Page:Herren v. State, 2018 Ark. App. 528.pdf/3

 she knew it was happening." Herren testified that BLR had a buzz but was "definitely conscious." He said that she knew what she was doing and told him to do it.

BLR testified that, the next morning, she woke up "feeling like death" and did not remember what had happened. The other girls told her what happened and showed her the photos and videos they took. BLR became upset and asked to be taken home. After telling her mother what happened, BLR went to Arkansas Children’s Hospital for a rape test and evaluation.

Herren was convicted of rape and timely appeals, and the issues in this appeal revolve around evidence not yet summarized. This evidence was excluded from trial and not considered by the jury. Before trial, Herren had filed an extensive motion and incorporated brief for a rape-shield hearing with offers of proof on twenty-five areas of testimony he wanted to develop at trial. He received unfavorable rulings in almost every area; however, on appeal, he narrows his discussion to BLR's sexual conduct with Herren on the night of the alleged rape.

Specific to this appeal, the circuit court ruled that Herren would not be allowed to introduce evidence that before Herren digitally penetrated BLR, she was asking him for sex, masturbating in front of him, offering him oral sex, attempting to undo his shorts, and touching his penis through his shorts. Specifically, the circuit court ruled that "[t]his is not admissible under A.C.A. Sec. 16-42-101 unless relevancy has been determined. Whether this assertion is true or not, the Court finds it is not relevant and the prohibition of A.C.A.