State v. Mills , 311 Ark. 363 ( 1992 )

David Newbern, Justice.

The State attempts to bring an interlocutory appeal from an evidentiary ruling. During the trial of the appellee, Michael Mills, for rape and carnal abuse Mills sought to introduce evidence that the alleged victim had falsely accused two other men of sex offenses against her. The State objected on the basis of the rape-shield law, Ark. Code Ann. § lb-42-101 (1987), which precludes admitting evidence of “prior sexual conduct” on the part of an alleged rape victim. The Trial Court overruled the objection. The issue is whether this Court has jurisdiction to hear the appeal. We lack jurisdiction, and thus the appeal must be dismissed.

At an omnibus hearing Mills offered evidence of the alleged victim’s allegations against others. The alleged victim admitted making the earlier allegations and said they were true. Both of the other men accused earlier testified at the hearing and denied the incidents. The alleged victim stated she informed the police of these earlier allegations when she accused Mills, but no criminal charges were filed against the other two men.

After the hearing the Trial Court ruled that the evidence presented was not of “prior sexual conduct” as the term is used in the rape-shield law and thus it was admissible.

Jurisdiction

Subsection (a) of § 16-42-101 defines “sexual conduct” as “deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined by § 5-14-101.” Subsection (b) provides that in sex offense eases, “opinion evidence, reputation evidence, or evidence of specific instances of the 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.” Subsection (c) permits a trial court to hold a hearing to determine, notwithstanding the provision of subsection (b), whether evidence of the victim’s prior sexual conduct is so relevant that it should be admitted. Subsection (c)(3)(B) provides that if the prosecutor “is satisfied that, the order [presumably the order of the trial court admitting the evidence] substantially prejudices the prosecution of the case, an interlocutory appeal on behalf of the State may be taken in accordance with Arkansas Rules of Criminal Procedure 36.10(a) and (c).”

The Statute provides for an appeal by the State only where a trial court rules that the evidence proffered is of “prior sexual conduct” of the victim and then decides that the evidence should be admitted regardless of the rape-shield prohibition as it is both relevant to a fact issue and is more probative than prejudicial. If the ruling of the trial court is that the evidence is not of “prior sexual conduct,” as in this case, the Statute does not apply. That was our holding in West v. State, 290 Ark. 329, 719 S.W.2d 684 (1987). The State asks that we overrule that decision, but we have been given no convincing reason to do so. It was a correct interpretation of the Statute, giving literal and obvious meaning to the words used by the General Assembly.

Trial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent abuse of that discretion. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990). There is no basis for pretrial review of that exercise of discretion, and this is not a ruling which is subject to interlocutory appeal pursuant to Ark. R. Crim. P. 36.10(a) and (c).

When the question is whether evidence should be allowed, of prior false allegations of sex offenses by an alleged victim, a trial court finds itself in the position of having to decide a purely factual issue. If the previous allegations by the alleged victim are true, then the evidence is, in a sense, evidence of “prior sexual conduct,” although it is possibly not the harmful sort of evidence at which the rape-shield law is directed. If the previous allegations are false, the evidence of them is not of “prior sexual conduct” but is evidence of prior misconduct of the alleged victim which has a direct bearing upon the alleged victim’s credibility, particularly in the circumstances before the court. The Trial Court in this case voiced, several times, objection to having to conduct a “mini-trial,” but it is obvious that it must be done in these circumstances.

The State rejects Mills’s argument that there is no provision for an appeal where a court rules that the proffered evidence is not of “prior sexual conduct” by arguing that all rulings of a trial court made pursuant to the Statute should be subject to appellate review. It is argued that if a trial court erroneously finds that the evidence does not involve “prior sexual conduct” the ruling can not be corrected by appeal in the event of an acquittal. That is of course so, but it is true of the myriad other discretionary rulings a trial court must make.

While, as a matter of policy it may be that all rulings of a trial court interpreting the rape-shield law should be subject to interlocutory review, it is clearly a policy not yet expressed or implemented in the Statute. If the ruling a trial court must make in this sort of case is special, like that prescribed in Subsection (c) and to be given special treatment, the General Assembly has not said so.

In the absence of a statutory or constitutional provision or a provision in a rule of this Court, appellate jurisdiction is lacking. Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989) (jurisdiction lacking because no provision found in criminal procedure rule); City of Little Rock v. Tibbett, 301 Ark. 376, 784 S.W.2d 163 (1990) (jurisdiction lacking because no provision in constitution or rule of criminal procedure). In Ellis v. State, 302 Ark. 597, 791 S.W.2d 370 (1990), a criminal defendant sought dismissal of charges on the basis that the evidence the State proposed to introduce against him was inadmissible. The State argued, and we agreed, there was no statutory basis for jurisdiction to hear an appeal. We said:

The state correctly points out that appeals are granted as a matter of statute. There is no right of appeal granted by the United States Constitution. Abney v. United States, 431 U.S. 651 (1977). Appealability is controlled by Ark. R. App. P. 2(a) which requires a final judgment or decree or one which, in effect, determines the action and prevents a judgment from which an appeal might be taken or discontinues the action.

Burrow v. State, 301 Ark. 222, 783 S.W.2d 52 (1990), was a rape case in which the defendant wished to appeal from the Trial Court’s decision, made pursuant to Subsection (c) of § 16-42-101, that he could not introduce evidence of prior sexual conduct of the victim. He argued he was being deprived of equal protection of the law because of the provision that the State could appeal but lack of a provision for appeal by the defendant. We held that the law was not unconstitutional, pointing out as a basis of the discrimination that the State could not appeal from an acquittal but that the defendant could appeal from a conviction on the basis of error in refusing to admit the evidence. There again, the appeal was dismissed because of lack of a provision for it in the Statute.

Our rape-shield law is a product of the General Assembly, and until it sees fit to provide for interlocutory appeal by the State of a trial court’s decision with respect to admitting evidence of prior false allegations made by an alleged victim, or until some other jurisdictional basis by rule or constitutional provision appears, we lack jurisdiction to hear such an appeal.

Appeal dismissed.

Brown, J., concurs. Hays, Glaze, and Corbin, JJ., dissent.