Ivey v. State

¶1concurring in part and dissenting in part.

¶2I respectfully dissent from the majority’s determination that the trial court’s grant of the state’s motion in limine under the Rape Shield Statute necessitates a reversal of Ivey’s aggravated sodomy conviction.

¶3The Rape Shield Statute bars admission of evidence of a rape victim’s prior sexual behavior, even if it directly involves the participation of the defendant, if it does not also support an inference or conclusion that the defendant could have reasonably believed that the victim consented, to the conduct of which the defendant is accused.19 The Rape Shield Statute “ ‘is a strong legislative attempt to protect the victim-prosecutrix in rape cases by the exclusion of evidence which might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused.’ [Cit.]”20 We will not reverse a trial court’s decision to exclude evidence of a victim’s past sexual behavior unless the court abused its discretion; moreover, we accept the factual findings and credibility determinations made by the court at pre-trial hearings on the admissibility of evidence unless they are clearly erroneous.21

¶4At the hearing on the state’s motion in limine, Ivey testified that he had known the victim, S. R., for about five years and that on numerous occasions he had paid her money to perform oral sex or engage in sexual intercourse. According to Ivey, on the evening in *386question, he located S. R. in an apartment and asked her to take a ride with him so that she could perform oral sex. Ivey testified that after she performed oral sex on him, they engaged in vaginal and then anal sexual intercourse and that all of their sexual relations had been consensual.

¶5S. R. acknowledged that on prior occasions she had performed oral sex on Ivey and had engaged in vaginal sexual intercourse with him for money; she denied having ever before engaged in anal sexual intercourse with him. S. R. testified that when Ivey came to the apartment on the evening in question, she told him that she could not have sex with him because she was on her period. But he told her that he would pay her just to ride around with him in the car and talk to him, and she agreed. According to S. R., Ivey forced her to perform oral sex on him, and to engage in vaginal and anal sexual intercourse, after she got into the car.

¶6At trial, defense counsel argued that evidence that S. R. had had sex with Ivey for money on numerous prior occasions was highly relevant to the question of whether he reasonably believed she was consenting to the acts that formed the basis for the present charges against him. In reliance on Davis v. State,22the state argued that such evidence was inadmissible. Agreeing with the state, the trial court ruled that evidence of the victim’s past sexual conduct was barred by the Rape Shield Statute.

¶7Although the majority concludes that the evidence sought to be introduced by Ivey had a direct bearing on S. R.’s motive to fabricate the allegation of rape to avoid being prosecuted for the crime of prostitution, the defense did not seek to introduce evidence of Ivey and S. R.’s prior relationship for such purpose. That is understandable; given the fact that the arresting officer observed no sexual activity between S. R. and Ivey, it is difficult to envision how she could have had a motive to make a false claim of rape to avoid prosecution for prostitution. Therefore, Richardson v. State,23cited extensively in the majority opinion, is inapposite.

¶8Before the jury, City of Gainesville Police Officer Jonathan Williams testified that he was on motorcycle patrol when Ivey’s car passed him at a high rate of speed. As Officer Williams activated his emergency lights to stop Ivey for speeding, S. R. burst out of the passenger door, fell on her knees, and yelled that she had been raped.

¶9S. R. testified that Ivey drove her to a remote area, stopped the car, grabbed her hair, “slammed [her] head down onto his penis,” and forced her to perform oral sex. He then made her remove her pants, *387put his hand around her neck as though he were choking her, and inserted his penis in her vagina. After several minutes, he told her to turn around and get on her knees, and he “rammed” his penis into her anus. Because S. R. was on her period, she was wearing a sanitary napkin. S. R. testified that, before Ivey raped her, she removed it and later threw it out the car window. It was subsequently recovered by police.

¶10After the incident, police took S. R. to a medical center where a rape examination was performed. The nurse performing the examination observed erythema (or redness) on S. R.’s neck and shoulder, which appeared to have been caused or contributed to by physical assault. The nurse also observed menstrual blood in her vagina and nonmenstrual blood in her rectal area. S. R.’s anal bleeding, still active at the time of the examination, was described by the nurse as “very extensive.” Extensive tears around the anal opening and hemorrhoidal tissue, caused by the recent application of force consistent with sexual assault, were also observed.

¶11One might think that in a rape prosecution, evidence that the complainant had previously engaged in consensual sexual relations with the defendant for money would be invariably admissible. Davis24 and Williams,25however, teach otherwise.

¶12The defendant in Williams was convicted of committing rape and aggravated assault on two victims, G. J. and A. W. State’s evidence showed that Williams had physically assaulted both G. J. and A. W, causing each of them visible injuries. Williams sought to admit his own testimony that on prior occasions both G. J. and A. W. had agreed to have sex with him in exchange for money or drugs, as well as testimony that other witnesses had seen both women have sex with other men in exchange for money or drugs. Williams admitted hitting A. W. but insisted that he did so after they had had sex; he denied hitting G. J. Both G. J. and A. W. admitted that they had previously had sex with other men in exchange for money or drugs; but they denied having had sex with Williams before he attacked them on the day in question. The trial court found that the victims’ past sexual behavior neither directly involved Williams nor supported an inference that he had reasonably believed that they consented to have sex with him. We refused to disturb the trial court’s credibility or relevancy determinations; and, citing Davis, we affirmed.

¶13In Davis, the defendant and two other men raped a woman and forced her to orally sodomize them. The victim escaped by running naked through the woods to a house. The defendant claimed that the *388victim volunteered to have sex with the men for money, and that she had had sex with him for money or drugs on numerous prior occasions. We affirmed the trial court’s exclusion of evidence of prior sexual activity between the defendant and the victim, holding:

In light of the victim’s testimony, the trail of clothing left near the crime scene, and the evidence of her injuries, we cannot say that Davis’ claim to prior consensual sex with her substantially supports the conclusion that he reasonably believed she consented on the night of the offense. [Cit.] Nor does justice mandate the admission of such testimony. Accordingly, we decline to find that the trial court abused its discretion.26

¶14The facts in Jackson v. State27were quite similar to those in Davis. In the former case, Jackson confronted a woman on the street because he believed she had failed to pay him for cocaine he had provided to her. At the time, the woman was in possession of neither money nor cocaine. As a result, Jackson and a number of male cohorts subjected the woman to a series of brutal sexual and physical assaults in view of a crowd of people. The trial court allowed Jackson to testify that he and the woman had a prior relationship in which they exchanged sex for drugs. On appeal, Jackson complained of the trial court’s refusal to allow him to present testimony from other witnesses concerning his prior relationship with the woman. We found no error, because Jackson had not followed the procedure set forth in the Rape Shield Statute for the admission of such testimony by any witness other than himself. If the trial court in Jackson had considered Davis, it would have been authorized to find Jackson’s testimony inadmissible as well.

¶15In this case, the trial court was authorized to find that S. R. escaped from Ivey by jumping out of his moving car. And she sustained verifiable injuries consistent with her claim that she had been physically and sexually assaulted. Under the circumstances, the trial court in applying the law as set forth in Davis was authorized to find that S. R.’s past sexual behavior, though involving the participation of Ivey, did not support an inference that he reasonably believed that she consented to the conduct of which he was accused on the occasion in question, and that evidence that she was a prostitute would reflect adversely on her character more than it would contribute to the issue of the defendant’s guilt or innocence.

¶16Moreover, the trial court’s grant of the state’s motion in limine did not unduly hamstring the defense. At trial, S. R. acknowledged that, although she had agreed to drive around with Ivey in his car in the middle of the night, she did not know his last name or his address or telephone number. Ivey was charged with aggravated oral sodomy and rape, as well as aggravated anal sodomy. The jury found him not guilty of the former two offenses and guilty of the latter. If the trial court had denied the state’s motion in limine, it would appear that the evidence presented to the jury would have shown that Ivey had previously paid S. R. to perform oral sex and engage in sexual intercourse (which formed the basis for the offenses of which he was acquitted) but not anal sodomy (which formed the basis for the offense of which he was convicted). Therefore, although I recognize that the result is counterintuitive, I find that under the facts of this rape prosecution, the trial court did not commit a harmful abuse of discretion in prohibiting the defense from showing that the complaining witness and defendant had previously been involved in a prostitute/customer relationship.

¶17Therefore, although I concur in Divisions 1 and 3,1 dissent from Division 2 and the judgment.

¶18I am authorized to state that Judge Miller and Judge Ellington join in this dissenting opinion.