People v. Aldrich

• Decision Date: 13 August 1992
• Docket Number: No. 90CA0871,90CA0871
• Citation: 849 P.2d 821
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas D. ALDRICH, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 821

849 P.2d 821

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas D. ALDRICH, Defendant-Appellant.

No. 90CA0871.

Colorado Court of Appeals Div. V.

Aug. 13, 1992.

Rehearing Denied Sept. 10, 1992.

Certiorari Denied March 22, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Timothy R. Twining, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Lisa D. Hamilton-Fieldman, Deputy State Public Defender, Patrick J. Mulligan, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge ROTHENBERG.

The defendant, Douglas Aldrich, appeals the judgment of conviction entered on jury verdicts finding him guilty of three counts of sexual assault on a child. We affirm.

In August 1988, the defendant's two nieces, B.H., age five, and C.H., age seven, together with M.W., the six-year-old daughter of a family friend, spent two weeks with the defendant, his wife, and their young son at their home.

Eight months later, following a school program on sexual abuse prevention, C.H. alleged that the defendant had assaulted her sexually during the August visit. She and the other two girls were then questioned by their parents and the police and all three made similar accusations.

The defendant was charged in a three-count information, and a jury trial was held in February 1990. In his opening statement, without having given prior notice of his intent to do so, defense counsel told the jury that C.H. had been the victim of a previous incident of sexual abuse and that the perpetrator was not defendant. The court granted the People's motion to strike and to exclude any reference to that incident on the grounds that the defendant had failed to follow the procedural requirements of Colorado's rape shield statute, § 18-3-407, C.R.S. (1986 Repl.Vol. 8B).

At trial, both C.H. and M.W. testified concerning numerous specific incidents of sexual assault during their two week visit with the defendant. C.H. also testified that the defendant had shown her magazines containing pictures of naked "grown up girls and boys" and that he had told her, "This is how you're going to grow up." Later, over the defendant's objection, the court permitted the introduction of magazines depicting explicit sexual matters which had been found in a basement crawl space during the execution of a search warrant at the defendant's home shortly after the allegations of sexual abuse had been made. C.H. did not see or identify these magazines at trial.

B.H., who was then seven years old, was also called to testify. Despite her earlier statements that defendant had touched her sexually, at trial B.H. was unable to identify the defendant and testified that "nothing bad" had happened to her. After that testimony and over the defendant's objection, the court permitted a deputy sheriff to testify concerning B.H.'s earlier statements to him which did describe sexual conduct toward B.H. by the defendant.

M.W.'s treating psychotherapist also testified as an expert about the professional standards now used to assess the credibility of children who make accusations of sexual abuse. During that testimony, she referred to certain of M.W.'s statements regarding the sexual assaults by the defendant against her and the other girls. The defendant did not object to this testimony.

Although the court denied the defendant's pre-trial motion to compel the prosecution to elect the specific incidents of conduct upon which it would rely at trial, the court did require the prosecution to elect specific incidents at the close of the trial. These specific incidents were also identified in the jury's instructions.

The defendant now contends that the trial court erred by: (1) refusing to admit evidence of C.H.'s prior sexual assault; (2) not requiring the prosecution to elect specific incidents of abuse until the instruction phase of the trial; (3) not giving limiting instructions concerning similar transaction evidence; (4) allowing hearsay testimony by the deputy sheriff and the psychotherapist about what the children told them without giving cautionary jury instructions; and (5) admitting the explicit adult magazines because their probative value was substantially outweighed by their prejudicial effect. We reject all of defendant's contentions.

I.

Citing State v. Budis, 243 N.J.Super. 498, 580 A.2d 283 (1990), the defendant argues that involuntary sexual conduct is not within the protection of the rape shield statute because evidence of such conduct does not establish "any of the classic inferences the law was meant to interdict." He further claims that, by excluding evidence of a prior assault, the court unconstitutionally denied him the ability to establish his defense that C.H. and, through her, the other girls had precocious sexual knowledge or that C.H. had mistakenly attributed the assaultive conduct of another person to him. We disagree.

Section 18-3-407, C.R.S. (1986 Repl.Vol. 8B) provides that evidence of specific instances of the victim's prior or subsequent sexual conduct is presumed to be irrelevant unless it is evidence of sexual conduct with the defendant or evidence of "the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the ... acts charged were or were not committed by the defendant."

Under the statute, if neither of these exceptions is applicable and the defendant wishes to present evidence of the victim's prior sexual conduct, he must file a written motion and an affidavit stating his offer of proof thirty days prior to trial, after which the court must hold an in camera hearing to determine if the proposed evidence is relevant to a material issue in the pending case.

Before the rape shield statute was enacted, evidence of previous sexual conduct could be used to undermine a sexual assault victim's credibility or to give rise to an inference that the victim had consented, thus discouraging victims from reporting and prosecuting sexual assaults. People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978). The statute "reflects a major public policy decision by the General Assembly ... that victims of sexual assaults should not be subjected to psychological or emotional abuse in court as the price of their cooperation in prosecuting sex offenders." It strikes a balance between the defendant's right to confront his accuser and the victim's privacy interest by "conditioning admission of evidence of the victim's sexual history on the defendant's preliminary showing that it is relevant." People v. McKenna, supra.

Although neither the General Assembly nor our courts have defined the term "prior sexual conduct," courts in other jurisdictions have construed their rape shield statutes to include prior sexual assaults. See State v. Oliver, 158 Ariz. 22, 760 P.2d 1071 (1988) (rape shield case law extends to child molestation cases because children may be even more adversely affected than adults by unwarranted or unreasonable inquiry); State v. Johnson, 102 N.M. 110, 692 P.2d 35 (1984) (statute is not limited to sex by consent, and prior rape is sexual conduct within meaning of statute). But see State v. Carver, 37 Wash.App. 122, 678 P.2d 842 (1984) (rape shield statute does not apply to nonconsensual sexual conduct).

The procedural provisions of the rape shield statute permit the court, rather than the proponent of the evidence, to determine the relevance of such evidence. The in camera hearing allows a full presentation of the defendant's offer of proof without subjecting the victim to a public airing of past voluntary or involuntary sexual conduct. By requiring the determination to be made before trial, and out of the jury's presence, the statute not only protects the victim from harassment or humiliation, but also serves the state's legitimate interests in preventing surprise at trial and undue delay.

Accordingly, we adopt the reasoning of courts which have held that the purposes of the rape shield statute are served by requiring a preliminary judicial determination of the relevance of prior sexual assault.

Here, the defendant knew before trial that C.H. had been sexually assaulted previously, and thus, he could have complied with the procedural requirements of the rape shield statute. This would have allowed the court to determine whether evidence of the earlier assault was relevant. However, by substituting his judgment for that of the court, the defendant defeated the protective purposes of the statute.

In view of our holding that the rape shield statute encompasses involuntary acts within the meaning of prior sexual conduct, we necessarily reject the defendant's contention that the rape shield statute was unconstitutional as applied. See Michigan v. Lucas, 500 U.S. 145, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (failure to comply with the notice and hearing requirements of a state's rape shield statute could justify preclusion of relevant evidence).

Here, the trial court did not prevent the defendant from complying with the statutory pretrial procedures to obtain a hearing on the relevance of the evidence. Rather, the defendant chose not to do so. In the face of this failure to comply, the court properly applied the statutory presumption of irrelevance.

II.

The defendant next contends that he was denied a fair trial because the court did not require election of specific incidents of abuse until the instruction phase of the trial. He further asserts that this error was exacerbated by the court's failure to give limiting instructions pursuant to § 16-10-301, C.R.S. (1986 Repl.Vol. 8A). Again, we disagree.

If there is evidence of many acts of sexual assault on a child, any one of which would constitute the offense charged, the prosecution may be compelled to select the transaction on which it relies for a conviction, both to ensure...