People v. Jones
Decision Date | 06 October 2011 |
Docket Number | No. 09CA2362.,09CA2362. |
Citation | 313 P.3d 626 |
Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Michael Lee JONES, Defendant–Appellant. |
Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
John W. Suthers, Attorney General, Katherine A. Aidala, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Nora V. Kelly, P.C., Nora V. Kelly, Denver, Colorado, for Defendant–Appellant.
Opinion by Judge J. JONES.
Defendant, Michael Lee Jones, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault and unlawful sexual contact. We reverse the judgment and remand the case for a new trial.
On December 1, 2005, J.R. called emergency dispatch and said she had been sexually assaulted. Three police officers responded to her apartment, where they found her upset and crying and smelled the odor of alcohol on her breath. She had no visible injuries. The officers took her to a hospital to have a sexual assault examination performed.
At the hospital, J.R. told the triage nurse that she had been raped. When a doctor examined her, she complained of neck and jaw pain resulting from her assailant holding her mouth tightly closed while he assaulted her. Thereafter, she saw a sexual assault nurse examiner (SANE nurse), who collected forensic evidence and examined her for signs of sexual assault. The SANE nurse found one visible injury: a half-centimeter long tear to J.R.'s genitalia. The nurse later testified that such tears were common injuries in sexual assault victims but were also consistent with consensual sexual intercourse.
After the police determined that the DNA in the forensic evidence matched defendant's DNA, the People charged him with numerous offenses. However, only the charges for which defendant was ultimately convicted were tried.
Before trial, J.R. died of causes unrelated to the alleged assault. Defendant moved to prevent the People from introducing the tape recording of J.R.'s emergency dispatch call and her statements to the medical personnel, arguing that they were testimonial. After a hearing, the district court concluded that (1) the emergency dispatch tape recording and J.R.'s statements about the assault to the SANE nurse were testimonial and, therefore, inadmissible; (2) the SANE nurse could, however, testify about her examination of J.R. and the conclusions she drew therefrom; and (3) J.R.'s statements to the triage nurse and doctor were admissible. Defendant also moved to prevent the People from introducing CRE 404(b) evidence that he had allegedly sexually assaulted three other women. The district court denied the motion, concluding that the evidence was admissible to show “common plan, scheme, or design, and to rebut the defense of consent.”
After a five-day trial, a jury found defendant guilty of sexual assault and unlawful sexual contact.1 The district court sentenced defendant to twenty-four years to life in the custody of the Department of Corrections for sexual assault, and twelve years for unlawful sexual contact, to be served concurrently, plus twenty years of mandatory parole.
Defendant contends that the district court erred by (1) admitting evidence under CRE 404(b) that he had allegedly sexually assaulted two other women 2 because those incidents were insufficiently similar to his alleged assault of J.R.; (2) admitting the police officers' and medical personnel's testimony about J.R.'s allegedly testimonial statements to them, in violation of the federal Confrontation Clause; and (3) denying his motion requesting the presiding judge's recusal after the judge had found defense counsel in contempt of court during trial.
Rule 404(b) prohibits the admission of evidence about a defendant's prior acts when offered to show his bad character and that he acted in conformity with that character. Kaufman v. People, 202 P.3d 542, 552 (Colo.2009). However, other act evidence is admissible for other reasons, including to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....” CRE 404(b); see Kaufman, 202 P.3d at 552.
Similarly, section 16–10–301, C.R.S.2010, provides that in sexual offense prosecutions, the People may introduce other act evidence
for any purpose other than propensity, including: Refuting defenses, such as consent ...; [or] 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.
§ 16–10–301(1), (3). Before admitting evidence under this section, the district court must perform a Rule 404(b) admissibility analysis. People v. Snyder, 874 P.2d 1076, 1078 (Colo.1994); People v. Martinez, 36 P.3d 154, 158–59 (Colo.App.2001). The court must determine that (1) the evidence relates to a material fact; (2) the evidence is logically relevant; (3) the logical relevance is independent of the intermediate inference that the defendant was acting in conformity with his bad character; and (4) the evidence has probative value that is not substantially outweighed by the danger of unfair prejudice. Kaufman, 202 P.3d at 552;accord People v. Spoto, 795 P.2d 1314, 1318 (Colo.1990).
Because the district court has substantial discretion in determining whether Rule 404(b) evidence is admissible, we will not overturn the court's decision unless it is manifestly arbitrary, unreasonable, or unfair. Kaufman, 202 P.3d at 553. And, because the People agree that defendant preserved this issue in the district court, if we determine that the court abused its discretion, we review any error for harmless error. Yusem v. People, 210 P.3d 458, 469 & n. 16 (Colo.2009); People v. Munoz, 240 P.3d 311, 319 (Colo.App.2009). An error is not harmless where there is a reasonable probability that it contributed to a defendant's conviction by substantially influencing the verdict or impairing the fairness of the trial. Yusem, 210 P.3d at 469;People v. Rincon, 140 P.3d 976, 979–80 (Colo.App.2005).
Defendant concedes that the evidence about the two alleged assaults related to a material fact—whether he caused J.R. to submit to sexual intercourse “by means of sufficient consequence reasonably calculated to cause [her] submission against [her] will.” See§ 18–3–402(1)(a), C.R.S.2010 (defining sexual assault). Therefore, we need not address the first prong of the Spoto test. Our analysis below focuses on the second and third prongs, and therefore we set out the law applicable to those considerations.
Evidence is logically relevant if it has any tendency to make the existence of a material fact more or less probable than it would be without the evidence. Yusem, 210 P.3d at 463;seeCRE 401. In a sexual assault prosecution, evidence of the defendant's other alleged sexual assaults may be logically relevant under the “doctrine of chances.” People v. Everett, 250 P.3d 649, 656–60 (Colo.App.2010); see People v. Rath, 44 P.3d 1033, 1042 & n. 7 (Colo.2002). This doctrine posits that evidence that a defendant repeatedly performed an unusual act over time decreases the probability that he acted accidentally or innocently. See Everett, 250 P.3d at 656;see also Douglas v. People, 969 P.2d 1201, 1206 n. 6 (Colo.1998) ( “ ” . Thus, in a sexual assault prosecution, if the defendant claims that the complainant consented, or that there is an absence of evidence of lack of consent, as defendant did here, evidence that he committed other sexual offenses may be admissible under the doctrine of chances because
Everett, 250 P.3d at 657 (quoting People v. Balcom, 7 Cal.4th 414, 27 Cal.Rptr.2d 666, 867 P.2d 777, 787 (1994) (Arabian, J., concurring)).
The third prong of the Spoto test requires other act evidence to be logically relevant absent the impermissible inference that because the defendant committed the other acts, he had a propensity to commit the charged offense and, therefore, committed it. Yusem, 210 P.3d at 466. Evidence admitted under the doctrine of chances does not rely on this inference where the evidence of the defendant's repeated unusual conduct leads to an objective or statistical likelihood that he committed the actus reus rather than a subjective probability that he did so based on his character. Spoto, 795 P.2d at 1319;People v. Herron, 251 P.3d 1190, 1197 (Colo.App.2010) ( ). Thus, “it is [the] defendant's tendency to commit an act in a particular way that is relevant, not [the] defendant's general character.” People v. Delgado, 890 P.2d 141, 144 (Colo.App.1994).
To ensure that evidence based on the doctrine of chances has probative value independent of an impermissible inference about the defendant's character, the court must determine that (1) the evidence of the other acts is similar to the charged crime; (2) the number of unusual occurrences in which the defendant has been involved exceeds the frequencyrate for the general population; and (3) there is a...
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