People of The State of Colo. v. VILLA

Decision Date01 October 2009
Docket NumberNo. 06CA1857.,06CA1857.
Citation240 P.3d 343
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Reynaldo VILLA, Defendant-Appellant.
CourtColorado Court of Appeals

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John W. Suthers, Attorney General, Christopher Y. Bosch, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Cory D. Riddle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge GRAHAM.

Defendant, Reynaldo Villa, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child. He also appeals the sentence imposed. We affirm the judgment of conviction, vacate the sentence, and remand for resentencing.

At the time of the alleged assault in this case, the victim, A.C., was three years old. The trial court ruled that A.C. was incompetent to testify at trial, but allowed several witnesses to testify as to A.C.'s out-of-court statements.

A.C.'s great-grandmother (Anita) testified that A.C. was staying at her house on December 17, 2004. At the time, defendant, whom A.C. referred to as “Uncle Ray,” was living in the basement of Anita's house. At some point during that evening, A.C. had wandered off and Anita looked for her. She eventually discovered A.C. walking up the stairs from the basement. A.C.'s pants and underpants were down; she was holding her buttocks and genital area; she appeared frightened; and she told Anita, “My uncle Ray was getting my booty.”

Anita's grandson (Alex) testified that, when he arrived at Anita's house on that same night, A.C. appeared scared and was crying and her underpants were pulled down to her knees. When Alex asked A.C. what was wrong, she responded, “Uncle Ray touched my booty.” Upon hearing this, Alex went downstairs to confront defendant. He found defendant intoxicated and lying naked on his bed with a string tied around his penis (shown at trial to be for the purpose of sexual enhancement). When Alex asked him what was going on, defendant struck him with a cane. The police were called, and when they arrived, they found defendant swaying back and forth on the porch shouting, “I didn't do it.”

A.C.'s mother testified that when she arrived at Anita's house after the incident, A.C. “looked kind of scared, her eyes [were] open real wide, she had her head down, she was crying a little bit.” When A.C.'s mother asked A.C. what had happened, A.C. told her that she “was downstairs getting [her] toy, and [defendant] grabbed [her] and pulled [her] in the room and he was touching [her] booty in the front and booty in the back with his finger and it hurt.” A.C.'s mother explained that A.C. uses the term “booty” to describe both her anus, including her buttocks, and her vagina. A.C. told her mother that defendant pulled her underpants down “to the side” and “tried to unbutton [her] shirt.”

The police officer who arrived at the scene testified that A.C. told him that defendant “touched [her] down there,” pointing to her “bottom” and her vaginal area, and that it hurt. He stated that A.C. spoke to him on her own, without any assistance, guidance, or prompting from adults.

The emergency physician who interviewed A.C. on the night of the incident testified that A.C. told him that she was cornered in a room with defendant and that he “touched her booty,” pointing to her vagina. A.C. then told the physician that she ran out of the room, found other family members, and told them what had happened.

The supervising pediatric physician who examined A.C. after the incident testified that A.C. told him that defendant had touched her genital area. His physical examination indicated that “the tissues behind the labia [inside the vaginal opening] were slightly more red than one would normally see in that area.” The physician explained that the redness could be consistent with lack of hygiene, physical injury, or “someone rubbing [the area] with a finger.” There was evidence that it was not unusual not to see evidence of physical trauma or penetration in a case involving fondling.”

The first trial resulted in a hung jury and a mistrial. Before the second trial, the trial court permitted the prosecution to introduce evidence, pursuant to section 16-10-301, C.R.S.2009, and CRE 404(b), of defendant's prior sexual assaults on his nephew, D.C., who lived with Anita from birth until he was ten years old.

At the second trial, D.C. testified that when he lived with Anita, defendant also lived with her in a trailer behind her house. He stated that, beginning when he was six years old and continuing until he was ten years old, defendant would anally rape him three to four times a week in the trailer behind Anita's house after he had returned home from school. Specifically, D.C. testified that when he would arrive at the trailer, defendant would be on his bed, wearing only boxers; defendant would tell D.C. to come over to the bed and then bring D.C. to the bed by “taking [him] by the waist”; when D.C. was on the bed, defendant would take D.C.'s clothes off and touch him “around [his] penis” with his hands; defendant would be on his back and D.C. would be on top of him so that D.C.'s back was on defendant's chest; and defendant would then “stick his penis in [D.C.'s] ass” and move “up and down.” D.C. stated that when he did not go to the bed willingly, defendant would “use force” by “being rough” and throwing him on the bed. During those times, D.C. would be lying on his stomach and defendant would be on top of him.

Following defendant's conviction, the trial court sentenced him pursuant to the Colorado Sex Offender Lifetime Supervision Act, sections 18-1.3-1001 to -1012, C.R.S.2009, to an indeterminate sentence of fifteen years to life in the custody of the Department of Corrections.

I. Prior Act Evidence

Defendant first contends that the trial court erred by admitting evidence of his prior acts of sexual assault against D.C. pursuant to section 16-10-301 and CRE 404(b). We disagree.

The trial court has considerable discretion in determining the admissibility of evidence, and its rulings will not be disturbed unless they were manifestly arbitrary, unreasonable, or unfair. People v. Rath, 44 P.3d 1033, 1043 (Colo.2002); People v. Apodaca, 58 P.3d 1126, 1128 (Colo.App.2002). In reviewing the admission of such evidence, we assume the maximum probative value a reasonable fact finder might give the evidence and the minimum unfair prejudice to be reasonably expected from its introduction. Rath, 44 P.3d at 1043.

The General Assembly has declared that sexual offenses are “a matter of grave statewide concern” and has stated that evidence of other sexual acts is “typically relevant and highly probative” and should therefore be more readily available in sexual assault cases. § 16-10-301(1), C.R.S.2009; People v. Larson, 97 P.3d 246, 249 (Colo.App.2004); Apodaca, 58 P.3d at 1128.

The statutory provision preserves the rule that evidence of similar sexual acts by the defendant is not admissible to prove propensity, but is admissible for

any purpose other than propensity, including: Refuting defenses, such as consent or recent fabrication; showing a common plan, scheme, design, or modus operandi, regardless of whether identity is at issue and regardless of whether the charged offense has a close nexus as part of a unified transaction to the other act; showing motive, opportunity, intent, preparation, including grooming of a victim, knowledge, identity, or absence of mistake or accident; or for any other matter for which it is relevant.

§ 16-10-301(3), C.R.S.2009; see also CRE 404(b); People v. Underwood, 53 P.3d 765, 769 (Colo.App.2002); People v. Wallen, 996 P.2d 182, 185 (Colo.App.1999).

Before the court admits evidence of other crimes, wrongs, or acts, the other act evidence must satisfy CRE 404(b) and the test in People v. Spoto, 795 P.2d 1314 (Colo.1990). The court must assure that (1) the prior act relates to a material fact; (2) it is logically relevant in that it makes the existence of a material fact more or less probable than it would be without the evidence; (3) its logical relevance is independent of the prohibited intermediate inference that the defendant has a bad character; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Rath, 44 P.3d at 1038; Spoto, 795 P.2d at 1318.

The trial court must also consider the strength of the evidence proving the commission of the other act, the similarities between the acts, the interval of time between the acts, the need for the evidence, and the degree to which the evidence will inflame the hostility of the jury. Adrian v. People, 770 P.2d 1243, 1246 (Colo.1989); People v. Janes, 942 P.2d 1331, 1336 (Colo.App.1997).

Here, the prosecution filed a pretrial notice of its intent to introduce, under section 16-10-301 and CRE 404(b), other act evidence that defendant sexually assaulted D.C. The prosecution maintained that the underlying facts of the prior incidents were similar to those supporting the charge in the current case and that such evidence showed defendant's intent. Specifically, the prosecutor asserted,

[There is] going to be discussion in the jury room about whether [the] contact [in this case] could have been incidental. I have to prove beyond a reasonable doubt this occurred, over the clothes contact; if it was for sexual assault purposes, essentially. There is no stronger evidence on this planet, obviously, than of what was in [defendant's] mind, what his intentions were, than this evidence as related to [D.C.].

Over defendant's objection, the trial court granted the prosecution's motion to admit D.C.'s testimony regarding the assaults to show defendant's intent:

I do agree that there is some necessity and highly productive information to be gained by talking...

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