# FILED
October 20, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE (HEARD AT MORRISTOWN)

FOR PUBLICA

TION STATE OF TENNESSEE, ) Filed: October 20, 1997 ) Appellant, ) ) HAMILTON CRIMINAL ) Vs. ) ) HON. DOUGLAS A. MEYER, ) JUDGE STEPHEN TRACY SHELINE, ) ) Appellee. ) No. 03-S-01-9701-CR-00002

For Appellant: For Appellee: John Knox Walkup Donald Mart Lasley Attorney General & Reporter Chattanooga, Tennessee Michael E. Moore Solicitor General Linda A. Ross Associate Solicitor Gener al Nashville, Tennessee At trial: Gary D. Gerbitz District Attorney General Rebecca Stern Assistant District A

ttorney General Chattanooga, Tennessee



## O P I N I O N

COURT OF CRIMINAL APPE ALS REVERSED; JUDGMENT OF TRIAL COURT REINSTATED. ANDERSON, C.J.1 Ora l argu me nt wa s hea rd in th is cas e on M ay 7, 1 997 , in Mo rristo wn, H am blen C oun ty, Tenn essee , as part of this Cou rt’s S.C.A.L .E.S. ( S upreme C ourt A dvancing L ega l E ducation fo r S tudents ) project. -2- The question presented by this appeal is whether the trial court correctly applied the Tennessee “rape shiel d” rule when it ex cluded evidence of a rape victim’s prior se

xual conduct. 1
The Court of Criminal Appeals, with one judge dissenting, held that the evidence should have been ad mitted under the exception set out in Tennessee Rules o f Eviden ce 412, w

hich al lows t he admis

sion of s pecific

instanc es of a victim’s sexual c

onduct with persons other than the defendant if the evidence demonstrates a pattern of sexual behavior so distinctive and so closely resembling the defendant’s version of events that it tends to pro ve that the victim consented to the act charged. Because of the perceived err or, the Court of Criminal Appeals rev

ersed the defendant’s rape convi ction.
We conclude that the proffered evidence of the rape v ictim’s prior sex

ual conduct did not demonstrate a pattern of sexual behavior so distinctive and so closely resembling

the defendant’s version of the ev ents that it was relev

ant on the issue of consent. On the contrary, it was the type of evidence specifically intended to be excluded by the Tennessee Rape Shield La w as set forth in Rule 412 of the Tennessee Rules of Evidence. We therefore reverse the Court of Criminal Appeals and reins tate the rape conviction.

BACKGROUND The defendant, Stephen T racy Sheline, and the victim were 23-year-old university students

who met one evening at a local bar where both had been drinking. During

the evening, Sheline appr oached the victim, who knew he was a student. He told her he needed a ride, and she agreed to g ive him a ride home to his fraternity house. When Sheline said he no longer lived at the fraternity and was between apartments, the victim said she offered to let him-3- sleep on the living r

oom couch in her apartment, wh ich she shared with thr ee other women. Sheline testi fied that she simply offered to let him stay at her apartment.

The victim testified that w hen they arrived at her

apartment, the defendant pushed her against a wal l and attempted to lift up her ski rt. She resisted and told Sheline that he was to sleep on the living room couch. According to the victim, she said goodni ght and went into her bedr oom, and then went into the adjacent bathroom. When she emerged, Sheline w as in her bedroom wearing only his pants. Althoug h the victim resisted,he put her on the bed and pushed up her skirt. She fought him, “tried to wiggle out from underneath” him, and “told him to stop.” Sheline, how ever, held the victi m’s hands down at her sides and vaginally pe netrate d her with h is penis. When the victim was able to get away, she ran from her apartment to a neig hbor’s apartment for help. The neig hbor testifi ed that t he victim wa s crying hyste rically.

Sheline’s version was different. He said that he met the victim at the bar, and that an acquaintance told hi m that the victim “thought he was cute and that she wanted to kiss him.” He said he spent most of the evening with his friends, but the victim talked to him periodically and also hugged him. According to his version, when the bar

closed, the victim ask

ed if he wanted a ride home, and he agreed. As they drov

e towards his fraternit

y house, he told her he w as between apartments and she offered to let him stay at her apartment. When they arrived at the victim’s apartment,he said he sat down on the bed while the victim w ent into the bath room. Sheli ne testified that when s he emerged fr om the bathroo m, they started kissing

and touching, and they remov ed their shirts. He sai d he performed oral sex on the v ictim and then penetrated her w ith his penis. They stopped having intercourse when the victim said, “I don’t think we can do this anymore.” They continued to kiss and hug for sever al minutes, and then Sheline fell asleep.2 The defendant prof fered the t

estimony of a third witness, Richard Bur ns, who testi fied that he had sexual

intercour

se with t he victi m on numerous occasions in the cour se of a steady datin g rela tions hip. T he C ourt o f Crim inal A ppe als af firm ed th e trial c ourt’s ruling exc luding this testimony; thus, th e ruli ng with respe ct to Burns i s not before us. -4- As a result of a police inv estigation, the defendant was indicted for rape. His defe nse was tha t the sexu al interc ourse was c onsensu al. At tria l in a juryout proceeding, the defendant proffered the t estimony of two witne

sses under Tenn. R. Evid. 412. 2

The first witness, Eric

Gray, testified during

the offer of proof that he and the victim had known eac h other for a year, wer

e good friends, and that he had engaged in sexual intercourse with her on two occasions. The first time, he said he and the victim were drinking heavily at a bar and then returned to Gray’s apartment where they engaged in oral sex and se xual intercourse. The second time, he and the victim w ent to a basketball game, to a fra ternity party, and then to the victim’s apartment,where they engaged in sexual intercours

e.
The second witness, Gary Jindrak, testified during the offer of proof that he and the victim talked i n the bar on the same evening she met the defendant. He said they kissed and the victim put her arm ar ound him. He testified that later she asked him to go home with her, but he declined. Ji ndrak testified that he never had sexual rel ations with the vic tim at any time.
The defendant argued to the trial cou rt that he was entitled t o present the testimony of Gray and Jind rak because the victim’ s “promiscuity” w as relevant to his defense of consent. The trial cour t ruled that the proffered testimony of Gray and Jindrak was inadmiss ible. The trial then proceeded on the proof of the victim and the defendant and other s upporting witnesses.After deliberating, the jury accredited the v

ictim’s testimony and found the defendant guilty of rape.
On appeal, the Court of Criminal Appeals, in a two to one dec ision, reversed the rape conv iction on the grounds that the trial court erred i n excluding3 See Lee v. Sta te , 132 Tenn. 655, 179 S.W. 145 (1915)(“No imparti al mind can resi st the conclusi on that a female who had been in a recen t habit of il lici t intercourse wit h others wil l not be so likely as to resist as one who is spotless and pure.”). -5- the evidence of the first sex ual episode described by Gray, as well as the events on the evening in question described by Jindr ak. The majority concluded that [t]he evidence of the first sex ual encounter with Gray is relevant to the issue of consent because the factu al scenario so closely resembles the Defendant’s ver sion of the facts that it constitut es one episode of a distinctive pattern in which the v ictim met an acquaintance at a bar, w as drinking, and eventu ally had sexual relations with that per

son. This encounter is also similar to the events de scribed b y witness Ga ry Jindrak, and thes e two encounters taken in conjuncti on with the Defendant’s ve rsion of the facts, constitute a distincti ve pattern. Judge John Peay dissented. He did not agree that the tes timony established a distinctive pattern tha

t closely resembled the defendant’s version of the event s. His dissent reasoned that i f the victim’s behavior

with Gray was

distinctive, then “every woman who has sexual relations with a man she meets in a bar is engaging in ‘disti nctive’ sexual behav ior.” The dissent also c oncluded that the court sho uld not p resume f rom Jindr ak’s test imony tha t the victi m would ha ve consented to sexual interc ourse with Jindrak, or that the testimony had any relevance to whether the victim consented to hav e sex with the defendant.
We granted the State’s application for permis sion to appeal to review the applicability in thi s case of the rape shield prov isions set forth in Tenn. R. Ev id. 412.

TEN NES SEE RAPE SHI ELD LAW Rape shield laws were adopted in response to anachronistic and sexist views that a woman who h ad sexual relation s in the pa st was more likely to ha ve consented to sexual relati ons with a specific cr iminal defendant. 3 Those attitudes resulted in tw

o rape trials at the same ti me -- the trial of the defendant and the trial of the rape vi ctim based on her past sexual conduct. It has been said that the victim of a sex ual assault is actually

assaulted twice -- once by the4 See Annota tion, Modern Status of Admissi bili ty i n Forcible Rape Prosecution, of Com plainant’s P rior Sexu al Acts , 94 A.L.R. 3d 257 (1979 & 199 6 supp.).

5 This rule of

evidence supersede d Tenn. Code Ann. § 40-17- 119, which had sai d that “[s]pecific inst

ances of prior

consensual sexualactivity bet ween the vict im and any person ot her than the off

ender shallnot be admitted into evidence in prosecut ions [ci tation s omitted]; provided, that when consent

by the vi ctim is at issue, such evid ence may be admitted i f it i s first establi shed to the court

outside t he presence of the jury and spe ctators by the method of clea ring the courtroom that such activity shows such a relation to the conduct involved in the case on the part of the victim that is releva nt to the issu e of con sent.” -6- offender and once by the criminal justice system. The prote ctions in rape shield laws recognized that intrusions into the irrelevant sexual history of a victim were not only pr

ejudicial and embarras sing but al so a practic

al barrier to many vi ctims reporting sexual crimes. As the comments to Tennessee’s rape shield law (Rule 412) observe: [T]he rule. . . takes into account that the public’s interest in prosecuting and convic ting people guilty

of various sexual offenses is frustrated when sex

ual assault victims r

efuse to report the offenses or to testify about them at trial becau se of the possible admission of evidence of their sexual history. Moreover, the rule seeks to minimize the li kelihood that evidence of the al leged victim’s sexual h istory may cause the j ury to be unfairly pr ejudiced against the

victim. At the same time, rape shield l aws recognize tho se circumstances in w

hich the admission of such evidence, des pite its potentially e mbarrassing nature, must be admitted to preserve an accused’s right to a fair tr ial. See State v. Shockley , 585 S.W.2d 645 (Te nn. Crim. App. 1978).
As does nearly every

jurisdiction, 4 Tennessee’s “rape shield” rule limits the admissibility of evi dence about the prior sexual behavior of a victim of a s exual offense, and establishes procedures f or determining when evidence is admissible. Tenn. R. Evi d. 412 5 provides: Notwithstanding any other provision of law, in a criminal trial, preliminary hearing , deposition, or other proc eeding in which a person is accused of an offense under Tenn. C ode Ann. § 39-13- 502 (aggravated rape) , 39-13-503 (rape), 39-13- 504 (aggravated sexual battery), 39- 13-505 (sexual battery ), 39-13-507 (spousal sexual offenses), or the attempt to commit any such offense, the followin g rules app ly: (a) Definition of sexual behavior.-- In this rule, ‘sexual behavior’ means sexual activity of the alleged victim other than the sexual act at issue in the case.-7- (b) Reputation or opinion.-- Reputation or opinion ev idence of the sexual behavior of an alleged victim of such offense is inadmissible unless admitted in accordance with the procedures in subdivision (d) of this Rule and requi red by the Tennessee or Unit ed States Constitution. (c) Specific instances of conduct.-- Evidence of specific instance s of a victim’s sexual behavior is inadmissible unless admitted in accordance with the proc edures in subdivision (d) of the Rule, and the evidence is : (1) Required by the Tennessee or United States Constitution, or (2) Offered by the defendant on the iss ue of credibility of the victim, provided the prosecutor or vic tim has presented evidence as to the victim’s sexual behavior, and only to the extent needed to rebut the specific evidence presented by the prosecutor or victim, or (3) If the sexual behavi or was with the defendant, on the issue of consent, or (4) If the sexual behavior w as with persons other than the defendant , (i) to rebut or explain scientific or medical evidence, or (ii) to pro ve or explai n the sou rce of se men, inj ury, disease, or knowledge

of sexual matters, or (iii) to prove consent if the evi dence is of a pattern of sexual behavior so distinctive and so closely resembling the defendant’s v ersion of the alleged encounter with the vi ctim that it tends to prov e that the victim consented to the act charged or behaved in such a manner as to lead the defendant rea sonably to believe that the vi ctim consented

.

. . . . (Emphasis added).
Accordingly, if, as in the present case, the vi ctim’s sexual behavi or was with persons other than the defendant, it may be admissible u nder the rule only (i) to rebut or expl ain scientific or medical evidence, (ii) to prove or ex

plain the source of semen, injur y, disease, or knowledge of sexual matte rs, or (iii) to prove cons

ent if the evidence is of a pattern o f sexual behavior so distinctive and so closely resembling the defendant’s version of the alleged enc ounter with the vic

tim that it tends to prove that the victim consented to the act charged or behaved in-8- such a manner as to lead the defendant re asonably to believe that the victim consented

. Tenn. R. Evid. 412(c)(4) (emphasis added). As with other evidentiary rulings, the admissibility of the ev

idence rests in the discr etion of the trial court.

When evidence is offered under the rule, the tri al court must conduct a non-public hearing and cons ider the admissibility of the proposed evidence, and if otherwise admissible,then determine whether its probative value outw

eighs its unfair prejudice to the victim. Tenn.R. Evid. 412(d). As with other evidentiary rulings, the admissibi lity of the evidence re sts in the discretion of the t rial court.

The State contends that the Court of Cr iminal Appeals’ opinion thr eatens to resurrect ill-foun ded and fallacious presump tions about a lleged sex ual victi ms and that its int erpreta tion of t he Rule 412(c) (4)(ii i) exc eption e ffectiv ely eng ulfs the entire rule. The State arg ues that the testimony of Gray and Jindrak did not establish a pattern of distinctive sexual behavior by the victim that so closely resembled the defendant’s versi on of events as to be relev ant on the issue of consent. The defendant, however, maintains tha t the Court of Criminal Appeals correctly interpr

eted Rule 412(c)(4)(i ii), and that excluding the evidence denied his rights under the Tennessee and United States Constitution s.
As we consider these arguments, we first turn to the language of Rule 412(c)(4), which r

equires a pattern of sexual behavior. Although ther e is no Tennessee case on the issue, it is clear that a “pattern” of sexual cond uct requires more than one act o f sexual conduct. Cohen, Paine and Sheppeard, Tennessee Law of Evidence , § 412.4 at 236. The plain language of the rule speaks of “specific instance s ” of sexual conduct with “person s ” other than the defendant. Moreover, other j urisdictions have cons istently observed that a “pattern” of sexual conduct denotes repetitive or mul tiple acts and not just an isolated occurrence. See State v. Ginyard , 468 S.E.2d 528 (N.C. App. 1996);6 Although ki ssing does not ne cessarily have a sexual connot ation, the tri al judge r uled on this t estimony under Rul e 412. “Sexualbehavior i s defined i n Rule 412 as “sexual activity of the alleged victim oth er than the sexua l act at issue in the cas e.” This b road de finition “deals with sexua l intercours e as we ll as every othe r variety of se xual exp ression .” Cohen , et al., supra , § 412.2 a t 241. Th us, we c onsider the inciden t under R ule 412 a s well. -9- State v. Woodfork , 454 N.W.2d 332 (S.D. 1990); Kaplan v. State , 451 So.2d 1386, 1387 (Fla. App. 1984); State v. Patnaude , 438 A.2d 402 (Vt. 1981); State v. Jones , 617 P.2d 1214 (Haw. 1980); Parks v. State , 249 S.E.2d 672 (Ga. App. 1978).
The rule also requires that the pattern consist of sexual behavior so distinctive and so cl osely resembling the d efendant’s version that it t ends to prove that the victi m consented to the act charged. The advisory comments to Rule 412 use the word “s ignature” cases to descr ibe the distinctive behav ior required. As the Illinois Supreme Court has said, the sexual conduct must be “so unusual, so outside the normal, that it had distinctive characteristics which make it the complainant’s modus operandi.” People v. Sandoval , 552 N.E.2d 726, 738 (Ill. 1990); see also State v. Cr ims , 540 N.W.2d 860 (Minn. App. 1995); Jeffries v. Nix , 912 F.2d 982, 986 (8th Cir. 1990). Moreover, to hav e probative value on the issue of consent, the pattern of distinctive sexual condu ct must closely resemble the defendant’s versi on of facts. Cohen, et al., supra , § 412.4 at 246- 47.
Applying t he rule an d the fo regoing pri nciples t o the fa cts of th is case, we conclude that there was no pattern of prior sexual behavi or on the victim’s par t. Gray testified that on one occ asion in the past he had oral s ex and sexual intercourse with the v

ictim after the couple met in a bar where both had been drinking. On the second oc casion, he and the victim h ad sexual intercourse after attending a basketball game and a fraternity party.On the other hand, Jindrak testified only that the victim kissed him and asked him to go home with her. 6 For the Jindrak testimony to be considered part of a “pattern, ” a court would have to presume that the victim would have consented to engage in sexual intercourse-10- with Jindrak. We are unwill ing to make such a presumption.The two separate occasions of sexual intercourse described by Gray, therefore, do not establish the required pattern of sex ual conduct.

Moreover, there wa

s nothing so distincti

ve about the testimony of eithe r Gray or Jindrak that so closely resembled the defendant’s version of the eve nts that took place between he and the victim. The described a cts could hardly be characterized as sig nature cases. As Judge Peay observed in his diss

ent, to decide otherwise is t

o hold that any woman w ho has sexual intercours e with someone she meets in a bar is automati cally engaging in “distinctive” sexual conduct. Other courts hav e rejected such a conclusi on as well: We observe, however, that a victim’s sexual history with others only goes to show a generalized attitude toward sex and says little if anything about her attitu de toward a specific act of s ex with the defendant. . . . We conclude that the evidence of [the victim’s] sexual advances, ov

er a period of years, tow ard some of the men she had met in a bar is not rel evant, in itself, to establ ish that she consented to have sex w ith [the defendant].
State v. Peite , 839 P.2d 1223, 1229 (Idaho App. 1992).
Accordingly, w

e hold that the evidence proffered by the defendant did not establish a pattern of distinc tive sexual behavi or as required for admiss ibility under Tenn. R. Evid. 412(c) (4)(iii), and it w as properly exclud ed by the trial court.

CONSTITUTIONALITY The defendant maintains that the applicati on of the rape shield provis ion under the facts of this case vi olated his right to pres ent evidence and to confront witnesses under the United States and Tennessee Constituti ons. U.S. Const. amend VI & XIV; Tenn. Const. art. I, § 9. He argues that the evidence was also critical to his defense and necessary to ensure his right to a fair trial.-11- The United States Supreme Court has said that “the rights to confront and cross examine witnes

ses and to call witnes

ses in one’s own behalf hav e long been recognized as essential to due process,” and emphas ized that the denial or “significant diminution”

of these rights “calls

into question the ultimate i ntegrity of the fact finding process and requires that the competing interest be closely examined.” Chambers v. Mississ ippi , 410 U.S. 284, 295-96, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973).

This does not mean that a defendant has a ri ght to present irrelev ant evidence. Wood v. State of Alaska , 957 F.2d 1544, 1549 (9th Cir.1992). Moreover, the Supreme Cour t has recognized that ev en the right to present relevant evidence “may, in an appropriate case, bow to accommodate other legitimate interests in the criminal trial process.” Chambers , 410 U.S. at 295, 93 S.Ct. at 1 045. For in stance, a trial jud ge has the discretio n “to limit reasona bly a criminal defendant’s right to cross-examine a w

itness ‘based on concerns about , among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’” Michigan v. Lucas , 500 U.S. 145, 149, 111 S.Ct. 1743, 1746, 114 L.Ed.2d 205 (1991).

In Michigan v. Lucas , the Supreme Court addressed the potential impact of rape shield laws on a defendant’ s right to present ev idence and to confront adverse witnesses. In that case evidence of the v ictim’s prior sex

ual relations with the defendant was ex cluded based on the defendant’s failure t o make a timely offer of proof under a Michi gan rape shield law. In holding that the exclusion did not per se violate the sixth a mendment, the Court stressed that the rape shield

statute “r

epresents a v

alid legi slative de

termination

that rape v

ictims deserve heightened protection against surprise, harassment, and unn ecessary invasions of privacy.” Id ., 500 U.S. at 153, 111 S.Ct. at 1 748.-12- The Tennessee rule, in addition to establishing specif ic circumstances in which evidence relating to a victim’s prior sexual history may be admissible, also states that such evidence i s admissible if require d under either the Tennessee or United States Constitutions . Tenn. R. Evid. 412(b) & ( c)(1). The comments to the rule cite two ex

amples from other states. In the fir st case from Oregon, the defendant claimed that the victi m falsely accused him of rape becau se he had threatened to tell the vic tim’s parents about her acti ve sexual conduct w

ith others. The Oregon court co ncluded that the defendant’s right to confrontation was violated when the rape shield law prevented him from proving the victim’s motive to lie about her sex ual activity w

ith the defendant. State v. Jalo , 557 P.2d 1359 (Or. App. 1976).
In the second case from Pennsylv ania, the defendant was prevent ed from trying to show that the victim accused him of rape to get him out of the house so that she could then resume sex ual activity w

ith another family member. The Pennsylvania Supreme Cou rt held that where “the Rape Shield Law purports to prohibit the admission of evidence which may logically demonstrate a witness’ bias, interest, or prejudice or which properly attacks the witness’ credibility, it unconstitutionally infri nges upon the accused’s ri ght of confrontation under the sixth amendment to the United States Constitution. . . .” Common wealth v. Black , 487 A.2d 396 (Pa. Super. 1985).
Although the case by case nature of such an inquiry precludes a complete list, other courts hav

e recognized similar

circumstances in whi ch the prior sexual history of a victim may

be relevant and necessary to preserve a defendant’s ri ght to confrontation. See People v. Sandoval , 552 N.E.2d at 737-38 (quoting, People v. Hackett , 365 N.W.2d 120 (Mich. 1984)); see also Common wealth v. Joyce , 415 N.E.2d 181 (Mass. 1981).-13- In the case before us for decision, the evidence of the victi m’s prior sexual behavior was offered not to show the victim’s motive, bias, or a history of false claims, but rather, to show consent. As we have di scussed, relevance to the issue of consent requires more than an isolated act or acts of sexual be havior -- it requires a pattern of distinctive sexual behavior by the victim that closely resembl ed the de fendan t’s version of event s. The fa ct that th e victim ma y have had sexual relations w

ith Gray after meeting hi m in a bar is not relev ant to whether she consented to sex ual relations with th e defendant. Likewise, the victim’s conduct w

ith Jindrak had no bearing on the consent issue.
In sum, the proffered testimony w as the type of evidence req uired to be excluded under Rule 412. The trial court’s application of Rule 412, th erefore, did not deny the defendant’s right s under the Tennessee or United St ates Constitutions.

CONCLUSION The proffered evidence of the victi m’s sexual behavior with persons other than the defend ant did n ot estab lish a pat tern of s exual beh avior so dis tinctive and so closely resembli ng the defendant’s version of the encounter with the victim that it tends to p rove the victim cons ented to the act charged and it , therefore, was not admissibl e under Rule 412(c)(4)( iii), nor was it s admission into
ev id en ce re qu ir ed by th e U ni te d S ta

te s o r Ten ne ss ee

Co nsti tu ti on s. We therefore reverse the judg ment of the Court of Criminal Appeals and reinstate the rape conviction of the tr ial court. The costs of this appeal are taxed to the defend ant, fo r which execu tion may is sue, if n ecessary.

_______________________________ RILEY ANDERSON, CHIEF JUSTICE

Concur: Drowota, Reid, Birch, and Holder, JJ.-14-