Page:Herren v. State, 2018 Ark. App. 528.pdf/4

 Sec. 16-42-101(b) applies." On appeal, Herren argues that this evidence was improperly excluded.

The crime of rape encompasses sexual intercourse or deviate sexual activity with a person who is incapable of consent because she is physically helpless or mentally incapacitated. Ark. Code Ann. § 5-14-103(a)(2) (Supp. 2017). Deviate sexual activity is "any act of sexual gratification involving the penetration, however slight, of the labia majora  of one person by any body member or foreign instrument manipulated by another person." Ark. Code Ann. § 5-14-101(1)(B). "Mentally incapacitated" means that a person is temporarily incapable of appreciating or controlling her conduct as a result of the influence of a controlled or intoxicating substance that renders her unaware a sexual act is occurring. Ark. Code Ann. § 5-14-101(5)(B). A person is "physically helpless" under the statute if she is unconscious, physically not able to communicate, or otherwise unaware that a sexual act is happening. Ark. Code Ann. § 5-14-101(7).

The rape-shield statute broadly excludes evidence of prior sexual conduct. Such evidence is "not admissible by the defendant to prove consent or any other defense, or for any other purpose." Ark. Code Ann. § 16-42-101(b) (1999). The circuit court is vested with a great deal of discretion in determining whether evidence is relevant and will not be reversed in deciding the admissibility of rape-shield evidence unless its ruling constitutes clear error or a manifest abuse of discretion. State v. Cossio, 2017 Ark. 297, at 5, 529 S.W.3d 620, 623.