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Click here for the full text of this decision FACTS:Jonathan Dayton Eaves was charged with aggravated sexual assault. The victim was an 11-year-old girl. Eaves was 18 at the time. Eaves reached a plea deal with the prosecution for a 3-year sentence, but the trial court rejected the deal. At trial, a sexual assault nurse examiner testified that she had not done a certain type of physical exam on the victim because she was a young girl who was not sexually active. She further described the victim as being “an average eleven year old,” but acknowledged she may have been developed enough to have begun her menstrual cycle. In his testimony, Eaves stated that he was just over six feet tall, and that the victim came up to his chin. He also said she was physically well developed. A psychologist stated his conclusion that he did not believe Eaves was sexually attracted to children. Eaves made two proffers of evidence during the guilt/innocence phase, but both were rejected by the trial court, and Eaves was found guilty. At the punishment phase, Eaves renewed his proffers. In one, he said that he had met the victim at a liquor store a month before the incident; that she had told him she was 16; that she was driving a car when he met her; that she called him daily; that she called him the night in question; that he had picked her up and taken her to his grandmother’s trailer; and that they had consensual sex in the trailer as his father slept in the next room. The trial court said he was overruling the proffered evidence regarding the victim’s age and the victim’s sexual conduct. Eaves made a second proffer of evidence, which included testimony from Lanasha Jefferson, who grew up with the victim, who would have said that the victim was tall and well developed and had started her menstrual cycle. Jefferson would have further testified about the victim’s poor reputation for truth and honesty, that she lies about her age, that she drinks liquor, that she started having sex as an 9- or 10-year-old and that she had had sex with others before and after the incident with Eaves. Eaves also would have offered the testimony of David Neal, who would have confirmed that the victim lied about her age, and that she’d said if she couldn’t have Eaves, nobody could. Brittany Markos, Eaves’ sister, would have testified to the same statement, and would have described the victim as dressing like a slut. Eaves also wanted to offer his father’s testimony that the victim’s number frequently appeared in his home caller-ID, and that he hadn’t heard anything the night of the incident. The trial court overruled this proffer, too, again saying that there wouldn’t be consideration of the victim’s age or sexual conduct or promiscuity. Otero again testified for the defense and was asked by the state why an 18-year-old would want to have sex with an 11-year old. The trial court barred Otero’s response, which would have been that he did not think Eaves was sexually attracted to children. On a jury’s verdict, the trial court then sentenced Eaves to 30 years in prison and assessed a $10,000 fine. Eaves contests his punishment. He argues it was constitutionally impermissible for the trial court to exclude evidence of mitigation in the penalty phase of trial. HOLDING:Reversed and remanded. The court first rejects Eaves’ contention that his proffered evidence was wrongly excluded under an exception to the rape shield law. The court finds Eaves failed to preserve the error for appeal. The court adds that because the victim was 11 years old, her consent is irrelevant to the determination of guilt and innocence, but the same cannot be true in the punishment. “The question squarely presented is whether the trial court abused its discretion by refusing to admit Eaves’ proffered testimony at the penalty phase of the proceeding, including evidence of consent, to show the circumstances of the offense and in mitigation of punishment.” The court says first that the proffered evidence was relevant. The court concludes that it was relevant to show mitigating circumstances that is, facts or situations that do not justify or excuse a wrongful act, but that reduce the degree of culpability. Referring to the rape shield law, the court determines that the trial court’s ruling on evidence that had to do with the victim’s alleged sexual conduct with people other than Eaves was properly excluded. The trial court did err in keeping out other evidence. The court describes the trial court’s ruling as being based on believability, not on admissibility. It was for a jury to decide whether the evidence of the victim’s appearance, conduct, actions or verbal claims could somehow mitigate Eaves’ conduct. The error was harmful because Eaves was unable to get any of the same evidence in through other sources. The court adds that the rejected plea deal was for three years in prison, indicating that presented with the full story, the prosecution recommended a much lesser penalty than the 30 years imposed by the trial court. Though there was also plenty of evidence of Eaves’ juvenile criminal conduct and alcohol problems, and it was noted Eaves has two children by two different mothers and is behind in his child support, the court concludes that had the jury heard the excluded proffered testimony, it might not have assessed the stiffer penalty. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ.

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