Cite as 2022 Ark. App. 357

ARKANSAS COURT OF APPEALS

DIVISION II

No. CR-21-439

CHARLES STEPP

APPELLANT

V.

STATE OF ARKANSAS 

APPELLEE

Opinion Delivered September 28, 2022

APPEAL FROM THE FAULKNER

COUNTY CIRCUIT COURT 

[NO. 23CR-20-313]

HONORABLE TROY B. BRASWELL,

JR., JUDGE

AFFIRMED

RAYMOND R. ABRAMSON, Judge

Charles (“Charlie”) Stepp was convicted by a Faulkner County Circuit Court jury of 

three counts of raping his young daughter, B.W. The circuit court, following the jury’s 

sentencing recommendations, imposed forty-year sentences on each count to run 

consecutively. In appealing his convictions, Stepp’s sole argument centers on the circuit 

court’s denial of his pretrial rape-shield motion. We affirm. 

On April 16, 2019, B.W., who was eight years old at the time, reported to the staff at 

Eastside Elementary in Greenbrier that she had been raped by her father, Charlie. During 

lunch in the cafeteria that day, she told a paraprofessional she had gotten in trouble at home 

and that her mom encouraged her dad to take his private parts and stick it into her private 

parts. School staff also testified that they noticed B.W. was uncomfortable or had difficulty 
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sitting and complying with staff direction to do so at school that day, which was not a normal 

issue for her. 

A jury trial was held on May 19–20, 2021. The State presented evidence that B.W. 

was examined at Arkansas Children’s Hospital where her labia minora and hymen were 

observed to have erythema—or redness—and tenderness, and B.W. was experiencing pain or 

discomfort as a result. Dr. Karen Farst, a pediatrician who specializes in child abuse,

examined B.W. and noted that evidence was collected with a sexual-assault kit. Dr. Farst 

stated that the findings from the examination were consistent with a penetration injury 

caused by sexual abuse. The evidence collected included B.W.’s underwear, which was 

submitted to the Arkansas State Crime Laboratory, along with other evidence. The presence 

of seminal fluid was detected in her underwear, and YSTR-DNA analysis of the underwear 

effectively excluded anyone except Stepp or his paternal relatives.

At trial, eleven-year-old B.W. testified that in April 2019, she reported to teachers at 

Eastside Elementary “[m]y dad put his private in mine.” B.W. testified that the incident had 

happened at her home in Greenbrier, when her mother, Nancy, dragged her into her father 

Charlie’s room. Her father then inserted his private into hers as a form of punishment while 

her mother watched. He did not stop when she asked him to, but he stopped when her 

mother said, “Stop, that’s enough.” B.W. observed something white, which came from her 

father’s “private” after he had stopped. B.W. took a shower afterwards, but she wore the 

same clothes to school. 
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B.W. recalled that she had been raped by Stepp “countless” times, always in Charlie’s 

room. She specifically recalled another incident when she was five years old when her mother 

was also present for the rape in Charlie’s room. B.W. further recalled another incident when 

her father put a clear gel from a container on her private parts. B.W. identified a drawing 

she had made during the investigation, which depicted her on a bed, while Charlie was 

putting gel on her, and her mother was sitting beside the bed. B.W. also testified that she 

had circled what she meant by “private” on diagrams of male and female anatomy and stated 

that when Charlie put his private into her private, it hurt. 

At the conclusion of the two-day trial, the jury found Stepp guilty of all three counts 

of rape. He was sentenced to a total of 120 years’ imprisonment in the Arkansas Department 

of Correction. This timely appeal followed. 

Stepp appeals the circuit court’s denial of his motion to introduce evidence otherwise 

excludable by Arkansas Code Annotate section 16-42-101 (Supp. 2021), the “rape- shield” 

statute. Under the rape-shield statute, the prior sexual conduct of a victim is not admissible 

by the defendant “to attack the credibility of the witness, to prove consent or any other 

defense, or for any other purpose.” Ark. Code Ann. § 16-42-101(b). The purpose of the 

statute “is to shield victims of sexual abuse or rape from the humiliation of having their 

personal conduct, unrelated to the charges pending, paraded before the jury and the public 

when such conduct is not relevant to the defendant’s guilt.” Woodall v. State, 2011 Ark. 22,

at 4, 376 S.W.3d 408, 411. 
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The statute does have a mechanism through which the circuit court may consider 

whether usually excluded evidence is admissible. This requires the circuit court to hold an 

in camera hearing to determine whether such evidence would be relevant to a fact at issue 

and whether the probative value outweighs its inflammatory or prejudicial nature. Ark. Code 

Ann. § 16-42-101(c). The circuit court has discretion to determine whether such evidence is 

relevant, and its ruling will not be reversed unless the decision constitutes clear error or a 

manifest abuse of discretion. Woodall, supra. 

In Stepp’s pretrial motion, he argues that under the rape-shield statute, he should be 

permitted to present evidence at trial of the alleged victim’s prior sexual conduct with 

another family member––her male cousin, H.S., who was also a minor. Stepp reserved 

disclosure of any details for the in-camera hearing. The State responded to the written 

motion and argued that any evidence would be inadmissible under governing precedent and 

Rule 411 of the Arkansas Rules of Evidence. 

Under Arkansas Rule of Evidence 411(b), “evidence of a victim’s prior allegations of 

sexual conduct with the defendant or any other person, which allegations the victim asserts 

to be true . . . is not admissible by the defendant . . . to attack the credibility of the victim.” 

Even so, after holding a hearing and entering a written order, the circuit court can admit the 

evidence if (i) it is relevant and (ii) its probative value outweighs its inflammatory or 

prejudicial nature. Ark. R. Evid. 411(c)(2)(C). Thus, the rule is not a total bar to evidence of 

a victim’s sexual conduct but makes its admissibility discretionary with the circuit court 

under the procedures set out in the rule. State v. Kindall, 2013 Ark. 262, at 6, 428 S.W.3d 
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486, 490. In determining whether the evidence is relevant, the circuit court is vested with 

much discretion, and we will not overturn the circuit court’s decision unless it constituted

clear error or a manifest abuse of discretion. Id.

The State also filed a separate motion in limine to exclude the same evidence under 

Rule 403 of the Arkansas Rules of Evidence. Rule 403 provides: “Although relevant, 

evidence may be excluded if its probative value is substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of 

undue delay, waste of time, or needless presentation of cumulative evidence.”

On the morning of trial, Stepp’s motion was heard by the court. Stepp argued that, 

during an investigatory interview of B.W., she referenced an incident involving H.S. This 

incident allegedly occurred in the weeks prior to the April 2019 disclosure of the alleged rape 

by her father. This evidence, Stepp argued, was relevant and admissible regarding a defense 

that B.W. gained her sexual knowledge from the prior incident. Stepp contended that “most 

children would not know what sex is or not know what a penis is and would not be familiar 

with sexual acts [and] my client’s defense in this matter involves him simply stating that [the 

rapes] did not occur.” Thus, he argued, “the child’s knowledge or information about those 

things are from [H.S.]; they are not from [Stepp].” 

In making his argument, Stepp relied on State v. Townsend, 366 Ark. 152, 158, 233 

S.W.3d 680, 685 (2006), in which our supreme court approved a five-factor test to consider 

whether the prior sexual conduct of a child is admissible to prove an alternate source of the 

child’s sexual knowledge. The Townsend factors are “(1) that the prior act clearly occurred; 
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(2) that the acts closely resembled those of the present case; (3) that the prior act is clearly 

relevant to a material issue; (4) that the evidence is necessary to the defendant’s case; (5) that 

the probative value of the evidence outweighs its prejudicial effect.” Id. at 158, 233 S.W.3d 

at 685. With this precedent in mind, we turn to the present case.

Stepp maintained that the prior sexual incident between B.W. and H.S. had “clearly 

occurred” in light of the fact that the State did not deny B.W.’s purported allegations 

regarding the prior incident; therefore, the first Townsend factor was satisfied. Stepp argued 

that the State, having based its criminal prosecution of Stepp on B.W.’s allegations against 

him, could not take an inconsistent position and deny B.W.’s allegations about a prior 

incident with her cousin. Stepp also argued that the two incidents closely resembled each 

other, the second Townsend factor, because B.W. made “identical” statements that her 

cousin—and later, Stepp—each had put his private into her private. Stepp argued that the 

victim’s allegations were “clearly relevant,” the third factor under Townsend, because the prior 

incident was an alternate explanation of the source of B.W.’s sexual knowledge, which, in 

turn, supported Stepp’s claim of innocence. On this basis, Stepp argued that he was entitled 

“to cross-examine and confront [B.W.] regarding those issues.” 

Regarding the fourth Townsend factor, Stepp similarly argued that any evidence as to 

the source of B.W.’s sexual knowledge was necessary to his client’s defense. As to the final 

Townsend factor, Stepp argued that the probative value of any evidence of an alternate source 

of B.W.’s sexual knowledge outweighed any prejudice from “[s]imply asking the child [at 
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trial] regarding things that happened with her cousin within a month of this incident 

occurring[.]” 

In response, the State proffered an investigatory report regarding the incident 

involving H.S. as well as DNA-analysis reports from the Arkansas State Crime Laboratory. 

The State argued that the defendant failed to meet his burden under Townsend as well as 

pursuant to Rule 411 of the Arkansas Rules of Evidence. The State also opposed Stepp’s 

motion on the basis of the inadmissibility of the evidence under Rule 403 of the Arkansas 

Rules of Evidence. After Stepp replied to the State’s argument, the circuit court denied his 

motion on multiple grounds.

Primarily, the court ruled that Stepp failed to present evidence sufficient to establish 

admissibility under Townsend. The circuit court cited precedent, including Townsend, in 

which the Arkansas Supreme Court held “that the defense had not proven that the acts—

prior act—had clearly occurred simply because there were prior allegations.” The circuit court 

ruled that Stepp’s argument surrounding B.W.’s allegations involving her cousin—including 

the fact there had been no conviction—had not satisfied the first Townsend factor that there 

was “clear proof that a prior incident had, in fact, occurred.” 

The circuit court then ruled that Stepp also had not met his burden on any other 

Townsend factor, starting with “the second [Townsend] factor—that the acts closely resembled 

those of the present case.” While finding “some similarities,” the pending charges addressed 

criminal acts by an adult against a child, while the alleged prior incident was between two 

children and, the court found, the only “basic similarity is that there was some sort of sexual 
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contact.” The court ruled that was not “sufficient enough to show that [the acts] closely 

resembled each other.” 

On the remaining Townsend factors, the court ruled, as to the third factor, “any 

interaction that [B.W.] had, [and] what may or may not have happened with [H.S.], is not 

relevant to whether [Stepp] raped the victim.” Regarding the fourth and fifth factors, the 

circuit court found Stepp’s argument unconvincing in that “the evidence [of the prior 

incident] is necessary to prove that the defendant is not guilty[.]” The court ruled that the 

probative value of the alleged evidence was “outweighed by the prejudicial effect of the 

juvenile victim having to potentially talk about a collateral issue or another alleged incident 

that may or may not have occurred.” 

After these rulings based on Townsend, the circuit court additionally ruled that not 

only had Stepp failed to put on evidence that the prior incident clearly occurred, but also “if 

a defendant wants to address a prior incident for basis of [the victim’s purported sexual] 

knowledge,” the incident “must, in fact, be a prior occurrence.” The circuit court found that 

“[t]he allegations are that there were incidents [of rape] that occurred years before the [H.S.] 

incident [which] means that the [H.S.] incident is not a prior act to those two counts [and] 

for that reason, the defense argument fails.” The court also ruled that the evidence of the 

alleged prior incident with H.S. was irrelevant because the charges were that Stepp had raped 

his child and, thus, “[w]hether or not this juvenile engaged in any consensual acts with 

another child is irrelevant because this is not a case where consent is an issue.” 
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The court concluded its rulings on the rape-shield issue by noting that DNA evidence, 

which excluded B.W.’s cousin and any other person except Stepp or a paternal relation of 

Stepp’s, also played a role. The court ruled that “from the cuttings [of the victim’s underwear] 

that were taken—and that’s been introduced by the exhibits—they were only introduced for 

the purposes of this in-camera hearing which further supports the idea that the defense has 

not proven that these prior incidents with [H.S.] did in fact occur.” The court then moved 

to other pretrial issues, the trial commenced immediately thereafter, and Stepp was convicted

by a jury. 

On appeal, Stepp argues that the circuit court erred by excluding evidence that B.W. 

obtained her sexual knowledge from an alleged prior incident with H.S. Like his argument 

below, his appellate argument centers on the Townsend case, focusing on the admissibility of 

evidence of a child’s prior sexual knowledge when necessary to “prevent the jury from 

assuming that the defendant is responsible for the child’s lack of sexual innocence.” 

Townsend, 366 Ark. at 157–58, 233 S.W.3d at 684. 

A failure to meet any one factor means the evidence proffered by the defendant does 

not fall within the rape-shield exception. See Joyner v. State, 2009 Ark. 168, at 7, 303 S.W.3d 

54, 58 (holding that when one Townsend factor is not met, it is unnecessary to discuss 

remaining factors). On review, Stepp must establish that the circuit court’s evidentiary 

rulings regarding each of the five factors constituted clear error or a manifest abuse of 

discretion. See Sweeten v. State, 2018 Ark. App. 590, at 2, 564 S.W.3d 575, 577. A circuit 

court has a great degree of latitude and discretion in reaching such determinations. Id.
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Further, an “abuse of discretion is a high threshold that does not simply require error in the 

trial court’s decision, but requires that the trial court act improvidently, thoughtlessly, or 

without due consideration.” Dowdy v. State, 2015 Ark. 35, at 3.

Under an analysis of the Townsend factors, we do not find Stepp’s appellate argument 

persuasive. The first required Townsend factor is whether a “prior act clearly occurred.” The 

circuit court found that Stepp failed to prove this factor. We note that the Townsend factors 

were adopted because “a comparison of the child’s descriptions of the respective sexual 

encounters . . . provides a basis for an assessment and comparison of the child’s degree of 

sexual knowledge at the time of each incident.” State v. Blandin, 370 Ark. 23, 28, 257 S.W.3d

68, 72 (2007) (quoting Townsend, 366 Ark. at 158, 233 S.W.3d at 685).

The evidence indicated that Stepp had raped B.W. on at least three occasions over a 

period of several years. The alleged “prior act” between B.W. and her cousin, H.S., allegedly 

occurred after Stepp had already raped B.W. twice. Consequently, the alleged prior act 

between B.W. and H.S. was not a prior act as contemplated by the first Townsend factor. 

Stepp has failed to meet the first factor; therefore, it is not necessary to discuss the 

remaining factors. See Joyner, supra. Because Stepp has failed to meet the test set out in

Townsend, it was not a manifest abuse of discretion for the circuit court to exclude the 

evidence at issue here. We affirm. 

Affirmed.

HARRISON, C.J., and HIXSON, J., agree.

Robert M. “Robby” Golden, for appellant.
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Leslie Rutledge, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.