Hathcock v. State

182 S.W.3d 152, 357 Ark. 563, 2004 Ark. LEXIS 350
CourtSupreme Court of Arkansas
DecidedMay 27, 2004
DocketCR 03-1089
StatusPublished
Cited by31 cases

This text of 182 S.W.3d 152 (Hathcock v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hathcock v. State, 182 S.W.3d 152, 357 Ark. 563, 2004 Ark. LEXIS 350 (Ark. 2004).

Opinion

Jim Hannah, Justice.

Appellant James Hathcock appeals the tice. Pulaski County Circuit Court, Fifth Division, convicting him of incest and sentencing him to a term of six years’ imprisonment in the Arkansas Department of Correction. For reversal, Hathcock argues that: (1) the trial court erred in denying his motion to present evidence of the victim’s prior sexual conduct; (2) the trial court abused its discretion in “refusing to fully exclude evidence or grant a continuance when the State announced its intention, immediately before retrial, to introduce previously undisclosed evidence;” (3) the trial court erred in refusing to permit testimony concerning the erasure of witness interview tapes; and (4) the trial court erred in permitting the State to introduce evidence under Rule 404(b) of the Arkansas Rules of Evidence. Because this appeal involves a challenge under the rape-shield statute, our jurisdiction is pursuant to Ark. Code Ann. § 16-42-101 (Repl. 1999) and Ark. Sup. Ct. R. l-2(a)(8).

Evidence of Prior Sexual Conduct

Prior to trial, Hathcock filed a Motion to Admit Evidence of Prior Sexual Conduct and to Hold Ark. Code Ann. § 16-42-101, the rape-shield statute, unconstitutional. In his motion, Hathcock contended that evidence of the prior sexual conduct of his daughter S.H. was essential to the presentation of his defense to her accusation because part of his defense was that S.H. had “falsely accused him out of resentment for reasons including his restrictions on her social life because of her sexual activity.” He also contended that S.H. had admitted misrepresenting her sexual activity in the course of discussing the allegations with the police. Hathcock claims that “this denial and recantation went to [S.H.’s] credibility.”

At the rape-shield hearing, Hathcock proffered S.H.’s testimony on the issue of prior sexual conduct. Following are the relevant portions of the colloquy between defense counsel and S.H.:

Q: [S.H.], do you recall testifying back a number of months ago here in a hearing, is that correct?
A: Yes.
Q: And if I recall correctly, when you came down to the Little Rock Police Department, they originally asked you if had had sex with anyone; is that right?
A: Yes.
Q: And you told them no; is that correct?
A: Yes....
Q: And a medical examination was set up; is that correct?
A: Yes.
Q: And at some point before the examination was conducted, you admitted that you, in fact, had had sex?
A: In that same day that she asked me, I said no, but I told her that I wanted to tell my mom that I did before I told them.
Q: Okay. You told Ms. Elmore that you did or you did not?
A: I told her that I didn’t, but I wanted to tell her, but then I — ... I said no to her at first. And then I said yes, I did, but I wanted to tell my mom before they did. I wanted to tell her myself.
Q: You originally said no to Ms. Elmore?
A: Yes, I originally said no.
Q: And then you said yes to Ms. Elmore?
A: Yes.
Q: Okay. How long between the time you said no and the time you said yes?
A: Seconds.
* * *

The trial court found:

. . . First of all, the Court is going to find that the testimony would involve sexual conduct as defined by 16-42-101 and that the testimony would be used for the purposes to attack the credibility of the victim and that the testimony would be relevant to an issue. But the problem we have is that I don’t know that the Court will find that its probative value, though, doesn’t outweigh its inflammatory or prejudicial nature. And although relevant in that it may tend to prove that the victim is lying or shed some light on whether or not this incident occurred, I think under the statute it’s excluded in that I think in this case it’s inflammatory and prejudicial.
Especially- — and I make this finding especially in light of the fact that it appears there is an inconsistency. And there is an initial inconsistency about whether or not she had told the police officer that she had had prior sexual conduct or engaged in prior sexual conduct, but the inconsistency revolved around the statements that she gave in testimony, not whether or not she had, in fact, engaged in conduct. And I think she has come forth and said that she has engaged in prior sexual conduct and; it’s pretty consistent.
So anything we get into in that area I think would violate the rape shield statute, and I want to stay away from that. So I will deny that part, but I think you have made a record on that.

In addition, the trial court denied Hathcock’s motion to declare § 16-42-101 unconstitutional. 1

* * *
At trial, Hathcock proffered the following testimony through counsel:
... If permitted to testify on this point, Mr. Hathcock would testify that as part of what he perceived to be the antagonism . . . felt toward him, ... he had a [sic] argument, confrontation, meeting —whatever you may want to call it — with this witness here and told her in a very stem tone that if he caught her having sex, that he would . . . have the Children’s Hospital examine her and that she had a negative reaction toward this.... And we would submit this would go to his, go to bias, any bias she may have, and we would submit that the probative value outweighs any prejudicial nature, if any. . . .

The trial court held:

Here is what the Court’s ruling is going to be. I’m going to deny the use of it, but it’s for another reason. In addition to the fact that I, I do think that as far as it being more probative than prejudicial and weighing it, I would find that the probative value is probably outweighed by the danger of undue prejudice. But I think it’s also kind of already been hinted at already when the argument was made that the defendant was very strict and was very concerned about the, his daughters becoming pregnant and that was part of the reason why, you know, that no boys, no phone calls. And so that to me is another way of saying this.
So I don’t think that it’s necessary to get into this particular thing, because I think that it doesn’t foreclose the defendant from making the argument that he was concerned about them becoming pregnant and that’s why he was very hard on them. . . .

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Bluebook (online)
182 S.W.3d 152, 357 Ark. 563, 2004 Ark. LEXIS 350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hathcock-v-state-ark-2004.