George Burns v. State of Arkansas

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Date:
Cite as 2020 Ark. App. 207
2021-06-15 17: ARKANSAS COURT OF APPEALS
24:24
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Version: 9.7.5 No. CR-19-755

Opinion Delivered April 1, 2020

GEORGE BURNS APPEAL FROM THE LITTLE RIVER
APPELLANT COUNTY CIRCUIT COURT
[NO. 41CR-17-109]
V.
HONORABLE CHARLES YEARGAN,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

LARRY D. VAUGHT, Judge

George Burns appeals his conviction by a Little River County Circuit Court jury of two

counts of sexual assault in the fourth degree. He challenges the court’s exclusion of certain

evidence and the denial of his motion for a new trial. We affirm on both points.

The victim, I.M., who was eighteen years old at the time of trial, testified that Burns is

her former stepmother’s brother-in-law and that she referred to him as her uncle. I.M. testified

that Burns sexually abused her on multiple occasions beginning when she was thirteen years

old.

Prior to trial, Burns filed a motion to admit evidence of I.M.’s other sexual conduct

pursuant to Rule 411 of the Arkansas Rules of Evidence and Arkansas Code Annotated

section 16-42-101 (Supp. 2019), known as the Arkansas rape-shield statute. Specifically, the

court ruled that the rape-shield statute prohibited Burns from presenting the following

evidence: I.M.’s claim of having given oral sex to a classmate, which the boy denied and the
school principal regarded as a factual impossibility; her claim of having had sex with two men

in Bowie County, Texas; an entry in her diary asserting that a man named C.J. Washington took

her virginity despite her statement to law enforcement that Burns took her virginity; her

statement in her diary that she didn’t report another sexual encounter because “no one would

believe me because I lie too much”; and her 2019 accusation that a resident of an outreach

shelter in Texarkana had sexually touched her, which shelter employees concluded she

fabricated.

At trial, I.M. testified that she and her siblings would often go to Burns’s house and

that he would take them deer hunting. She stated that when she was thirteen, Burns began

telling her how pretty she was and complimenting her body. She testified that when they would

go deer hunting together, he would kiss her and touch her breasts and vagina under her

clothing and that he once “put his finger in [her]” when they were hunting. She further testified

that while riding with Burns from Texarkana to Mena, she fell asleep in the truck and awoke

to Burns putting his hand into her pants. She stated that “[she] couldn’t get his hand out of

[her] pants so [she] just let him do whatever.” When I.M. was approximately fourteen or fifteen

years old, she and her sister spent the night at Burns’s house. While they were sleeping in

sleeping bags on the floor, Burns came into the room and “got on top of [I.M.] and put his

penis inside [her].” I.M. testified that it hurt and that she made noises by slapping her hands

on the ground loudly to wake her sister. Her sister woke up and told her aunt (Burns’s wife

Linda) that Burns was on top of I.M. I.M. testified that after that, she and her sister were not

allowed to spend the night at Burns’s house again.

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I.M. did not immediately report the abuse. She said that she thought she and Burns

were in a relationship and that Burns had told her not to tell anyone or he would go to jail.

Several months later, I.M. told her stepmother about the abuse and eventually also told her

grandmother. I.M.’s father then confronted Burns, who reportedly admitted, “I touched her

breasts, I touched her breasts. She raised her shirt up and I touched her breasts while she

masturbated.” I.M.’s father then contacted the police.

The jury also heard evidence that in 2017, while I.M.’s stepmother was hospitalized, a

family friend witnessed Burns making “sexual hand gestures” toward I.M. in the waiting room.

Burns testified that he had never sexually abused I.M. He explained that one night

when he exited the bathroom, he discovered I.M. with her shirt pulled up, exposing her breasts.

He stated that she was masturbating and that he had walked over to tell her to stop but had

then lost his balance, and his “right hand hit her left breast.”

Burns proffered much of the evidence that the court prohibited him from presenting

pursuant to the rape-shield statute. During an in camera examination, I.M. stated that she had

lied in her diary about C.J. Washington taking her virginity and acknowledged that there was a

diary entry in which she denied having sex with Burns but stated that she had written it to

mislead her sister. Burns also proffered the testimony of a school superintendent in Texas

who dealt with I.M.’s claim of oral sex with another student and would have testified that

video evidence showed that the boy was never near I.M. during the week she claimed the event

occurred. Similarly, Burns claimed that the operations manager for the shelter in Texarkana

would have testified that camera footage disproved the sexual-touching allegation I.M. made

against another resident and that I.M. became angry and irate when she was confronted about

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the issue. Finally, Burns proffered the testimony of an administrator from the Maud school

district that I.M. had claimed that she snuck out of school with C.J. Washington, which would

cast doubt on her statements to the court that the account in her diary regarding him was a

lie.

Burns generally objected to the inclusion of jury instructions for the lesser-included

offenses of sexual assault in the second degree and sexual assault in the fourth degree. He did

not request that the jury instruction for sexual assault in the fourth degree distinguish between

the felony and misdemeanor types of that offense. The circuit court then read the jury

instructions to the jury and included only felony fourth-degree sexual assault. The jury

convicted Burns of two counts of fourth-degree sexual assault and sentenced him to an

aggregate term of twelve years’ imprisonment.

Burns subsequently moved for a new trial, arguing that the jury instructions and verdict

forms for sexual assault in the fourth degree failed to distinguish between the Class D felony

and the Class A misdemeanor versions of the offense. He claimed that this ambiguity must be

resolved in his favor. The court denied the motion, and this appeal follows.

Burns’s first point on appeal is a challenge to the exclusion of certain evidence pursuant

to the Arkansas rape-shield statute.1 Specifically, he claims that the court erred in excluding

evidence that:

1. I.M. made false allegations that she performed oral sex on a boy at school;

1To
the extent that Burns argues that the exclusion of the rape-shield evidence
constituted a violation of his constitutional rights, he failed to obtain a ruling on this issue
below and is therefore barred from presenting it on appeal. It is the obligation of an appellant
to obtain a ruling from the trial court in order to preserve an issue for appellate review.
McCraney v. State, 2010 Ark. 96, at 7, 360 S.W.3d 144, 149.
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2. I.M. made false allegations about having intercourse with two men in Bowie County,
Texas;

3. I.M. lied in her diary that C.J. Washington “took her virginity”;

4. I.M. wrote in her diary about Burns abusing her as a child and then the entry was
scratched out, and she wrote that she did not tell anyone because no one would believe
her because she “lie[s] too much”; and

5. I.M. made false allegations against a man at a shelter in Texarkana.

Our standard of review for evidentiary rulings is that circuit courts have broad

discretion and that a circuit court’s ruling on the admissibility of evidence will not be reversed

absent an abuse of that discretion. Vance v. State, 2011 Ark. 392, at 6–7, 384 S.W.3d 515, 519

(citing Allen v. State, 374 Ark. 309, 287 S.W.3d 579 (2008)). More specifically, with regard to

evidence subject to the rape-shield statute, we have said that the circuit court is vested with a

great deal of discretion regarding whether evidence is relevant and should be admitted. Id. 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. Id.

Three of the pieces of evidence Burns sought to admit—items 1, 2, and 5—fall

squarely within the rape-shield statute and were properly excluded. Arkansas Code Annotated

section 16-42-101(b) prohibits defendants from introducing (1) 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,” and (2) evidence “concerning prior allegations of sexual conduct

by the victim with the defendant or any other person if the victim denies making the

allegations.” Here, I.M. denied making the allegation that she performed oral sex on a boy at

school, and she stated that the allegations against the two men in Bowie County and against

the man at the shelter in Texarkana were true. The exclusion of these items was authorized by
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the rape-shield statute, and we affirm the court’s decision to prohibit Burns from introducing

them. We also reject Burns’s argument that the circuit court abused its discretion in failing to

find pursuant to subsection (c) of the rape-shield statute that the probative value of this

evidence outweighed its prejudicial or inflammatory effect.

The remaining two pieces of evidence—the diary entry regarding losing her virginity

to C.J. Washington and the diary entry stating that no one would believe her if she reported

the abuse because she “lie[s] too much”—do not fall squarely within the rape-shield statute,

but Burns has not demonstrated prejudice from their exclusion. Here, these pieces of evidence

would only be relevant to attack I.M.’s credibility, and Burns did that by vigorously cross-

examining I.M. about other prior inconsistent statements she had made about Burns. He also

presented evidence showing that I.M. had motive to fabricate allegations against him because

she wanted to live with her grandmother. Furthermore, he presented multiple witnesses to

contradict I.M.’s testimony, including her own sister who testified that she never saw Burns on

top of I.M. on the night that I.M. claims Burns raped her. Moreover, Burns presented the

testimony of several witnesses to contradict I.M.’s claim that she never spent the night at

Burns’s house after the night he raped her. Burns’s wife also presented significant testimony

undercutting the claim of rape, stating that Burns had not been out of bed for more than

three minutes on the night in question and that he suffered from erectile dysfunction and

would not have been able to rape I.M. in the way she described.

Despite Burns’s strong attempt to discredit I.M., the jury believed her and convicted

him of two counts of fourth-degree sexual assault. It is impossible to say that admission of

the two diary entries would have changed the outcome of this case. I.M.’s testimony alone was

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sufficient to support Burns’s convictions. Burns’s own statement to I.M.’s father about

touching her breast and his testimony at trial asserting that he lost his balance and accidentally

grabbed I.M.’s breast significantly undermine his argument that I.M. was not credible and was

fabricating the allegations. Because Burns has not demonstrated prejudice from the court’s

exclusion of these two pieces of evidence, we affirm.

Burns’s second point on appeal is a challenge to the court’s denial of his motion for a

new trial based on the jury instructions. He claims that the court’s jury instructions failed to

differentiate between felony and misdemeanor versions of the offense of sexual assault in the

fourth degree. Burns acknowledges that he failed to contemporaneously object to the jury

instructions but argues that the court erred in denying his post-trial motion.

It is well settled that a party must object and proffer a jury instruction in order to later

appeal the instructions given to the jury. Douglas v. State, 2017 Ark. 70, at 4, 511 S.W.3d 852,

855. A motion for a new trial cannot be used to revive an issue that was not properly preserved

for appeal. See, e.g., Wooten v. State, 2016 Ark. 376, at 5, 502 S.W.3d 503, 507. In Tosh v. State,

278 Ark. 377, 381, 646 S.W.2d 6, 8 (1983), the Arkansas Supreme Court rejected a similar

challenge to the verdict forms used in a criminal trial. The court held that the issue was not

properly before the circuit court because no objection was made to the verdict forms until

after the trial had been concluded, at which time it was raised in a motion for a new trial. The

Arkansas Supreme Court has often held that objections to a jury instruction must be made

before the jury retires and objections made after the jury retires to deliberate are not timely.

Id. (citing Hickory Springs Mfg. Co. v. Emerson, 247 Ark. 987, 448 S.W.2d 955 (1970); Sunray

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Sanitation v. Pet, Inc., 249 Ark. 703, 461 S.W.2d 110 (1970); Golden v. State, 265 Ark. 99, 576

S.W.2d 955 (1979)).

Affirmed.

KLAPPENBACH and BROWN, JJ., agree.

Jeff Rosenzweig, for appellant.

Leslie Rutledge, Att’y Gen., by: Brooke Jackson Gasaway, Ass’t Att’y Gen., for appellee.

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