Adrian v. People, 87SC254

• Decision Date: 13 March 1989
• Docket Number: No. 87SC254,87SC254
• Citation: 770 P.2d 1243
• Parties: Kenneth Walter ADRIAN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 1243

770 P.2d 1243

Kenneth Walter ADRIAN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 87SC254.

Supreme Court of Colorado,

En Banc.

March 13, 1989.

Rehearing Denied April 10, 1989.

Hawke & McComas, Lee Allen Hawke, Boulder, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David L. Saine, Asst. Atty. Gen., Denver, for respondent.

ERICKSON, Justice.

Petitioner Kenneth Walter Adrian (defendant) was convicted by a jury of two counts of sexual assault on a child, section 18-3-405, 8B C.R.S. (1986). The court of appeals affirmed the conviction. People v. Adrian, 744 P.2d 768 (Colo.App.1987). We granted certiorari to determine whether evidence admitted during trial of a similar sexual assault by defendant fifteen or more years prior to trial was reversible error.

I.

Evidence of prior similar transactions in cases involving sexual assault on a child is admissible under section 16-10-301, 8A C.R.S. (1986) and CRE 404(b), if it is offered for the limited purpose of establishing a common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or intent. Evidence of prior criminal conduct is not admissible to prove the defendant's guilt of the crime charged. Callis v. People, 692 P.2d 1045 (Colo.1984); Lucero v. People, 200 Colo. 335, 615 P.2d 660 (1980); People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979).

The prosecution may not offer evidence of similar acts until a prima facie case has been made which would warrant submitting the case to the jury. § 16-10-301(4). Before offering evidence of similar acts, the prosecution must advise the trial court of the purpose for the admission of the evidence. § 16-10-301(2). The court must then determine if the evidence is relevant to a material issue in the case, and whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See § 16-10-301(2); CRE 401, 403; People v. Honey, 198 Colo. at 66, 596 P.2d at 754. Before evidence of similar acts is admitted, the trial judge must advise the jury of the limited purpose for the admission and consideration of the evidence. § 16-10-301(3); Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959).

In this case, the prosecution claims that the evidence of prior similar sexual assaults committed by the defendant fifteen years prior to trial was admissible because the acts were similar and establish modus operandi and motive. We agree and therefore affirm defendant's judgment and conviction.

II.

For over fifteen years, defendant was a trusted friend of the victims' family. In September 1984, defendant took C.B., who was then twelve years old, to his house and sexually assaulted him in the bathroom. C.B. testified that defendant sexually assaulted him several times before the September incident, and that the first incident occurred when C.B. was six years old. Sometime between November 1 and December 20, 1984, defendant also sexually assaulted C.B.'s five-year old cousin, J.B. The assault took place in the bathroom of an apartment near a children's play center.

In July 1985, two months before trial, the prosecution filed a "Notice of Intent to Use Evidence of Similar Transactions," to advise both the court and the defendant that the prosecution intended to introduce evidence of specific prior sexual assaults by the defendant on a minor child. The notice stated that the prosecution would introduce evidence of sexual contact between defendant and D.B., the uncle of C.B. and J.B., and that the evidence was being offered to show notice, opportunity, intent and the absence of mistake.

On the morning of trial, defendant moved to exclude D.B.'s testimony because the sexual assault on D.B. occurred over ten years prior to the assaults on J.B. and C.B. The trial court conducted an in limine hearing to determine whether D.B.'s testimony was admissible or barred by time limitations on prosecution for sexual assault on a child. D.B. testified that the defendant was approximately twenty-three years old, and that D.B. was eight years old when he met the defendant in 1970. Defendant was then D.B.'s counselor at a youth camp. After the defendant befriended D.B.'s family, the defendant began taking D.B. on extended vacations. D.B. testified that he lived with defendant for two years and that defendant sexually assaulted him almost nightly. Sexual relations continued between the defendant and D.B. for four years. The sexual assaults ceased when D.B. was approximately twelve years old.

At the conclusion of the hearing, the court found that although "a lot of time has elapsed" since the assaults on D.B., D.B.'s testimony related to modus operandi and motive. Accordingly, the trial court ruled that the evidence was admissible provided that a limiting instruction was given before D.B. testified. See Stull, 140 Colo. 278, 344 P.2d 455. During the trial, the court gave the limiting instruction required by Stull before D.B.'s testimony and the defendant made no objection to the adequacy of the instruction. ¹ D.B. then gave substantially the same testimony to the jury as he had given during the in limine hearing. At the conclusion of trial, the jury found defendant guilty of one count of sexual assault against C.B. and one count against J.B.

The court of appeals held that D.B.'s testimony relating to prior sexual assaults was neither too remote nor too diverse to render it irrelevant. The court of appeals concluded that the circumstances and methods of the sexual assault against D.B. showed a "striking similarity" to the assaults against C.B. and J.B., over fifteen years later.

III.

Section 16-10-301(2), 8A C.R.S. (1986), states:

If the prosecution intends to introduce evidence of similar acts or transactions as provided in subsection (1) of this section, the prosecutor shall advise the trial court of the purpose for which evidence of similar acts or transactions is offered. The burden shall be on the prosecution to show the relevancy of evidence if objection to introduction of said evidence has been made. The trial court shall determine whether or not the evidence offered is relevant and, if relevant, whether or not the prejudice which would result to the defendant by the introduction of the evidence outweighs the evidentiary value of the evidence. ²

(Emphasis added.)

Pursuant to section 16-10-301(2), the trial court is vested with substantial discretion in deciding the admissibility of evidence of prior similar acts. Pigford v. People, 197 Colo. 358, 593 P.2d 354 (1979); see also People v. Ihme, 187 Colo. 48, 528 P.2d 380 (1974). The trial court must decide admissibility on a case-by-case basis consistent with the standards and procedures set forth in section 16-10-301. People v. Flowers, 644 P.2d 916 (Colo.1982). In determining the relevancy of similar transaction evidence, remoteness as well as other circumstances must be considered. See People v. Geller, 189 Colo. 338, 540 P.2d 334 (1975). In Geller, we held that: "There is no fixed standard for determining remoteness, ... the determination of whether evidence is too remote to be relevant is left to the discretion of the trial judge, and his decision will not be reversed in the absence of clear proof of an abuse of that discretion." Geller, 189 Colo. at 341, 540 P.2d at 337 (quoting 1 R. Anderson, Wharton's Criminal Evidence (12th ed. 1955)).

In addition to remoteness, the trial court must also consider the strength of evidence of the commission of prior acts, the similarities between the acts, the interval of time elapsed between the acts, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence will rouse the jury to overmastering hostility. See McCormick on Evidence § 198 (E. Cleary 3d ed. 1984); C. Torcia, Wharton's Criminal Evidence § 199 (14th ed. 1985). See generally, E. Imwinkelried, Uncharged Misconduct Evidence § 8:08 (1984). Other jurisdictions have held that remoteness does not prevent the admission of evidence of prior sexual assaults when such evidence is otherwise relevant. See, e.g., Demmert v. State, 565 P.2d 155 (Alaska 1977) (Prior evidence of sexual offense seven years prior to trial was held to be admissible. The time of the earlier offense was one of three factors used to determine admissibility.); Potts v. State, 427 So.2d 822 (Fla.App.2d Dist.1983) (Evidence of sexual assaults twelve and eighteen years before trial was held to be admissible under a traditional relevancy test.); Jarrett v. State, 465 N.E.2d 1097 (Ind.1984) (Evidence of a sexual assault ten years before trial was admissible and the substantial passage of time does not render the evidence inadmissible.); Lawrence v. State, 464 N.E.2d 923 (Ind.1984) (Evidence of rape conviction twenty-two years earlier was held to be admissible. The court stated that the "passage of time alone would not end any strand of relevance" id. at 924.); State v. Breaszeale, 238 Kan. 714, 714 P.2d 1356 (1986) (Evidence of rapes ten years prior to trial was held to be admissible, particularly because defendant was incarcerated for the majority of the time between the offenses. Remoteness affects weight rather than admissibility.); State v. Tecca, 714 P.2d 136 (Mont.1986) (Evidence of sexual assault nine years before charged assault was admitted. Remoteness is one of four factors used to determine admissibility and the problem of remoteness is alleviated by a continuing pattern of similar conduct.); State v. Friedrich, 135 Wis.2d 1, 398 N.W.2d 763 (1987) (Evidence of two prior sexual acts was admitted as highly probative of a plan or scheme. Defendant maintained a quasi-familial relationship with victim's family for over five years.).

Here, any difficulties caused by the remoteness of defendant's assault on D.B. is outweighed by the similarity of the three incidents. The record before us unequivocally establishes a compelling pattern and...