Thompson v. State

Cite as 2015 Ark. App. 275

ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-14-763

Opinion Delivered April 29, 2015

MARIO D. THOMPSON APPEAL FROM THE WASHINGTON
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2012-709-1; NO. CR-2014-
V. 776-1]

STATE OF ARKANSAS HONORABLE WILLIAM A. STOREY,
APPELLEE JUDGE

AFFIRMED

BRANDON J. HARRISON, Judge

Mario Thompson appeals his convictions for sexual assault and rape, arguing that

the circuit court erred in (1) denying his motion for directed verdict, (2) denying his

motion for severance, (3) denying his motion to suppress his statement to the police, (4)

not allowing a certain forensic evaluation into evidence, (5) not allowing certain testimony

pursuant to Ark R. Evid. 404(b), and (6) denying his motion to quash the jury panel. We

affirm.

In case number CR-2012-709-1, Thompson was charged with two counts of

sexual assault in the second degree. In case number CR-2014-776-1, he was charged

with one count of rape. The cases were tried together, and a jury found Thompson guilty

of all charges and fixed sentences of ten years’ imprisonment for each count of sexual

assault and twenty-five years’ imprisonment for rape. The court imposed the sentences to

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run consecutively, and Thompson has now appealed. Specific facts pertinent to the points

on appeal will be discussed below.

I. Sufficiency of the Evidence

The State’s evidence in this case can be summarized as follows. Fourteen-year-old

J.C., the victim in CR-2012-709-1, testified that when she was five years old, her

babysitter was Thompson’s mother, Laverne Thompson. J.C. explained that she and

several other children stayed at Laverne’s house during the summer and after school and

that Thompson was there, too. On several occasions during naptime, while the other

children were sleeping, Thompson took her to his bedroom, took her clothes off,

positioned himself over her “in a push up position,” and put his penis into her vagina.

J.C. testified that this also happened at her house when Thompson babysat her on his

own, at the Boys and Girls Club in an equipment room, and once when Thompson

picked her up from the Boys and Girls Club, drove her to a house that was under

construction, and did “the same thing.” She agreed that she was approximately five to

seven years old when these incidents occurred and that she guessed Thompson was

“sixteen or seventeen.” J.C. said that she did not tell anyone about the abuse when it

happened because Thompson told her not to and she was scared. J.C. told her mother

about the prior abuse when she was twelve years old.

Officer Malachi Samuels of the Fayetteville Police Department testified that he

interviewed Thompson on 7 March 2012. Samuels agreed that during the course of the

interview, Thompson initially denied sexual contact with J.C. but later admitted to it.

Thompson also admitted that he sent J.C.’s mother a Facebook message apologizing for

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“having intercourse” with J.C. Samuels explained that, according to his investigation,

Thompson had access to J.C. from 2005 to 2008, and with Thompson’s birth date in

September 1987, he was between seventeen and twenty years old during that time.

Terri Center, J.C.’s mother, testified that she received a Facebook message from

Thompson on 6 March 2012, apologizing for “all that I have done in the past.” When

Center asked if he had hurt J.C., Thompson responded, “No when I use[d] to babysit

them and have any intercource [sic] with her like sex.” Center testified that she reported

the sexual abuse to the police that same day.

Jeanette Walker, mother of K.W., the victim in CR-2014-766-1, testified that her

son and Thompson were in “Explorers” together, which is akin to the Boy Scouts but

focused on law-enforcement duties. Walker was a Deputy First Class at the Washington

County Sheriff’s Office, and Thompson volunteered at the Sheriff’s Office in the

dentention center. She explained that Thompson and her son were friends and that

Thompson would sometimes come to her home. According to Walker, in the summer of

2007, there was an instance in which her daughter, nine-year-old K.W., wanted to go

swimming, so Walker allowed Thompson to take K.W. to the swimming pool.

Sixteen-year-old K.W. testified that she first met Thompson when she was

approximately seven years old. She said that when she was nine or ten years old,

Thompson offered to take her swimming and her mother allowed her to go. At the

swimming facility, Thompson told her to go into the family changing room with him.

Thompson then locked the door, turned out the lights, and started touching her breasts

and vagina. He also put his penis inside her vagina. He told her afterward that if she told

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anyone, they would both get into trouble. She explained that she did not tell anyone

about the incident until recently because she was scared and “didn’t want to be the weird

girl that got raped.” She also testified that a similar incident happened again a short time

later, again at the swimming facility’s family changing room.

Detective Richard Firsby with the Springdale Police Department testified that

when this incident occurred, K.W. was nine years old and Thompson was nineteen.

Sue Stockton, a sexual-assault examiner with a specialty in pediatrics, testified that

she examined K.W. on January 28, 2014, and that K.W. had a normal genital exam. She

also said that a child can be penetrated without injury and that it is very difficult to

diagnose vaginal penetration if a long period of time has passed.

In his directed-verdict motion below, Thompson argued that the State had failed to

prove sexual gratification or penetration, that both victims’ testimony was not credible and

insufficient to sustain a conviction, and that his age when the alleged offenses occurred had

not been proven. On appeal, Thompson similarly argues that the State failed to provide

sufficient evidence of penetration in CR-2014-776-1 and that, in both cases, the victims’

testimony was not credible and the State failed to prove his age at the time of the offenses.

This court treats a motion for directed verdict as a challenge to the sufficiency of

the evidence. See Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). In reviewing a

challenge to the sufficiency of the evidence, we determine whether the verdict is

supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is

evidence forceful enough to compel a conclusion one way or the other beyond suspicion

or conjecture. Id. This court views the evidence in the light most favorable to the

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verdict, and only evidence supporting the verdict will be considered. Id. The credibility

of witnesses is an issue for the jury and not the court. Morgan v. State, 2009 Ark. 257, 308

S.W.3d 147. The trier of fact is free to believe all or part of any witness’s testimony and

may resolve questions of conflicting testimony and inconsistent evidence. Id.

A person commits rape if he engages in sexual intercourse or deviate sexual activity

with another person who is less than fourteen years of age. Ark. Code Ann. § 5-14-

103(a)(3)(A) (Repl. 2013). “Deviate sexual activity” is defined as “any act of sexual

gratification involving the penetration, however slight, of the labia majora or anus of a

person by any body member or foreign instrument manipulated by another person.” Ark.

Code Ann. § 5-14-101(1)(B) (Repl. 2013). A person commits the offense of second-

degree sexual assault if he, being eighteen years of age or older, engages in sexual contact

with another person who is less than fourteen years of age and not the person’s spouse.

Ark. Code Ann. § 5-14-125(a)(3) (Repl. 2013). “Sexual contact” is 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(10)

(Repl. 2013).

We reject Thompson’s arguments. Both victims testified that Thompson

penetrated their vaginas with his penis, and a rape victim’s uncorroborated testimony

describing penetration may constitute substantial evidence to sustain a conviction of rape,

even when the victim is a child. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008).

The rape victim’s testimony need not be corroborated, and scientific evidence is not

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required. Kelley v. State, 375 Ark. 483, 292 S.W.3d 297 (2009). Thompson’s argument

that the victims are not credible was an issue for the jury to decide. Morgan, supra.

Finally, regarding his age when the offenses occurred, Officer Samuels’s testimony

established that Thompson was between seventeen and twenty years old over the course

of time that he sexually abused J.C., so the jury could have reasonably concluded that at

least two of the sexual assaults occurred after Thompson turned eighteen. In addition,

Officer Firsby testified that Thompson was nineteen at the time of K.W.’s rape. No

rebuttal evidence was presented. Therefore, we hold that substantial evidence supports

Thompson’s convictions.

II. Motion for Severance

Thompson was charged in CR-2012-709-1 on 9 May 2012. In July 2012,

Thompson filed a notice of his intent to raise mental disease or defect as a defense and

asked the court to suspend the proceedings pursuant to Ark. Code Ann. § 5-2-305 (Supp.

2011). In October 2012, Dr. Robin Ross performed a forensic evalution of Thompson

and diagnosed him with mild mental retardation with a full scale IQ of 62. Dr. Ross

concluded that Thompson (1) had a mental defect, and (2) lacked the capacity to assist

effectively in his own defense. As a result, Thompson was committed to the Department

of Human Services “for detention, care, and treatment until restoration of fitness to

proceed.”

In May 2013, Dr. Richard Back examined Thompson and also found that

Thompson had a mental defect, namely retardation, with a full scale IQ of 53. Back also

opined that Thompson did not have the capacity to appreciate criminality of his conduct,

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to conform his conduct to requirements of law, or to engage in purposeful conduct. In

July 2013, however, Dr. Michael Simon performed another evaluation at the Arkansas

State Hospital; Dr. Simon agreed that Thompson had a mental defect (mild mental

retardation), but opined that Thompson did not lack the capacity to understand the

proceedings against him, appreciate the criminality of his conduct, conform his conduct to

the requirements of the law, or form the required culpable mental state. Dr. Simon also

noted that recent testing rated Thompson’s IQ at 64. After a competency hearing in

November 2013, Thompson was declared fit to proceed.

On 17 March 2014, the State filed a motion for continuance, explaining that the

State intended to charge Thompson with additional charges “that involve the same

motive, common scheme or plan,” and requesting that the new charges be tried at the

same time as the current charges in CR-2012-709-1. The motion was granted, and on

April 29, Thompson was charged in CR-2014-776-1 with one count of rape.

Thompson filed a notice of his intent to raise mental disease or defect as a defense

to the new charge and asked the court to suspend the proceedings pursuant to Ark. Code

Ann. § 5-2-305. Thompson also filed a motion to sever the two cases, arguing that the

accused acts underlying the two cases “are not connected in their commission nor is there

a common element of substantial importance in the commission of the two crimes.”

Because there was no single scheme or plan, he argued, he was entitled to severance under

Rule 22.2 of the Arkansas Rules of Criminal Procedure. Additionally, Thompson argued

that the cases should be severed because his mental status with regard to the 2014 charge

had not been addressed by any mental-health professional.

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The court heard arguments on the motions in May 2014 and questioned what had

changed since the time Thompson had been declared competent to proceed in November

2013 other than the additional charges being filed. The State argued that nothing had

changed, that both cases involved similar acts and circumstances, and that, under the

pedophile exception, the evidence in one case would be admissible in the other case, so

severance was not required. In its ruling, the court found:

I think clearly because the evidence in each case of the other conduct or
alleged conduct of the Defendant would be admissible in the respective
cases, I think that standing alone would be reason to not grant the motion to
sever. However there may well be, it appears there is similar conduct or
alleged conduct on the part of the Defendant and clearly on the issue of lack
of mistake or a possible plan, again, the evidence of his alleged conduct
would be admissible so for all of those reasons I’ll deny the Motion to
Sever[.]

The decision of whether to grant a defendant’s motion for severance of two or

more offenses lies within the circuit court’s discretion, and this court will not reverse

absent an abuse of discretion. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996).

Where, however, the offenses are joined solely on the basis that they are of the same or

similar character, a defendant has an absolute right to their severance. Id. Rule 22.2 of

the Arkansas Rules of Criminal Procedure provides further that the circuit court should

grant a motion to sever if necessary for a fair trial of each offense. Our supreme court has

held that when each victim’s testimony would be admissible in the trial of the other to

show a defendant’s intent, motive, or common scheme or plan, then there is no abuse of

discretion in refusing to sever two cases. Parish v. State, 357 Ark. 260, 163 S.W.3d 843

(2004); see also Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992) (holding that the

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circuit court did not abuse its discretion in refusing a motion to sever separate charges of

rape committed against the appellant’s two nieces).

Here, Thompson argues that all the psychiatric examinations introduced before the

circuit court had focused on his mental status at the time of the charges alleged in CR-

2012-709 and that the cases should have been severed so that his mental state at the time

of the charges alleged in CR-2014-766-1 could be determined. He also asserts that the

two cases involved separate and distinct crimes, with no single plan or scheme, so he was

entitled to his right of severance under Rule 22.2.

Thompson’s Rule 22.2 argument is mistaken given the cases involving Rule 404(b)

evidence. See Parish, supra, and Lukach, supra. Thompson conceded below that the

victims’ testimony would be admissible under Rule 404(b) if the charges were tried

separately. His argument that he was entitled to a second mental-health evaluation is

likewise mistaken, as a defendant is not automatically entitled to a second evaluation

simply because, after the first evaluation, he raises the defense of mental defect or mental

incapacity or contests the first evaluation. Avery v. State, 93 Ark. App. 112, 217 S.W.3d

162 (2005). Whether a second mental evaluation is necessary is within the circuit court’s

discretion to determine. Id. In this case, the crimes occurred during the same time frame,

and the circuit court correctly noted that there had been no change in Thompson’s mental

status since the November 2013 determination that he was fit to proceed. Thus, we hold

there was no abuse of discretion in the circuit court’s denial of the motion for severance.

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III. Motion to Suppress

On 7 March 2012, Thompson was interviewed by Detective Samuels. In that

interview, Thompson agreed that “something inappropriate” had happened between him

and J.C., and he later admitted to touching her vagina with his penis and ejaculating on

her. In November 2013, Thompson filed a motion to suppress this statement, arguing

that, due to his mental disability, he could not understand his Miranda rights and the

consequences of waiving them, so his statement was involuntary and inadmissible.

A hearing on the motion was held in March 2014. Detective Samuels testified that

he advised Thompson of his Miranda rights by reading them out loud while Thompson

followed along. Samuels stated that Thompson responded to his questions and appeared

to understand what was being said. Samuels explained that he had Thompson read aloud

the last paragraph on the Miranda rights form, which stated: “I have read the statement of

my rights and I understand what my rights are. No promises or threats have been made to

me and no pressure or coercion of any kind has been used against me.” Samuels said that

Thompson appeared to understand what that paragraph meant and that Thompson

initialed each of his rights on the form and signed and dated it at the bottom. Samuels

agreed that, to the best of his knowledge, Thompson’s statement was given freely and

voluntarily. On cross-examination, Samuels described Thompson as “slower intellectually

than others” but still capable of understanding what is being asked. On redirect, Samuels

testified that he did not coerce or threaten Thompson in any way and reiterated that

Thompson had read aloud the last paragraph on the Miranda rights form and agreed with

that statement.

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Thompson argued that under Ark. Code Ann. § 5-4-618 (Repl. 2013), an IQ of

65 or below creates a presumption of mental retardation, and the mental evaluations

performed after his arrest rated his IQ in a range from 53 to 64. He asserted that the

presumption “had not been and cannot be rebutted” and that he was “effectively unable

to intelligently, knowingly waive any right that he has.” Thus, he argued, his statement

should be suppressed.

The State responded that Thompson had already been found competent to stand

trial, that he performed poorly on the mental evaluations because he did not try, and that

Detective Samuels had done a good job of explaining to Thompson his rights and giving

him ample opportunity to ask questions. The State asserted that Thompson “does

understand what is going on” and requested that the motion to suppress be denied. The

court took the matter under advisement and, at a later hearing in May 2014, denied the

motion to suppress, stating that “the State met its burden on that issue.” The State later

introduced an audio recording of the interview, as well as the transcript, during its case-in-

chief.

A statement made while in custody is presumptively involuntary, and the burden is

on the State to prove by a preponderance of the evidence that a custodial statement was

given voluntarily. Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007). In Grillot v. State,

353 Ark. 294, 107 S.W.3d 136 (2003), our supreme court clarified the appropriate

standard of review for cases involving a circuit court’s ruling on the voluntariness of a

confession—we make an independent determination based upon the totality of the

circumstances. We review the circuit court’s findings of fact for clear error, and the

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ultimate question of whether the confession was voluntary is subject to an independent, or

de novo, determination by the appellate court. Clark v. State, 374 Ark. 292, 287 S.W.3d

567 (2008).

To determine whether a waiver of Miranda rights is voluntary, knowing, and

intelligent, we look to see if the statement was the product of free and deliberate choice

rather than intimidation, coercion, or deception. Flanagan v. State, 368 Ark. 143, 243

S.W.3d 866 (2006). To make this determination, we review the totality of the

circumstances surrounding the waiver including the age, education, and intelligence of the

accused; the lack of advice as to his constitutional rights; the length of the detention; the

repeated and prolonged nature of the questioning; the use of mental or physical

punishment; and statements made by the interrogating officers and the vulnerability of the

defendant. Id. We will reverse a circuit court’s ruling on this issue only if it is clearly

against the preponderance of the evidence. Id. Evaluating the credibility of witnesses

who testify at a suppression hearing about the circumstances surrounding an appellant’s

custodial confession is for the circuit court to determine, and this court defers to the

circuit court in matters of credibility. Shields v. State, 357 Ark. 283, 166 S.W.3d 28

(2004).

As mentioned, Thompson argues that because of his mental retardation, he lacked

the capacity to understand or waive his Miranda rights when interviewed by Detective

Samuels, so all his statements were involuntary and inadmissible. But our supreme court

has held that while mental capacity is a factor we consider, it alone is not sufficient to

suppress a confession. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).

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Likewise, a low score on an intelligence-quotient test does not mean that a suspect is

incapable of voluntarily making a confession or waiving his right. Id.

In reviewing the totality of the circumstances, we also note that Thompson was

twenty-four years old when he gave his statement and had a high-school education.

Detective Samuels testified that Thompson appeared to understand his rights and gave his

statement after voluntarily waiving those rights. Thompson also signed, dated, and

initialed the Miranda rights form and never indicated that he did not understand his rights.

Based on these points, Misskelley, supra, and our deference to the circuit court in matters of

credibility, we hold that the denial of the motion to suppress was not clearly against the

preponderance of the evidence.

IV. Admission of Dr. Ross’s Forensic Evaluation

As explained previously, in October 2012, Dr. Robin Ross performed a forensic

evalution of Thompson and diagnosed him with mild mental retardation with a full scale

IQ of 62. Dr. Ross concluded that Thompson (1) had a mental defect, and (2) lacked the

capacity to assist effectively in his own defense. Dr. Ross performed another evaluation of

Thompson in January 2013, in reference to another criminal charge not at issue in this

appeal, and concluded that while Thompson did have mild mental retardation with a full

scale IQ of 62, he did not lack the capacity to appreciate the criminality of his conduct or

to conform his conduct to the requirements of the law. Dr. Ross also noted that her

opinion of Thompson had changed since October 2012:

I am not sure how to explain the difference in his test scores; however, I do
know that someone cannot test smarter than they actually are, and it would
be my opinion that his full effort was given today and that a better

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assessment of his actual level of functioning concerning standing trial is seen
in today’s results and not the results in October of 2012.

At a motions hearing in May 2014, the State announced that Dr. Ross had moved

to Arizona and would not be called as a material witness. Defense counsel stated his

intention to file a motion to restrict any reference to Dr. Ross’s reports, and the court told

counsel to file a formal motion if he wished but “I think we have an understanding that

no reference will be made to her examination or reports.”

On 3 June 2014, Thompson filed a motion in limine asking that the January 2013

report be excluded because Dr. Ross would be unavailable for cross-examination but that

Dr. Ross’s October 2012 report be admitted into evidence because it was “crime specific”

to CR-2012-709-1. Immediately before trial, the circuit court denied the motion and

reiterated that “neither party shall mention or make reference to Dr. Ross’s examination,

reports, comments, [or] statements.”

On appeal, Thompson contends that the court’s denial of his motion in limine

prevented him from offering evidence “in support of [his] statutorily plead [sic] defenses”

and denied him a fair and impartial trial. First, Thompson has provided no convincing

argument or citation to authority to explain why the October 2012 report should have

been admitted when the January 2013 report was properly excluded. We do not consider

arguments without convincing argument or citations to authority. See MacKool v. State,

2012 Ark. 287, 423 S.W.3d 28. Second, if Thompson wished to introduce the October

2012 report, he had to call Dr. Ross as a material witness in his own case-in-chief, which

he did not do.

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Circuit courts have broad discretion in the admission of evidence, and a circuit

court’s ruling on the admissibility of evidence will not be reversed absent an abuse of

discretion. See Vance v. State, 2011 Ark. 392, 384 S.W.3d 515. Given these facts, we hold

that Thompson has not established that the circuit court abused its discretion by not

admitting Dr. Ross’s October 2012 report.

V. Rape-Shield Statute

On 9 June 2014, Thompson notified the State that he intended to call Jim Hill as a

witness. According to Thompson, Hill would “confirm sexual activity” between K.W.

and her boyfriend. The State responded that the evidence is inadmissible pursuant to Ark.

Code Ann. § 16-42-101 (Repl. 1999). At an in-camera hearing held after the first day of

the trial, Thompson argued that Hill, a friend of K.W.’s boyfriend, would testify that

K.W. and her nineteen-year-old boyfriend were having sex. He argued that the

testimony was relevant because both K.W. and her boyfriend denied having intercourse.

Thompson’s theory was essentially that K.W. had invented this story about Thompson

assaulting her to explain to her mother why she was no longer a virgin.

The State first responded that the hearing was untimely and that there was no good

cause for allowing it. It also argued that Thompson could not show that the alleged prior

sexual conduct clearly occurred, that the alleged prior conduct did not closely resemble

the alleged crime, that the alleged prior conduct was not relevant or necessary to

Thompson’s case, and that the prejudice of such evidence outweighed any probative

value.

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The court found that there was “real strong argument” that the motion to admit

Hill’s testimony was not timely, but the court ruled on it nonetheless. The court found

that Hill’s testimony had “very little, if any, independent relevance on the issues before the

court” and that “the prejudicial effect of such evidence would clearly outweigh any

remote probative value.” So, Thompson was not permitted to present Hill’s testimony at

trial.

Arkansas Code Annotated section 16-42-101(b) provides:

In any criminal prosecution under § 5-14-101 et seq. or § 5-26-202 . . .
opinion evidence, reputation evidence, or evidence of specific instances of
the victim’s prior sexual conduct with the defendant or any other person,
evidence of a victim’s prior allegations of sexual conduct with the defendant
or any other person, which allegations the victim asserts to be true, or
evidence offered by the defendant concerning prior allegations of sexual
conduct by the victim with the defendant or any other person if the victim
denies making the allegations 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.

The purpose of the rape-shield statute is to shield victims of rape or sexual abuse from the

humiliation of having their personal conduct, unrelated to the charges pending, paraded

before the jury and the public when the conduct is irrelevant to the defendant’s guilt.

Stewart v. State, 2012 Ark. 349, 423 S.W.3d 69. A circuit court is vested with wide

discretion in deciding whether evidence is relevant and admissible, and we will not

overturn that decision absent clear error or a manifest abuse of discretion. Id.

On appeal, Thompson argues that Hill’s testimony would have revealed a “lack of

credibility and untruthfulness” in K.W.’s testimony and that, while inflammatory, its

probative value outweighed any prejudice. He also argues that Ark. Code Ann. § 16-42-
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101 does not apply “to charges that are a violation of a minor.” The State counters that

Thompson’s argument is not preserved because he failed to proffer Hill’s testimony for the

record, that Thompson failed to file the required written motion before trial, and that the

circuit court correctly ruled that Hill’s testimony was irrelevant and overly prejudicial.

As to Thompson’s violation-of-a-minor point, the argument is based on the

holding in Donihoo v. State, 325 Ark. 483, 931 S.W.2d 69 (1996), which did hold that the

rape-shield statute does not apply to charges for violation of a minor. But Thompson was

charged with rape, not violating a minor, and the rape-shield statute clearly applies to a

rape charge. Setting aside any timeliness issue, on the rape-shield point, we disagree that

Thompson failed to make a sufficient proffer of Hill’s anticipated testimony. But that does

not change the legal fact that the circuit court did not abuse its discretion by deciding that

Hill could not testify given the proffered testimony. In Gaines v. State, the Arkansas

Supreme Court stated that “virginity is not relevant per se in a rape case” and that

“evidence of prior consensual sexual conduct is inadmissible unless such prior sexual

conduct took place with the accused and, if admitted, the testimony is allowed only to

show that consent may have been given.” 313 Ark. 561, 567, 855 S.W.2d 956, 959

(1993). Having reviewed the record of the in-camera hearing, the case law, and the rape-

shield statute itself, we hold that the circuit court did not abuse its discretion in deciding

that Hill’s anticipated testimony was either irrelevant or unduly prejudicial.

VI. Failure to Quash the Jury Panel

Before jury selection on 11 July 2014, Thompson objected that there were not any

black jurors in the jury pool. He stated that he was making an “extremely broad

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objection” under Batson v. Kentucky1 and that “[w]e just need some black representation

on that jury panel.” The court replied that it was not, at that point, a Batson issue; that the

jury panel “was drawn in strict compliance with the statutes relating to the selection and

summonsing of veniremen”; and that Thompson’s motion was denied. At the close of the

State’s case, Thompson renewed his objection, which the court again ruled was not a

Batson issue and characterized it as an attempt to quash the jury panel, which the court

noted was untimely but nonetheless was denied.

We will reverse a circuit court’s denial of a motion to quash a jury panel only

when there is a manifest abuse of discretion. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893

(2002). Although selecting a petit jury from a representative cross-section of the

community is an essential component of the Sixth Amendment right to a jury trial,

nothing requires that the petit jury mirror the community and reflect the various

distinctive groups in the population. Danzie v. State, 326 Ark. 34, 930 S.W.2d 310

(1996). To quash a jury panel based upon its racial make-up, the moving party must

prove that people of a certain race were systematically excluded from the panel. See

Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007). To establish a prima facie case of

deliberate or systematic exclusion, a defendant must prove that: (1) the group alleged to be

excluded is a “distinctive” group in the community; (2) the representation of this group in

venires from which the juries are selected is not fair and reasonable in relation to the

number of such persons in the community; and (3) this underrepresentation is due to

systematic exclusion of the group in the jury-selection process. Thomas v. State, 370 Ark.
1
476 U.S. 79 (1986). Under Batson, a prosecutor in a criminal case may not use
peremptory strikes to exclude jurors solely on the basis of race.
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70, 257 S.W.3d 92 (2007). The defendant must prove systematic exclusion of members of

his racial group from the venire; only after making a prima facie case by establishing these

three elements does the burden shift to the State to justify its procedure. Mitchell v. State,

323 Ark. 116, 913 S.W.2d 264 (1996).

On appeal, Thompson argues that the circuit court erred in failing to remove the

entire jury pool and that because there were no black jurors in the jury pool, a prima facie

case is presented that racial discrimination has occurred. The State counters that

Thompson only argued that there were no black jurors in the jury pool, which met the

first factor listed above, but he failed to offer any proof on factors two and three—namely

that representation of this group in the jury pool was not fair and reasonable in relation to

the number of such persons in the community or that this underrepresentation was due to

systematic exclusion of the group in the jury-selection process.

We find no abuse of discretion by the circuit court. Thompson has failed to

provide any evidence of a prima facie case of racial discrimination, and the primary case he

relies on, Williams v. State, 254 Ark. 799, 496 S.W.2d 395 (1973), is distinguishable.

There, the jury commissioners simply went down the list of qualified electors of the

county and selected a jury panel from among individuals with whom they were personally

acquainted, and because the commissioners were not as widely acquainted with blacks as

with whites in the involved area, the result was a disparity between the races in jury

selection. Thus, our supreme court held that the jury which tried the defendant was not a

legally constituted jury.

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Cite as 2015 Ark. App. 275
In this case, the court stated that the jury selection was done in strict compliance

with the relevant statutes, which generally provide for a random-selection process. See

Ark. Code Ann. § 16-32-103 (Supp. 2013). And Thompson has failed to challenge that

selection process or its result with any evidence that the jury selected was not fair and

reasonable in relation to the number of such persons in the community. The circuit court

did not abuse its discretion in denying the motion to quash.

Affirmed.

VIRDEN and HIXSON, JJ., agree.

Evans & Evans Law Firm, by: James E. Evans, Jr., for appellant.

Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.

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