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State v. Lackey9/30/2005
d to prove consent or to diminish complainant's credibility on the questioned occasion; (4) whether prior sexual conduct by complainant with others, known to the defendant, tends to prove he or she believed the complainant was consenting to his or her sexual advances; (5) whether sexual conduct tends to prove complainant's motive to fabricate the charge; (6) whether evidence tends to rebut proof by the prosecution regarding the complainant's past sexual conduct; (7) whether evidence of sexual conduct is offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the acts charged; and (8) whether the prior sexual conduct and the charged act of the defendant are proximate in time." 26 Kan. App. 2d 777, Syl. 3.
Application of these factors distinguishes this case from both Atkinson and Perez. None of the factors were met in this case. No evidence was presented that the victim had engaged in prior sexual conduct with the defendant, nor was any factual similarity established between the instant case and the victim's alleged prior sexual conduct of being prone to having spontaneous, voluntary sexual relations with men. The victim's alleged prior sexual conduct and the defendant's charged act were not proximate in time, as those allegations were made by previous neighbors of the victim some 6 months to 1 year prior to the incident in this case. Cf. State v. Montes, 28 Kan. App. 2d 768, 774, 21 P.3d 592, rev. denied 271 Kan. 1040 (2001) (proximity factor not satisfied when prior conduct was 1-2 months earlier). Furthermore, physical evidence was presented in this case connecting the defendant to the victim.
The inability of the defendant to establish any of the above factors reveals his purpose in seeking to admit such evidence. The defendant sought to establish that S.B. had a propensity to engage in consensual sex with the defendant based on her alleged prior behavior, despite evidence that she had previously rejected his sexual advances. This is the type of situation that the Kansas rape shield statute was designed to prevent:
"'The Kansas [rape shield] statute merely serves to focus both judges' and attorneys' attention upon the fact that the victim's prior sexual activity is not generally relevant, reminding them that a victim's lack of chastity has no bearing whatsoever on her truthfulness and generally has no bearing on the important issue of consent.'" (Emphasis added.) Atkinson, 276 Kan. at 926 (quoting In re Nichols, 2 Kan. App. 2d 431, 433-34, 580 P.2d 1370, rev. denied 255 Kan. 844 ).
Although the victim's death negated some of the policy concerns of the rape shield statute, its application was still important to prevent the jury from using irrelevant evidence of alleged sexual conduct in assessing whether the victim consented to the charged act. See also State v. Gonzales, 245 Kan. 691, 699-700, 783 P.2d 1239 (1989) (trial court properly excluded evidence under the rape shield statute that victim had a "propensity to establish her social acquaintances with males on a spontaneous basis" in a felony-murder and attempted rape prosecution).
We conclude that the district court did not abuse its discretion by excluding this evidence under the rape shield statute. Moreover, even if we were to conclude that the exclusion of this evidence was error, it is highly unlikely that this testimony would have had any effect on the outcome of the trial in light of the substantial evidence placing the defendant at the scene of the crimes, the DNA evidence establishing that the defendant's semen was found in S.B., and the defendant's abrupt unexpected departure from the Mission on the alleged night of the crimes.
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