No. 91CA1787Colorado Court of Appeals.
Decided April 22, 1993. Rehearing Denied June 10, 1993. Certiorari extension pending 07/22/93 (93SC441).
Appeal from the District Court of Eagle County Honorable Richard H. Hart, Judge
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Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Eric V. Field, Assistant Attorney General, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Beth L. Krulewitch, Deputy State Public Defender, for Defendant-Appellant.
Division V.
Opinion by JUDGE METZGER.
[1] Defendant, John Jay McKibben, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree sexual assault. We affirm. [2] The charge at issue here arose from an incident in which defendant engaged in sexual intercourse with a 16-year-old boy. The prosecution asserted that the defendant, in violation of § 18-3-403(1)(a), C.R.S. (1986 Repl. Vol. 8B), had caused the victim to submit by a means of sufficient consequence, reasonably calculated to cause submission against the victim’s will. The defendant claimed that the victim had consented to the sexual act. [3] Before trial, the prosecution filed a notice of intent to offer similar act evidence, and at a hearing thereon, the prosecutor made an offer of proof regarding the similar transactions. The offer of proof consisted of the testimony of two boys who had been befriended by the defendant. The defendant had taken them to movies, out to meals, and had given them jobs. Each was taken to the defendant’s apartment, where the defendant discussed homosexual acts with them and then asked the boys for sex. In addition, the defendant offered the boys money for sexual favors. One boy submitted to defendant’s importuning; the other did not. [4] The trial court found that the evidence was admissible to show common plan, scheme, design, modus operandi, guilty knowledge, or intent and that the probative value of the similar transaction evidence substantially outweighed the danger of unfair prejudice. I.
[5] On appeal, the defendant contends that the trial court erred in admitting the similar transaction evidence. He maintains that the evidence was not logically relevant independent of the intermediate inference prohibited by CRE 404(b) and § 16-10-301, C.R.S. (1992 Cum. Supp.), was not sufficiently similar to the incident at issue, and was highly prejudicial. We disagree.
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logically relevant to the material fact; (3) the logical relevance must be independent of the prohibited inference that the defendant committed the crime charged because of his criminal propensities; and (4) the probative value of the evidence substantially must outweigh the danger of unfair prejudice. People v. Spoto, 795 P.2d 1314 (Colo. 1990).
[7] The trial court has substantial discretion in deciding the admissibility of evidence of similar transactions, and only if there is an abuse of discretion will its ruling be disturbed. People v. Czemerynski, 786 P.2d 1100 (Colo. 1990).A.
[8] Relevant evidence is defined in CRE 401 as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” People v. Carlson, 712 P.2d 1018 (Colo. 1986). In resolving an issue of relevancy, a court must consider whether the proffered evidence is legally material to some factual issue in the case People v. District Court, 785 P.2d 141 (Colo. 1990).
B.
[13] As to whether the other incidents were sufficiently similar to the one at issue, the record before us unequivocally establishes a compelling pattern and remarkable similarity of defendant’s sexual misconduct. The boys were all young teenage boys, befriended by the defendant who had attempted to sexually assault them. The assaults or attempted assaults occurred while the boys were at the defendant’s apartment or condominium. Finally, the methodology employed by the defendant was similar in each case. See People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979).
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admissible when, as here, the defense of consent is raised. Defendant has not provided any authority, nor are we aware of any, to support this proposition.
C.
[16] Finally, as to the prejudicial nature of the evidence, we are well aware that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. People v. Lowe, 660 P.2d 1261 (Colo. 1983); CRE 403. However, such is not the case here.
II.
[23] We also reject defendant’s contention that the trial court employed the wrong standard in determining the admissibility of the similar transaction evidence. Even assuming that the trial court employed an incorrect standard, because the evidence was admissible and the foundational requirements for its admission were met, defendant’s conviction will not be overturned. People v. Jenkins, 768 P.2d 727
(Colo.App. 1988).
(Colo. 1989). [25] Accordingly, the judgment is affirmed. [26] JUDGE RULAND concurs. [27] JUDGE BRIGGS dissents. [28] JUDGE BRIGGS dissenting. [29] I respectfully dissent. [30] The alleged victim, A.M., was a sixteen-year-old youth when he was introduced to the defendant, a man in his forties. They became friends and defendant took A.M. on social outings, such as movies, horseback riding, and lunch. Each time defendant paid the expenses. On some occasions they were by themselves and at others they were with a group of other boys about the same age as A.M. Defendant also paid their expenses. [31] During the summer, A.M. began to work for defendant in his business producing a high school sports magazine. Over Labor Day weekend, A.M. accepted defendant’s
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invitation to accompany him to a mountain resort on a “working vacation.”
[32] The first evening there A.M. consumed several alcoholic drinks provided by defendant. While in their hotel room, defendant began telling A.M. about his bisexuality and, eventually, that he wanted “to have sex.” A.M. testified he refused, and shortly thereafter got up from his bed because he was feeling sick from the alcohol he consumed. He bent over and somehow found himself on the ground on his stomach with defendant on top of him. According to A.M., when defendant began to pull A.M.’s pants down he told the defendant to stop and tried to get out from under him, but was unable because he was being held down by the defendant’s body weight. Defendant had anal intercourse with A.M., who testified he then passed-out and woke up a short time afterwards in the same place on the floor. [33] At trial A.M. admitted that he continued to socialize with defendant after the Labor Day trip and did not report the alleged rape to the police until several months later. He also admitted that he had initially reported to the police and had testified at the preliminary hearing that he had passed out before defendant engaged in anal intercourse with him. On yet another occasion, he had claimed that defendant had thrown him against a wall, knocked him to the ground, then held him down while having anal intercourse with him. A.M. also admitted at trial that he had told the police he never socialized with the defendant. [34] At the time A.M. reported the first incident he also reported a second incident which occurred in December. He told the police he again had not consented and that defendant had grabbed him from behind, pushed him into a wall so hard that he lost his breath, and then thrown him onto the ground and raped him. At trial A.M. admitted he later changed his story to the police and that on this occasion he had consented to have anal intercourse with the defendant after defendant had offered to pay him some of the money defendant owed him. [35] In January, a dispute erupted between defendant and A.M. over the money A.M. asserted defendant owed him. A.M. then reported the two alleged rapes to a school counselor who contacted the police. A co-worker with A.M. testified that, in February, A.M. told him that if the defendant would pay him the money he owed him he would “drop the charges.” Shortly after the Labor Day incident, A.M. had told the same counselor the defendant was a good person, he liked working for him, and that he wanted to move out of his parents’ house. The counselor corroborated this testimony. [36] It was defendant’s theory of the case that the Labor Day incident was merely one consensual incident among others that had been occurring in their homosexual relationship since June. Defense counsel attempted to prove this by impeaching the victim based upon his conflicting reports to the police; the improbability that defendant could have perpetrated the forced nature of the act testified to because he only had one arm with a prosthesis in place of the other; and by showing motive and bias to fabricate testimony based upon the outstanding debt which defendant had not paid and A.M.’s asserted fear that others, especially his devoutly Christian parents, would persecute him if it was discovered he was involved in a homosexual relationship with defendant. [37] Prior to trial, the People filed a notice of intent to introduce similar transaction evidence under § 16-10-301(1), C.R.S. (1992 Cum. Supp.). Defendant contested the admissibility of this evidence and a hearing was held at which the other two witnesses testified. [38] The first witness testified he had met the defendant about fourteen years previously, when he was sixteen years old. He had been playing foosball at an arcade defendant once owned and desired to play on defendant’s foosball team. Shortly thereafter defendant hired the witness to work at the arcade. [39] Defendant also took this witness out for meals and movies, usually with groups of other boys his age, and always paid. OnePage 996
day at the defendant’s residence defendant confessed to the witness that he was bisexual. He suggested that they have sex. The witness refused.
[40] He continued to work for the defendant, who on other occasions suggested that they have sex. The witness testified it was clear that the defendant was suggesting he would only perform oral sex on the witness and that defendant would give him money if he complied. Each time the witness did not accept. At some later time, the defendant told him he would not be able to play on the foosball team, and it was clear to the witness that this was because he refused to have sex. [41] After their relationship had discontinued for about eighteen months, defendant contacted the witness and again asked him to have sex. The witness refused and filed a report with the local police. [42] The second witness testified that he also met defendant at his arcade about nine years previously, when he too was approximately sixteen years old. During this period he was competing to play on defendant’s foosball team. He and defendant also socialized, going to meals and movies, either alone or with groups of other boys, and at defendant’s expense on each occasion. While alone at defendant’s apartment, defendant discussed at length his prior sexual involvements with boys. Defendant asked the witness if he could give him a back rub, but the witness declined. Two weeks later defendant told this witness that if he were “not nice” to the defendant he would not be allowed to play in an up-coming foosball tournament. [43] Defendant raised the subject again on a night when he and the witness were going to a movie and stopped by defendant’s apartment. Once again defendant asked the witness to lie down on the bed so that he could give him a back rub. The witness testified he agreed out of fear that defendant would physically harm him if he did not. [44] The defendant unbuttoned the witness’ pants, pulled them down, and had anal intercourse, despite the witness’ repeated demands that the defendant not do so. The witness testified that defendant held him down with his body weight. The witness managed eventually to free himself and leave the apartment. He also testified that the defendant propositioned him with money on a later occasion, but he did not accept. I.
[45] The People filed a motion to admit evidence of the two prior occurrences under § 16-10-301(1). That statute was enacted to change the common law by allowing evidence of prior conduct not only with the present victim but also with third parties if the similar acts or transactions are probative of one of the permitted limited purposes. See Pigford v. People, 197 Colo. 358, 593 P.2d 354 (1979).
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probative value of the evidence substantially outweigh the danger of unfair prejudice.
[48] Here, the trial court admitted the evidence for the limited purposes of showing 1) intent; 2) motive; 3) a common plan, scheme or design; and 4)modus operandi. Although evidence may be admitted for more than one of these purposes, each must be separately analyzed to determine if it was in controversy at trial and, if so, whether the evidence was relevant to establish that purpose independent of the prohibited inference. See People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979).[49] A. Intent
[50] A conviction for second degree sexual assault under § 18-3-403(1)(a), C.R.S. (1986 Repl. Vol. 8B) requires that the actor knowingly inflict sexual penetration or intrusion and cause submission of the victim by means other than those included in the crime of first degree sexual assault but of sufficient consequence reasonably calculated to cause submission against the victim’s will. “[T]he actor must be aware that his conduct is sufficient in character and degree to be likely to cause nonconsensual submission.” People v. Smith, 638 P.2d 1, 5 (1981) (fn. 7); People v. Derrera, 667 P.2d 1363 (Colo. 1983).
[57] B. Motive
[58] Motive is an intermediate, evidentiary fact from which an inference can be made about an element of the crime, such as such as identity or intent, which is at issue. See E. Imwinkelried, supra, § 3.15. Here, however, identity was not at issue, and the crime was one of general intent inferable from the act. The Washington Supreme Court addressed the same claim that evidence of a prior rape was relevant to establish motive i State v. Saltarelli, supra, at 700:
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explanation of the logical relevance of the evidence to motive was offered by the trial court, the Court of Appeals, or the State, in its argument to this court. In the absence of such an explanation, the evidence seems to achieve no more than to show a general propensity to rape, precisely forbidden by ER 404(b).”
[60] The evidence once again had no tendency to prove motive aside from the prohibited inference that defendant acted in conformity with his bad character, and motive was itself irrelevant aside from the same prohibited inference. See E. Imwinkelried, supra, § 3:15.[61] C. Common plan, scheme or design
[62] In order for two or more acts to constitute a scheme or design, they must have a nexus or relationship with each other from which a continuous scheme or a common design can be discerned. See People v. Crespin, 631 P.2d 1144 (Colo.App. 1981).
[66] D. Modus operandi
[67] Modus operandi is often confused with common plan, scheme, or design but is conceptually distinguishable. Evidence of a common plan may include two crimes which are dissimilar but because they are naturally part of a common plan may show the motive, intent, or identity of the actor. In contrast, modus operandi is typically relevant to establish identity and refers to crimes manifesting such significantly distinctive features that they make it more likely than it would be without the other-crime evidence that the person who committed the other crimes also committed the offense charged. See People v. Garner, 806 P.2d 366 (Colo. 1991); McCormick on Evidence, supra, § 190. The methods used in the commission of the acts being compared must be both similar to each other and dissimilar from the methods generally used in such an offense. See People v. Honey, supra.
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inference that defendant had a propensity to commit sexual assault.
[70] Modus operandi therefore could not provide a basis for introduction of evidence of defendant’s prior interactions with the two witnesses.[71] E. Prejudice
[72] Even if the evidence of these two prior acts had some relevance independent of the prohibited inference that defendant committed the crime because he acted in conformance with a bad character, the probative value was at best slight. In contrast, the prejudicial effect was extreme.
II.
[77] The error in admitting the evidence of prior acts was not harmless. The People’s case rested entirely on the credibility of A.M.’s testimony. That credibility was substantially impeached at trial. There was circumstantial evidence rebutting the claim of lack of consent. In addition, the prosecutor’s closing argument, especially in rebuttal, drew attention to the prior act testimony. It addressed that testimony in general terms and made no mention of the limited purpose for which it should be considered. Near the end of the rebuttal, the prosecutor alluded to one of the prior act witness’ statement that defendant was never going to have the opportunity to rape him again.
III.
[79] Our society should not tolerate either sexual exploitation of children or sexual assault. However, our courts must be vigilant to protect the rights not just of the young or weak, but also of a member of our society charged with a vile crime who others might vilify regardless of whether he committed the crime charged. In this case, inconsistent statements and circumstantial evidence cast doubt on the claim of lack of consent. The possibility that the jury nevertheless convicted defendant because of his character was unduly increased by the introduction of irrelevant and highly prejudicial evidence. Accordingly, I would reverse and remand for a new trial.
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