                                     Cite as 2017 Ark. 297


                 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).
                                    Cite as 2017 Ark. 297

      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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