Page:Herren v. State, 2018 Ark. App. 528.pdf/6

 the res gestae of the case. Id. The circuit court ruled that Cossio could not use this evidence to show that the victim consented to the contact but admitted the evidence anyway, as res gestae, so that the jury would understand the nature of the relationship between the parties. Id.

On appeal, the Arkansas Supreme Court reversed and remanded, holding that the circuit court abused its discretion in admitting evidence of the victim's prior sexual conduct under the res gestae exception because Cossio failed to demonstrate how evidence of the victim’s sexual conduct on the day before the offense was probative of whether Cossio raped her the next evening while she was physically helpless and incapable of consent. Id. at 7–8, 529 S.W.3d at 624–25.

Herren argues, and we agree, that Cossio is distinguishable. The evidence excluded in Cossio involved sexual activity the victim had with a third party the night before. Here, the excluded evidence is alleged sexual activity between the same parties on the same night as the charged conduct. Herren asserts the activity took place approximately ten minutes before the penetration.

Instead, we agree with Herren that the above evidence is res gestae and that excluding it was clear error. Kemp v. State is instructive. 270 Ark. 835, 606 S.W.2d 573 (1980). In Kemp, the victim was the babysitter for the defendant and his wife. Id. The defendant was charged with rape. Id. Kemp asserted consent as his defense and sought to introduce evidence that on nights he had taken the victim home, they had "necked," she had put her hand on his penis, and he had rubbed her breasts. Id. at 838–39, 606 S.W.2d