.S. in violation
of Arkansas Code Annotated section 5-14-103(a)(2)(A) (Repl. 2013), which provides that
a person commits rape if he or she engages in sexual intercourse or deviate sexual activity
with another person who is incapable of consent because he or she is physically helpless.
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“Physically helpless” means that a person is unconscious, physically unable to communicate
a lack of consent, or rendered unaware that a sexual act is occurring. Ark. Code Ann. § 5-
14-101(7)(A)−(C) (Repl. 2013). The felony information alleged that the offense occurred
on July 10, 2015.
Cossio filed a pretrial motion to admit evidence of prior sexual conduct of the victim,
asserting that the victim had made similar allegations against others in the past and that this
evidence was essential to demonstrate her motive and character for truthfulness. Cossio also
filed a notice of his intent to raise the affirmative defense of mistake of mental condition of
the victim.
A hearing on these motions was held on January 9, 2017. R.S. testified that she was
employed as an exotic dancer in July 2015. On the evening of July 8, 2015, approximately
twenty-four hours before the alleged rape occurred, R.S. indicated that Cossio and his
acquaintance, Shauna Harrelson, had come over to R.S.’s apartment because Harrelson was
interested in becoming an exotic dancer and wanted R.S. to teach her some dance
techniques.1 According to R.S., the three of them drank alcohol, Harrelson tried on a few
of R.S.’s outfits, and the two women gave each other lap dances. R.S. stated that Cossio
was not involved in the lap dances but that she later learned that he had taken pictures of
them with her phone. These pictures were also introduced at the hearing. R.S. testified
that no other sexual activity occurred between her and Harrelson on the evening of July 8,
and she further indicated that she did not have any sexual contact with Cossio that night.
1
Shauna Harrelson was charged as a codefendant in the case but entered a negotiated
plea of guilty.
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R.S. stated that the next day, on July 9, 2015, she had a cast on her arm and stitches
removed, and she indicated that she had taken oxycodone beforehand as prescribed by her
doctor. Later that evening, Harrelson and Cossio again visited R.S.’s apartment. R.S.
explained that Harrelson had only wanted to “drink and hang out” on the night of July 9,
and R.S. stated that she did not remember giving anyone a lap dance that night. R.S. agreed
that she did not remember many details from that evening and that she had told police that
she had passed out from alcohol and from not enough sleep the night before.
Cossio argued that the evidence of what had occurred at R.S.’s apartment on the
evening prior to the rape was relevant to his state of mind on the night of the rape, as well
as to R.S.’s credibility. The State, however, contended that this evidence was not relevant
to the offense as charged and that it was also more prejudicial than probative.
The circuit court took the issue under advisement at the conclusion of the hearing
and subsequently entered an order on January 19, 2017. The court stated that the pictures
of R.S. and Harrelson from the evening of July 8, 2015, would not be admissible under the
rape-shield statute and Arkansas Rule of Evidence 411. However, the court ruled that
Cossio would be permitted to elicit testimony concerning the events of that evening “for
the limited purpose of showing the prelude to the night of the alleged activity, as part of the
res gestae of the case.” Although the circuit court stated that Cossio could not use this
evidence to demonstrate that the victim consented to the charged crime, the court found
that the events of July 8, 2015, were “essential to show the relationship between the parties”
and that the probative value of this evidence outweighed its inflammatory or prejudicial
nature. The court further ruled that Cossio would not be permitted to raise the affirmative
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defense of mistake of mental condition because consent was not a defense to the rape of a
physically helpless victim. The State filed a timely notice of interlocutory appeal from the
circuit court’s order on January 27, 2017.
We first address whether we have jurisdiction to hear the State’s appeal in this case.
Unlike that of a criminal defendant, the State’s right to appeal is limited to the provisions of
Rule 3 of the Arkansas Rules of Appellate Procedure–Criminal. State v. Colvin, 2013 Ark.
203, 427 S.W.3d 635. Pursuant to Rule 3(a)(3), the State may take an interlocutory appeal
from a pretrial order granting a motion to allow evidence of the victim’s prior sexual
conduct. Ark. R. App. P.–Crim. 3(a)(3) (2017). Although we will typically consider an
appeal by the State only when the correct and uniform administration of the criminal law
requires review by this court, an appeal from an adverse ruling under the rape-shield statute
is automatically appealable without such an analysis. Ark. R. App. P.–Crim. 3(d); State v.
Parker, 2010 Ark. 173.
Regarding the merits of the appeal, the State contends that the circuit court erred by
ruling that evidence of R.S.’s sexual conduct from the day prior to the alleged rape would
be admissible at Cossio’s trial. Pursuant to the rape-shield statute, Arkansas Code Annotated
section 16-42-101(b), as well as Arkansas Rule of Evidence 411(b), “opinion evidence,
reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct
with the defendant or 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.” However, the circuit court has discretion to admit
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this sort of evidence if, after a pretrial hearing, the court finds that the evidence is relevant
to prove a fact in issue and that the probative value of the evidence outweighs its
inflammatory or prejudicial nature. Ark. Code Ann. § 16-42-101(c); Ark. R. Evid. 411(c).
The purpose of the rape-shield statute is to shield victims of rape or sexual abuse
from the humiliation of having their sexual conduct, unrelated to the pending charges,
paraded before the jury and the public when such conduct is irrelevant to the defendant’s
guilt. State v. Parker, supra. The circuit court is vested with a great deal of discretion in
determining whether evidence is relevant, and we will not reverse the circuit court’s
decision as to the admissibility of rape-shield evidence unless its ruling constitutes clear error
or a manifest abuse of discretion. Vance v. State, 2011 Ark. 392, 384 S.W.3d 515.
As the State asserts, we have held that when consent is not an issue, the victim’s
sexual conduct with a third person is entirely collateral and therefore not relevant. Vance,
supra; Parker, supra. The State argues that because Cossio is charged with raping R.S. while
she was physically helpless and incapable of consent, R.S.’s sexual conduct the night before
the rape is “wholly irrelevant” and prejudicial to the prosecution of this case.
While the circuit court correctly recognized that Cossio could not use this evidence
to show that R.S. consented to the rape, the court nonetheless found that it was admissible
as part of the res gestae of the case and that it was essential to show the relationship between
the parties. We have described the res gestae of a criminal offense as follows:
Circumstances so nearly related to the main fact under consideration as to illustrate
its character and the state of mind, sentiment and disposition of the actor are parts of
the res gestae, which embraces not only the actual facts of the transaction and the
circumstances surrounding it, but also matters immediately antecedent to and having
a direct causal connection with it, as well as acts immediately following it and so
closely connected with it as to form in reality part of the occurrence.
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Turner v. State, 258 Ark. 425, 434, 527 S.W.2d 579, 586 (1975). Although evidence of
other crimes by the accused is generally not admissible, we have held that under the res gestae
exception, the State is entitled to introduce evidence showing all circumstances that explain
the charged act, show a motive for acting, or illustrate the accused’s state of mind. Gaines
v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). Thus, all of the circumstances connected with
a particular crime may be shown to put the jury in possession of the entire transaction, and
where separate incidents comprise one continuing criminal episode or are intermingled with
the crime actually charged, the evidence is admissible. Id.
Cossio argues that evidence of R.S.’s sexual conduct on July 8, 2015, was part of the
res gestae of the offense because the events of July 9–10, 2015, the night of the alleged rape,
were a continuation of, and causally related to, the events that took place the night before
the alleged rape. Cossio points to R.S.’s testimony that Harrelson wanted to come over on
July 9 to “hang out and drink more.”
We disagree that evidence of R.S.’s sexual conduct with Harrelson on July 8, 2015,
was relevant and admissible under the rape-shield statute to show the res gestae of the charged
offense. R.S. testified that Harrelson came over on July 8 to learn how to be an exotic
dancer and that the sexual conduct on that night consisted only of lap dances between R.S.
and Harrelson. There was no sexual intercourse on July 8, and there was no evidence that
Cossio was directly engaged in any of the sexual conduct on that evening. After the events
on the evening of July 8, Cossio and Harrelson left R.S.’s apartment. The next evening,
Cossio and Harrelson returned to R.S.’s apartment for the purpose of drinking and
socializing. R.S. stated that she did not remember giving anyone lap dances on the evening
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of July 9. The two social gatherings did not comprise a continuing sequence of events, nor
was R.S.’s prior sexual conduct on July 8 intermingled or contemporaneous with the alleged
rape by Cossio the next night. Thus, the circuit court clearly erred in finding that evidence
of R.S.’s prior sexual conduct was relevant and admissible as part of the res gestae of the case.
To the extent that the events on the evening of July 8 were relevant to show the
relationship between the parties or why Cossio and Harrelson were at R.S.’s apartment the
next day, only evidence specifically related to the prior sexual conduct of R.S. would be
inadmissible pursuant to the rape-shield statute. See Ark. Code Ann. § 16-42-101(b); Ark.
R. Evid. 411(b).2 Similarly, although Cossio argues that evidence demonstrating that R.S.
had also passed out on the night of July 8 is relevant to whether she was unconscious during
the alleged rape the next evening, the rape-shield statute bars only evidence of R.S.’s sexual
conduct. Cossio has simply failed to demonstrate how evidence of R.S.’s sexual conduct
with Harrelson on the day before the offense is probative to whether Cossio raped R.S. the
next evening while she was physically helpless and incapable of consent. Furthermore, to
the extent that this evidence has any relevance to the issues in this case, its probative value
would be substantially outweighed by the danger of unfair prejudice. Accordingly, we
2
The dissent would affirm the admission of this evidence on the basis that the lap
dances did not constitute “sexual conduct” under the rape-shield statute because there was
no proof of sexual gratification. The circuit court rejected Cossio’s argument that the lap
dances did not amount to sexual conduct, and Cossio does not challenge this finding on
appeal. Further, we have held that sexual gratification is rarely capable of proof by direct
evidence and must instead be inferred from the circumstances. Farmer v. State, 341 Ark.
220, 15 S.W.3d 674 (2000). Even assuming, as the dissent argues, that there was no
indication that R.S. and Harrelson performed the lap dances for the purposes of their own
sexual gratification, the circuit court could have inferred from the circumstances in this case
that the dances were performed for the purpose of sexually gratifying Cossio, who was
watching and taking photographs.
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conclude that the circuit court abused its discretion in admitting evidence of R.S.’s prior
sexual conduct, and we reverse and remand.
Reversed and remanded.
BAKER and HART, JJ., dissent.
KAREN R. BAKER, Justice, dissenting. I dissent from the majority’s opinion
because the State failed to argue below that R.S.’s July 8, 2015 lap dances were prior sexual
conduct pursuant to Arkansas Code Annotated section 16-42-101(a). Therefore, I would
affirm the circuit court.
The State’s appeal in this matter is brought pursuant to Rule 3 of the Arkansas Rules
of Appellate Procedure – Criminal, which provides, in pertinent part, that an interlocutory
appeal on behalf of the State may be taken only from a pretrial order in a felony prosecution
that grants a motion under Arkansas Rule of Evidence 411(c) to allow evidence of the
victim’s prior sexual conduct. Here, in granting Cossio’s motion to admit evidence
regarding the victim’s prior sexual conduct, the circuit court held:
Notwithstanding Rule 411’s exclusion on “rape shield” material, the Defendant will
be permitted to elicit testimony about that events of the first evening under Rule
411(c)(2)(C), for the limited purpose of showing the prelude to the night of the
alleged activity, as part of the res gestae of the case. The court finds that the events
of the night before are essential to show the relationship between the parties and that
that probative value outweighs its inflammatory or prejudicial nature.
This ruling addresses whether the evidence is relevant and admissible as part of the res gestae
of the case, notwithstanding Rule 411. Nonetheless, the circuit court clearly found that the
evidence was not excluded by either Rule 411 or the rape-shield statute. Thus, the narrow
question presented in this appeal is whether the circuit court erred in finding that the
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evidence was not excluded by either Rule 411 or the rape-shield statute, Arkansas Code
Annotated section 16-42-101(a).
Pursuant to the rape-shield statute, “‘sexual conduct’ means deviate sexual activity,
sexual contact, or sexual intercourse, as those terms are defined by § 5-14-101.” Ark. Code
Ann. § 5-14-101(10) provides: “Sexual contact” means any act of sexual gratification
involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of
a person or the breast of a female.
Prior to analyzing the issue before the court, I must note that arguments not raised
below will not be addressed for the first time on appeal. Likewise, parties cannot change the
grounds for an objection on appeal, but are bound by the scope and nature of their
objections as presented at trial. See Sylvester v. State, 2016 Ark. 136, 5, 489 S.W.3d 146, 149.
In this case, at the hearing, the State did not contend that the lap dances themselves were
sexual conduct pursuant to the rape-shield statute. Rather, the State contended “at least
one of the pictures falls under Rape Shield. It’s sexual contact[,]” and asserted that the lap
dances were inadmissible based on relevancy. The State did not contend that the dances
were sexual conduct pursuant to the rape-shield statute. Further, it is the State’s burden on
appeal to demonstrate that the circuit court erred. The State has failed to demonstrate error.
Based on the record before the court, the State has to establish that the July 8, 2015 lap
dances were prior sexual conduct under the rape-shield statute. With regard to the
admissibility and questioning regarding the July 8, 2015 lap dances, the following colloquy
occurred at the hearing:
THE STATE: Your Honor, I guess if the State wants to go first on
that. First of all, I believe that State, Defense Exhibit
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No. 2 and 1 for that matter, since they’re text messages
of the same pictures or some of the same pictures, we
believe first of all they’re irrelevant. I believe that they
do, or at least one of the pictures falls under Rape
Shield. It’s sexual contact.1
....
THE COURT: Response?
DEFENSE ATTORNEY: I first off don’t believe it’s sexual contact as prescribed by
the statute. Specifically the Bobo case, 267 Ark. 1, states
- - It’s basically the court excluded some nude
photographs, but it was excluded for holding that the
probative value was outweighed by the prejudicial
nature, but they specifically go on to say:
“Since posing nude for a photograph does not fall within
the statutory definition of sexual conduct, we are not
convinced that act was meant to permit the
introduction, or it was meant to preclude the
introduction of such evidence.”
Simply put, the State has failed to demonstrate that the fact that the lap dances
occurred satisfied the definition of “sexual conduct.” R.S. testified at the hearing that
“[f]rom [her] point of view, what happened [the] night before was strictly lap dancing, and
nothing sexual occurred.” While the State argued that what happened on July 8, 2015 was
irrelevant, it did not argue that the fact that lap dances occurred between Harrelson and
R.S. on July 8, 2015 was “sexual conduct” and should have been excluded pursuant to the
rape-shield statute. Therefore, I dissent from the majority opinion and would affirm the
circuit court.
1
The pictures were excluded by circuit court and are not an issue in this appeal.
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JOSEPHINE LINKER HART, Justice, dissenting. The pertinent issue before this
court is not whether, pursuant to the rape-shield statute, the circuit court abused its
discretion in failing to exclude all of the evidence of the alleged victim’s conduct, but
whether the rape-shield statute applied at all. The rape-shield statute applies only to a
victim’s prior “sexual conduct.” The conduct in question does not constitute “sexual
conduct” as defined by our legislature.1
For an act to constitute “sexual conduct,” it must fall within one of three definitions:
deviate sexual activity, sexual contact, or sexual intercourse. Ark. Code Ann. § 16-42-
101(a) (Repl. 1999). The definitions of “deviate sexual activity” and “sexual intercourse”
both require an act of penetration. Ark. Code Ann. § 5-14-101(1) & (11) (Repl. 2013).
Furthermore, the definitions of “deviate sexual activity” and “sexual contact” both require
that the purpose of the touching be for sexual gratification. Ark. Code Ann. § 5-14-101(1)
& (10) (Repl. 2013). “Sexual contact” is specifically defined as “any act of sexual
gratification involving the touching, directly or through clothing, of the sex organs,
buttocks, or anus of a person or the breast of a female.” Ark. Code Ann. § 5-14-101(8)
(Repl. 2013).
1
Despite the circuit court rejecting Cossio’s similar argument that the conduct in
question did not constitute “sexual conduct” and Cossio’s failure to challenge that finding
on appeal, it is the practice of this court not to reverse an evidentiary ruling by a circuit
court when it uses the wrong reason to reach the right result. Dandridge v. State, 292 Ark.
40, 727 S.W.2d 851 (1987).
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According to the alleged victim, R.S., “there was no penetration of anybody’s sex
organs that night.” R.S.’s testimony is undisputed. Likewise, there was no testimony or
evidence of contact involving any act of sexual gratification. The majority cites Farmer,
stating “sexual gratification is rarely capable of proof by direct evidence and must instead
be inferred from the circumstances.” Farmer v. State, 341 Ark. 220, 15 S.W.3d 674 (2000).
However, an inference of the circumstances present in this case is unnecessary because
direct evidence is available. Here, the alleged victim’s own testimony provides the direct
evidence needed to assess “sexual gratification.” R.S. testified that Harrelson specifically
came to her apartment so she could teach her dance techniques and try on outfits because
Harrelson was interested in becoming an exotic dancer. The testimony unequivocally
established the purpose of the contact that occurred was not for sexual gratification, but for
demonstration reasons only.
Although “sexual gratification” is not defined by statute, the words have been
interpreted in accordance with their “reasonable and commonly accepted meanings” in
similar cases. McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991); Warren v. State,
314 Ark. 192, 862 S.W.2d 222 (1993). According to the court in McGalliard, Webster’s
Dictionary defines the word “sexual” as “of or relating to the male or female sexes or their
distinctive organs or functions” or “of or relating to the sphere of behavior associated with
libidinal gratification,” and defines “gratification” as “something that pleases.” Webster’s
Third New International Dictionary of the English Language, Unabridged (1961).
While the testimony given by R.S. does indicate that she did, indeed, touch Miss
Harrelson’s breasts on July 8, she also indicated that, “that is part of lap dancing that I would
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run down the front torso of someone” and “from [her] point of view, what happened [that]
night before was strictly lap dancing, and nothing sexual occurred.” During the hearing,
the State even claimed, “What we learned so far from the testimony is that these, that they
came over the night before, and [R.S.] gave a lap dance to Shauna Harrelson and showed
her some moves and that is all.” Cossio was not involved in either the giving or the
receiving of any of the dances, and furthermore, R.S. was unaware Cossio was taking
photographs at the time. Not one iota of evidence was offered to support the potential
inference by the circuit court that R.S. and Harrelson engaged in the conduct for the
purpose of sexually gratifying anyone, let alone for the gratification of Cossio. The circuit
court could not, and did not, make such an inference.
Furthermore, it should be reemphasized that the purpose of the rape-shield statute is
to protect the victims of rape or sexual abuse from the humiliation of having their prior
sexual conduct paraded in front of the jury. Stewart v. State, 2012 Ark. 349, 423 S.W.3d
69. Here, the alleged victim herself does not consider her actions sexual, so the protection
awarded by the rape-shield statute is unnecessary and its application is erroneous. Thus,
after examination of all the evidence presented to the circuit court, there is no indication
that any of the touching that occurred on July 8, 2015, between R.S. and Harrelson was
done for sexual gratification.
Absent evidence alleging penetration or that any of the touching was for the purpose
of sexual gratification, none of the conduct on July 8 falls under the rape-shield statute. In
my view, the rape-shield statute was applied in error by the circuit court. While I would
reverse the circuit court’s entire ruling, I am mindful that Cossio has not filed a cross-
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appeal, so the evidence the circuit court excluded, including the photographs, must remain
excluded despite the error. Thus, I would affirm the ruling by the circuit court that the
testimonial evidence should be admissible at the subsequent trial.
I respectfully dissent.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellant.
James Law Firm, by: Michael Kiel Kaiser and Bobby R. Digby II, for appellee.
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