Tilmon v. State

2022 Ark. App. 291

646 S.W.3d 286

Dewayne TILMON, Appellant

v.STATE of Arkansas, Appellee

No. CR-21-548

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered June 1, 2022

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

Leslie Rutledge, Att'y Gen., by: Walker K. Hawkins, Ass't Att'y Gen., for appellee.

KENNETH S. HIXSON, Judge

Appellant Dewayne Tilmon appeals after he was convicted by a Garland County Circuit Court jury of two counts of rape. He was sentenced to serve a total of 1,200 months’ imprisonment as a habitual offender in the Arkansas Department of Correction. On appeal, appellant does not challenge the sufficiency of the evidence of his conviction. Instead, he argues that his conviction should be reversed and remanded for a new trial because the circuit court "abused its discretion and prejudiced [him] when it restricted his ability to ask the alleged victim about her knowledge of DNA evidence and its importance in rape cases." We affirm.

I. Relevant Facts

Appellant and Laschamecia Thomas were in a relationship together and began living together in October 2017. Laschamecia had three daughters living with her at that time, Ro.T., Ro.J., and Ri.J. Ro.J. later revealed to her mother that appellant had been raping her; however, Laschamecia did not believe her, saying she needed DNA evidence. Subsequently, Ro.J.’s counselor called the child-abuse hotline as a result of what she heard in Ro.J.’s July 2018 counseling session. After an investigation, appellant was arrested and charged by amended felony information with two counts of rape in violation of Arkansas Code Annotated section 5-14-103 (Repl. 2013), a Class Y felony. The State further sought an enhanced sentence under the habitual-offender statute, Arkansas Code Annotated section 5-4-501(a) (Supp. 2021). A jury trial was held on May 19–20, 2021.

Appellant filed a written motion in limine on May 18, 2021, the day before trial. Apparently, Ro.J.’s biological father had previously been convicted of raping her years before the allegations against appellant arose. Appellant conceded that the disclosure that Ro.J. was also a victim in her father's case was precluded under the rape-shield law, codified at Arkansas Code Annotated section 16-42-101 (Supp. 2021). Instead, appellant requested "preliminary approval from the Court to present evidence via testimony of the facts surrounding the minor complainant's biological father's arrest, prosecution, and conviction on a separate offense of rape that is unrelated to the charge before the Court." He argued in his written motion that the evidence was relevant because Ro.J. and Laschamecia made "repeated reference[s] to the minor complainant's father's case when speaking to law enforcement regarding the case before the Court."

A hearing on appellant's written motion in limine was held in chambers immediately before trial. Appellant's counsel clarified that he wished to ask either Laschamecia or Ro.J. about Ro.J.’s father's conviction for rape. When the circuit court asked why that evidence would be relevant to this case, the following exchange occurred:

[ DEFENSE COUNSEL ]: During their interviews they mention the fact that the minor victim's father has been convicted - arrested, prosecuted and convicted of Rape involving this minor victim. And in that case they talk about how the evidence was collected and that he was prosecuted via DNA. There was a discussion between the minor victim and her mother about trying to collect DNA or trying to collect some type of evidence against my client showing that she was familiar with the process of – without getting too graphic, Your Honor - she was familiar and knew about the sexual acts in the sense of she knew that a man could ejaculate, produce semen, and that there would be DNA that could be collected for prosecution. I do not want to get into the fact that the minor victim in this case is the minor victim in her father's case. That would be rape shield. Understood. But I can - I think I should be able to question her about her father's conviction that she's aware that he was prosecuted for a Rape charge and in that case they prosecuted him because they were able to find DNA.

THE COURT : How is that relevant?

[ DEFENSE COUNSEL ]: It's relevant because she is aware of how that process went about with her father.... She is aware of how evidence can be collected.

....

THE COURT : Did she?

[ DEFENSE COUNSEL ]: She did not collect any evidence. But, Your Honor, she also told law enforcement that there were occasions where my client allegedly had ejaculated and cleaned himself up either on a sheet or a towel or a blanket. If she was aware of her father's prosecution, then she could've been aware that that would've been DNA left on those items and she could've collected those items.... There was evidence right there and she chose not to collect it. Either it's not there or she just chose not to collect it.... It goes to her knowledge and understanding of how - of the sexual process. She understands that a man can ejaculate, produce sperm, and that sperm has DNA. She's aware of that.

....

THE COURT : Her father's case is irrelevant to this case. What you are trying to do is use this to bring in another case. Your point that you're going to make is that she should have been collecting evidence when she was being raped by the Defendant? ... And that, therefore, because she didn't collect evidence, she wasn't raped? Is that your point?

[ DEFENSE COUNSEL ]: Somewhat. In a roundabout way.

....

[ DEFENSE COUNSEL ]: Let me ask you this: If I do not mention that is her father but she has awareness of what DNA is, can I question her on that?

THE COURT : Well, I think you can ask her, "Do you know what DNA is?" ... Yeah, I don't think there's any problem with that. But we're not getting into another rape case, her as a victim. That is all protected and his conviction is irrelevant to this case. This is not the Defendant who was previously convicted....

This is her father. Which only goes to confuse the issue of this trial which is this Defendant's trial.... I mean you can ask her, I suppose, did you collect the sheets and the things that were stained by the Defendant's semen when she had sex at twelve years old - did you collect them? ... After you say, "Do you know what DNA is?" And if she says, "Yes," then you say, "Well why didn't you collect all the evidence."

....

[ DEFENSE COUNSEL ]: So I just want, for record purposes, the denial is not based on rape shield. The denial is based on relevance.

THE COURT : Totally relevance.... Now the DNA, maybe not so much.... I mean I don't know how you all are gonna get that in and if there's an objection to what you're planning on doing then you need to come and see me before it happens. But I think she's a sixteen year old girl, you can ask her whether she knows about DNA, and I think it's a perfect question to say, "Well if you know what DNA is, then why didn't you collect the semen when the Defendant raped you?" ... But we are not gonna talk about her father's conviction unless she would open the door to that.

Thus, the circuit court ruled that appellant was authorized to inquire whether Ro.J. knew about DNA and why she failed to collect any DNA evidence.¹ However, the circuit court specifically ruled that any inquiry into Ro.J.’s father's conviction was irrelevant and would confuse the jury.

Because appellant does not challenge the sufficiency of the evidence, it is unnecessary to give a detailed account of each witness's testimony. However, a brief description is helpful to put appellant's point on appeal in context. At trial, Ro.J.’s counselor, two sisters, and mother testified in addition to law enforcement. No one specifically saw appellant rape Ro.J., but some of the witnesses testified to odd behavior that might have corroborated Ro.J.’s allegations. Ro.T., Ro.J.’s elder sister, testified that she saw appellant and Ro.J. "always together" and "in each other's personal space." For example, Ro.T. testified that she saw Ro.J. siting on the washing machine and on the roof of appellant's car with her legs on opposite sides of appellant. Another time, Ro.T. saw Ro.J. and appellant on the couch in the dark. Appellant had his hand on Ro.J.’s leg, and Ro.J.’s legs were on opposite sides of appellant. Ri.J., Ro.J.’s younger sister, testified that she found Ro.J. and appellant in the kitchen pantry with the door closed. She described numerous other instances where she found Ro.J. and appellant alone together. Laschamecia described an incident in which Ro.J. had her bedroom door locked. When Ro.J. opened the door, she was naked with a blanket wrapped around her. Laschamecia then found appellant hiding in Ro.J.’s closet, and appellant offered that he was having a discussion with Ro.J. about giving her an allowance as his excuse for being in Ro.J.’s bedroom.

Immediately before Ro.J. testified, the parties discussed whether defense counsel wished to proffer any testimony from Ro.J. regarding appellant's motion in limine, and the following exchange occurred:

[ DEFENSE COUNSEL ]: There was discussion yesterday afternoon about proffering. I think if we do elect to proffer it could be done later after her direct examination. I spoke with Mr. Tilmon this morning. I'm slowly more and more leaning toward not doing a proffer at all just because I'm not a hundred percent confident what the answers are gonna be. Cause I think I have to actually elicit the answers from her, so.

[ THE STATE ]: And, Your Honor –

THE COURT : So you want some more time to think about it?

[ DEFENSE COUNSEL ]: Well if you don't know what the answer's gonna be you shouldn't ask the question.

THE COURT : Yeah, who said that?

[ DEFENSE COUNSEL ]: I can't remember but I've always tried to rely on it.

THE COURT : The king of cross-examination, right?

Thereafter, the State offered Ro.J.’s testimony, and although defense counsel cross-examined Ro.J., he did not proffer any...