People v. Garcia

• Decision Date: 04 October 2007
• Docket Number: No. 05CA0016.,05CA0016.
• Citation: 179 P.3d 250
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald L. GARCIA, Defendant-Appellant.
• Court: Colorado Court of Appeals

179 P.3d 250

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald L. GARCIA, Defendant-Appellant.

No. 05CA0016.

Colorado Court of Appeals, Div. IV.

October 4, 2007.

As Modified on Denial of Rehearing November 21, 2007.

Certiorari Dismissed January 29, 2008.

John W. Suthers, Attorney General, Alexander C. Reinhardt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge WEBB.

Defendant, Donald L. Garcia, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault (F2), § 18-3-402(1)(a), C.R.S.2007, and sexual assault with the use of a deadly weapon (F4), § 18-3-402(1)(a) & (5), C.R.S.2007. His defense was consent. Because we conclude that the trial court erroneously excluded evidence concerning the sexual relationship between defendant and the victim, we reverse and remand for a new trial.

I. Background

Defendant and the victim had a troubled but intimate relationship from July 2002 until at least the end of January 2003. According to the victim, she then told defendant that the relationship was over, although she admitted that they remained in contact and occasionally met. According to defendant, the intimate relationship continued, and they had consensual sex about a week before July 21, 2003, the date of the events giving rise to the charges.

Before trial, defendant filed a "Motion to Introduce Evidence of Prior Sexual Conduct of [the victim] pursuant to C.R.S. 18-3-407." The motion referenced both the victim's prior sexual relationship with defendant and her sexual relationships with other men. Defendant argued that this evidence was relevant to consent and was necessary for impeachment. The trial court found, "I don't think there's any of the offer [of proof] that even fits an exception [to the rape shield statute]." See § 18-3-407(1), C.R.S.2007.

Defendant sought clarification, arguing, "The Court is not precluding information that is relevant in reference to their relationships, being things they have done together? Because I believe that is an exception to the rape shield statute." The court responded, "I guess it's hard to rule in advance on that particular issue. . . ."

According to the victim's trial testimony, on July 21 she returned to her apartment and noticed defendant in the hallway after she had her key in the door lock. Defendant then turned the key and entered her apartment, saying that he was just there to talk.

After fifteen to twenty minutes of conversation, defendant said, "Well, I guess I'm just going to have to do this," and pulled out a knife. He put the knife to her throat, dragged her into the bedroom by the hair, and threw her on the bed. He then bound her hands behind her back and her ankles with athletic tape. He also produced a bottle of liquor and made her drink some of it. He said, "[W]e're going to have a little party and then you're going to watch me die."

Defendant used the knife to cut off her shirt and bra, pressed the knife to her throat, and forced her to perform fellatio. He then said, "I'm going to do what you've not let me do" or "that you didn't want me to do," which she interpreted to mean anal sex. The victim explained that she was afraid because she did not want to engage in such an act and had never wanted to, and defecated on herself.

After washing her, defendant removed the tape and allowed her to go to the bathroom for a cigarette. They talked further and defendant again said that he intended to kill himself. Defendant then asked the victim if they could engage in sexual intercourse. Although she at first said no, she eventually agreed because of the knife and "his state of being through all this." After they had intercourse, defendant left the apartment. A couple of hours later, the victim contacted a friend, who telephoned the police.

Following the victim's direct testimony, defense counsel sought leave to impeach the victim, and by way of an offer of proof represented that if defendant testified, he would describe the following:

• He and the victim had continued an intimate relationship from January 2003 until about a week before the July 21, 2003 incident;

• He and the victim had engaged in consensual anal sex;

• The victim had a rape fantasy that they had acted out on numerous occasions; and

• They had engaged in bondage and rough sex at her request.

The prosecution responded that the court's pretrial ruling barred such evidence. The trial court ruled that "the prior sexual history that was consensual between the alleged victim here and [defendant] is irrelevant" to show that the victim consented to the acts underlying the charges.

During cross-examination, the victim admitted having told a detective that defendant had also said, "[R]emember your rape fantasy? Well, here it is." But the victim denied ever having had a rape fantasy.

Before defendant testified, the trial court told him during his Curtis advisement:

I have ruled under Colorado law what we refer to as the rape shield statute, if you do testify, you will not be able to testify about any sexual matters between you and [the victim] that occurred prior to July 21st of 2003, that is, you cannot testify as to any consensual sex that occurred, sexual acts that occurred between the two of you prior to this date. And I think it's been made clear that that does not keep you from testifying that what happened on July 21st was consensual or some sexual fantasy but you cannot testify about any consensual sex or fantasy sex that was done prior to July 21st, 2003.

Defendant testified that although he picked up a knife from the counter while in the apartment because he and the victim were arguing, he soon put it down and told her, "I just came here to talk to you . . . [and I] didn't want to fight with you." He explained that she voluntarily drank the liquor. He said that all sexual conduct between them was consensual and that the victim had requested he bind her hands and feet. The trial court sustained the prosecutor's objection and barred defendant from testifying that the victim said, "[I]f we could do it the way I like to do it, my favorite fantasy," and describing what that meant to him.

II. The Rape Shield Statute

If a statute is unambiguous, we look no further than its plain language. People v. Renfro, 117 P.3d 43, 50 (Colo.App.2004).

Section 18-3-407(1) provides in relevant part:

Evidence of specific instances of the victim's or a witness's prior or subsequent sexual conduct, opinion evidence of the victim's or a witness's sexual conduct, and reputation evidence of the victim's or a witness's sexual conduct may be admissible only at trial and shall not be admitted in any other proceeding. . . . At trial, such evidence shall be presumed to be irrelevant except: (a) Evidence of the victim's or witness'[s] prior or subsequent sexual conduct with the actor. . . .

(Emphasis added.)

Neither party asserts ambiguity in subparagraph (a), and we discern none.

The purpose of the statute "is one of public policy: to provide rape and sexual assault victims greater protection from humiliating and embarrassing public `fishing expeditions' into their past sexual conduct, without a preliminary showing that evidence thus elicited will be relevant to some issue in the pending case." People v. Golden, 140 P.3d 1, 4 (Colo.App.2005)(quoting People v. McKenna, 196 Colo. 367, 371-72, 585 P.2d 275, 278 (1978)).

Evidence excepted from the statute "is not precluded by the statutory presumption of irrelevance or the procedural safeguards which are given to other evidence of a prosecutrix' past sexual activity. Such evidence is subject only to the usual rules of evidence." People v. Martinez, 634 P.2d 26, 31 (Colo.1981).

However, such evidence "is not automatically admissible:" "Specifically, a trial court must apply CRE 403 to balance the probative value of the proffered evidence against any possible unfair prejudice." People v. Harris, 43 P.3d 221, 225-26 (Colo. 2002). In striking this balance, the court affords the evidence "its maximum probative value and minimum unfair prejudice." Fletcher v. People, ___ P.3d ___, ___, 2007 WL 1175824 (Colo. No. 05SC646, Apr. 23, 2007).

Evidence must be both material and relevant to be admissible. Id. at ___.

Materiality concerns the relation between the propositions that the evidence is offered to prove and the issues in the case. To be material, the evidence must relate to a "fact that is of consequence to the determination of the action." We necessarily look to . . . the crime charged to make this determination.

Id. at ___ (quoting CRE 401) (citations omitted).

Material evidence must also be relevant. Id. To be relevant, evidence must have a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable." CRE 401.

Evidence excepted from the rape shield statute "is relevant if it supports the defendant's claim of innocence." See Martinez, 634 P.2d at 31. Remoteness in time may affect the relevance determination. Fletcher, ___ P.3d at ___.

A trial court has broad discretion when ruling on admissibility. Fendley v. People, 107 P.3d 1122, 1126 (Colo.App.2004). However, an erroneous evidentiary ruling may rise to the level of constitutional error if it deprives a defendant of his right to present a defense or to conduct meaningful cross-examination on material issues. See People v. Cobb, 962 P.2d 944, 950 (Colo.1998) ("where the limits imposed prevent a criminal defendant from using cross examination to explore the bias or prejudice of a witness against him, the requirements of the Sixth Amendment are not met"); see also People v. Owens, ___ P.3d ___, ___, 2007 WL 1438674 (Colo.App. No. 05CA1577, May 17, 2007).

III. Prior Sexual Relationship and Sexual...