People v. Brewer
| Decision Date | 17 November 2016 |
| Citation | 44 N.Y.S.3d 339,66 N.E.3d 1057,28 N.Y.3d 271,2016 N.Y. Slip Op. 07704 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Timothy BREWER, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), and Timothy P. Donaher, Public Defender, Rochester, for appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), for respondent.
In this case involving the defendant's sexual abuse of two minor girls, we must decide whether the trial court abused its discretion as a matter of law by allowing the People to elicit evidence of the distinctive manner in which he engaged in sexual acts with consenting adult women. We conclude that the trial court did not err in admitting this evidence, which corroborated the testimony of the two minor victims, because it was relevant and highly probative, and its probative value was not outweighed by the potential for prejudice.
The two victims in this case are sisters. When MD was nine and OD was seven, they lived in Rochester with their mother and defendant. Though defendant, who was their mother's boyfriend, was not their biological father, they called him "dad." At the time they lived there, defendant, their mother, and numerous other adults used the house to use and sell drugs and engage in sexual acts. Most often, these activities took place in a closet defendant called the "bat cave."
MD and OD each described being sexually abused by defendant, and the particular method he used: he pulled them into a closet or back bedroom and forced them to perform oral sex on him, while he smoked crack with his shirt pulled over his head. After one of these incidents, MD left defendant and immediately disclosed to her mother what had happened. The mother gathered up MD, OD, and the rest of her children and moved out of the house.
At issue here is the evidence the People sought to introduce on their direct case pursuant to what they delineated as a pretrial Molineux application. The prosecutor wanted to elicit that the abuse of the girls had started before they moved to Rochester; that defendant frequently beat them with a belt; that defendant rented out the "bat cave" to others in the neighborhood to use as a space for drug use and sex; that when the police arrested defendant in the house, pursuant to a search warrant, they recovered crack cocaine; and, most relevant here, that defendant was a habitual crack user and engaged in oral sex with the girls' mother and other consenting adult women in the exact same manner as he had forced the girls to: in a closet, with his shirt pulled over his head, while smoking crack. The People planned to introduce this evidence about defendant's sexual habit through direct testimony from their mother. In their written application, the People argued that the proffered evidence would aid the jury in understanding the unique dynamics of the particular household and family, and in making credibility determinations.
The trial court heard argument on the applications and refused to allow evidence of the beatings with the belt, the renting out of the closet, and the recovery of drugs during the execution of the search warrant. With respect to defendant's consensual oral sex with adult women in the bat cave while smoking crack, defense counsel argued that the drug use and the sexual acts were "clearly prejudicial and not probative enough for [the] Court to exercise its discretion and allow that testimony." The People argued, in addition to the reasons stated in their written application, that the evidence was relevant because it demonstrated a pattern of behavior. The court ruled that the People could elicit testimony from the mother about her own observations and experiences with defendant, but limited the testimony about other adult women to those for which she was able to provide names and dates, and had personally observed engaging in sexual acts with defendant. After hearing testimony from the mother, both girls, and defendant himself, the jury found defendant guilty of all charges. On appeal, defendant's judgment was affirmed by the Appellate Division (129 A.D.3d 1619, 12 N.Y.S.3d 453 [4th Dept.2015] ). A Judge of this Court granted defendant leave to appeal (26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 [2015] ), and we now affirm.
The Appellate Division correctly concluded that evidence of defendant's drug use was an uncharged crime or prior bad act, and that it could be properly admitted as Molineux evidence (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286 [1901] ) because it was not proffered to show defendant's propensity toward crime, but to corroborate details of the victims' testimony (129 A.D.3d at 1620, 12 N.Y.S.3d 453 ). We agree that evidence of defendant's use of crack cocaine while engaging in sexual acts was not overly prejudicial in the context of this trial. Further, the trial court prohibited the People from introducing evidence of the crack cocaine recovered from defendant during the execution of the search warrant, thereby exercising its discretion in permitting evidence of drug use only as it pertained to the sex acts described by the victims.
We further agree with the Appellate Division's conclusion that evidence of defendant's prior sexual encounters with the girls' mother and another consenting adult woman was not Molineux evidence, "because it was neither a crime nor a prior bad act for him to receive consensual oral sex from an adult in a closet with his T-shirt pulled over his head" (129 A.D.3d at 1620, 12 N.Y.S.3d 453 ). Molineux analysis is limited to the introduction of a prior uncharged crime or a prior bad act. It should not be used to evaluate a prior consensual sexual act between adults.1
In the context of this case, we also note that evidence of defendant's prior sexual acts with adult women is not "propensity" evidence in its traditional sense. When we limit Molineux or other propensity evidence, we do so for policy reasons, due to fear of the jury's "human tendency" to more readily "believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime" (People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59 [1981], citing Molineux, 168 N.Y. at 313, 61 N.E. 286 ). But here, that defendant had engaged in oral sex with consenting adult women, while in a closet smoking crack with his shirt pulled over his head, showed no propensity to commit the crimes for which he was on trial. That this evidence corroborated the girls' accounts does not render it propensity evidence, because corroboration and propensity are distinct concepts. Because "there [was] a proper nonpropensity purpose, the decision whether to admit evidence of defendant's prior ... acts rests upon the trial court's discretionary balancing of probative value and unfair prejudice" (People v. Frankline, 27 N.Y.3d 1113, 1115, 36 N.Y.S.3d 834, 57 N.E.3d 26 [2016], quoting People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009] ).
The trial court here properly considered and admitted the evidence using the appropriate factors: its relevance, probative value to the People's case, and potential prejudice to defendant (see generally People v. Harris, 26 N.Y.3d 1, 5, 18 N.Y.S.3d 583, 40 N.E.3d 560 [2015] ). Here, there is no real dispute that the evidence was relevant and probative, as it tended to support the girls' account of their abuse by corroborating the peculiar manner in which defendant engaged in oral sex. Notably, as the Appellate Division pointed out, the People established that the girls had never witnessed defendant's sexual encounters with their mother or other women, and as the prosecutor argued in her summation, the girls were describing their own experiences.
Finally, the trial court did not abuse its discretion in concluding that the probative value of the evidence was not outweighed by potential prejudice. Plainly, almost all relevant, probative evidence the People seek to admit in a trial against a defendant will be, in a sense, prejudicial. The People generally wish to...
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