On appeal, Herren argues that BLR's sexual conduct leading up to the act was improperly barred by the rape-shield statute because the conduct was not "prior sexual conduct" but was instead the res gestae, part and parcel, of the event as a whole. Res gestae comprises
circumstances so nearly related to the main fact under consideration as to illustrate its character and the state of mind, sentiment and disposition of the actor are parts of the res gestae, which embraces not only the actual facts of the transaction and the circumstances surrounding it, but also matters immediately antecedent to and having a direct causal connection with it, as well as acts immediately following it and so closely connected with it as to form in reality part of the occurrence.
Cossio, 2017 Ark. 297, at 5, 529 S.W.3d at 623.
Res gestae can include conduct of both the accused and the victim. See, e.g., Brockwell v. State, 260 Ark. 807, 815, 545 S.W.2d 60, 66 (1976). Specifically, all the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction. Gaines v. State, 340 Ark. 99, 110, 8 S.W.3d 547, 554.
The State argues that Herren's interpretation of "prior" is too narrow and that BLR's actions leading up to the act of digital penetration have no bearing on whether she was awake and consenting at the time of the act. The State likens this case to Cossio, supra. Cossio was charged with the rape of a victim who was incapable of consent due to being physically helpless; the evidence showed that the adult victim was passed out due to consumption of alcohol and fatigue when she was raped. Id. at 3, 529 S.W.3d at 622.
Cossio sought to introduce evidence of sexual conduct between the victim and Cossio’s girlfriend from the night before, arguing that the events leading up to the rape were part of
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