People v. Allen, 78-028

• Decision Date: 12 April 1979
• Docket Number: No. 78-028,78-028
• Citation: 42 Colo.App. 345,599 P.2d 264
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cornelius J. ALLEN, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 264

599 P.2d 264

42 Colo.App. 345

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cornelius J. ALLEN, Defendant-Appellant.

No. 78-028.

Colorado Court of Appeals, Div. II.

April 12, 1979.

Rehearing Denied May 10, 1979.

Certiorari Denied Aug. 27, 1979.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Susan P. Mele-Sernovitz, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Harry H. Haddock, Denver, for defendant-appellant.

ENOCH, Judge.

Defendant appeals his conviction by a jury of three counts of sexual assault on three different children and one count of attempted sexual assault on a fourth child. We affirm.

Defendant contends that the court erred in not granting his motion for severance of the counts for purposes of trial. We do not agree.

A motion for severance is directed to the sound discretion of the trial court, and a defendant is not entitled to relief from joinder unless he can show unfair prejudice caused by the joinder of offenses. People v. Trujillo, 181 Colo. 350, 509 P.2d 794 (1973). Crim.P. 14. Such prejudice is not shown where the evidence of each transaction would be admissible in separate trials to show intent, common scheme, plan, design, or modus operandi. People v. Rivas, Colo., 591 P.2d 83 (1979); People v. Martinez, 190 Colo. 507, 549 P.2d 758 (1976). Pursuant to § 16-10-301, C.R.S.1973 (1978 Repl.Vol. 8), evidence of similar transactions may be introduced in a prosecution for sexual assault. See Pigford v. People, Colo., 593 P.2d 354 (1979). Thus joinder of sexual assault offenses is permissible where the evidence tending to prove each offense would be admissible in separate trials to show common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or intent.

The evidence here shows intent and a common scheme or modus operandi by defendant. He established a pattern of returning home when his wife was at work and a babysitter was caring for their young children or his older daughter was at his home and was babysitting a neighbor's children. After taking a shower, defendant would parade around the house nude or wearing only a short night shirt. Frequently he would use a vibrator and expose himself to the babysitter or the children. Then he would attempt to fondle the girls or try to force them to fondle him. Although each of the four incidents which formed the bases for the four counts happened at different times, they all occurred within less than a four-month period. The four girls' testimony shows they each experienced similar conduct by defendant prior to the assault or attempted assault. And in each case defendant threatened the child against telling her parents. Three of the complaining witnesses were babysitters at different times and the fourth witness was one of the children being cared for by the defendant's daughter.

The similarity of the events thus refutes defendant's position that the victims fabricated the charges. In addition the testimony tends to show a particular modus operandi. See People v. Pigford, supra. The evidence of the similar events would therefore be admissible at separate trials, and the court did not...