People v. Kyle, No. 01CA1221.

Docket NºNo. 01CA1221.
Citation111 P.3d 491
Case DateJuly 29, 2004
CourtCourt of Appeals of Colorado

111 P.3d 491

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Kenneth Harold KYLE, Defendant-Appellant

No. 01CA1221.

Colorado Court of Appeals, Div. II.

July 29, 2004.

Rehearing Denied November 18, 2004.

Certiorari Denied May 2, 2005.


111 P.3d 495
Ken Salazar, Attorney General, Lauren Edelstein Park, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

David S. Kaplan, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Kenneth Harold Kyle, appeals the judgment of conviction entered upon a jury verdict finding him guilty of sexual assault on a child and sexual assault on a child as part of a pattern of sexual abuse. He also appeals his adjudication as a habitual sex offender and the sentence imposed. We affirm in part, reverse in part, and remand for resentencing.

The victim, a boy who had been in state custody much of his life, revealed during therapy at the Emily Griffith Treatment Center (EGTC), where the Department of Human Services (DHS) had placed him, that defendant sexually abused him beginning in August 1997, when he was thirteen. The victim testified at trial that he and defendant engaged in frequent acts of masturbation, oral sex, and anal sex, with the last act occurring just before he turned fifteen.

Before trial, defendant filed a motion seeking to admit evidence that another perpetrator previously had sexually assaulted the victim. Defendant asserted that the victim had "repackaged" the details of the previous assaults to fabricate suspiciously similar allegations against him. The trial court denied the motion.

Also before trial, defendant subpoenaed the victim's records from DHS and EGTC, contending that the records contained relevant evidence concerning the victim's fabrication of past and present allegations; the victim's drug or alcohol addiction, which may have affected his ability to perceive or recollect;

111 P.3d 496
and other circumstances surrounding the present period of alleged abuse

Both DHS and EGTC moved to quash the subpoenas. After a hearing, the trial court denied access to both sets of records. It declined to perform an in camera review of the DHS records, determining that defendant had failed to make the requisite showing of necessity. It found the EGTC records to be privileged pursuant to the psychologist-patient privilege set forth in § 13-90-107(1)(g), C.R.S.2003. Later, during trial, the court rejected defendant's supplemental contention that the victim had waived his privilege as to the EGTC records.

At trial, the prosecution was permitted to introduce evidence of defendant's two prior sexual assaults on a child in the form of testimony by the prior victims, pursuant to § 16-10-301, C.R.S.2003, and CRE 404(b).

Following defendant's conviction, the trial court adjudicated him a habitual criminal and sentenced him pursuant to the Colorado Sex Offender Lifetime Supervision Act, § 18-1.3-1001, et seq., C.R.S.2003, to an indeterminate sentence of forty-eight years to life in the custody of the Department of Corrections.

I.

Defendant contends the trial court erred by excluding evidence that another perpetrator previously had sexually assaulted the victim. We disagree.

We review a trial court's determination concerning the relevance of proffered evidence for abuse of discretion and will not overturn the ruling unless it is manifestly arbitrary, unreasonable, or unfair. People v. Melillo, 25 P.3d 769 (Colo.2001).

Section 18-3-407(1), C.R.S.2003, known as the rape shield statute, creates a presumption that evidence relating to a rape victim's sexual conduct is irrelevant to the proceedings. People in Interest of K.N., 977 P.2d 868 (Colo.1999). Prior sexual victimization is considered "sexual conduct" under the rape shield statute. People v. Aldrich, 849 P.2d 821 (Colo.App.1992).

The purpose of the rape shield statute is to protect sexual assault victims from humiliating public fishing expeditions into their past sexual conduct, unless it is shown that the evidence is relevant to some issue in the case. People in Interest of K.N., supra. The statute reflects the General Assembly's intent to prevent victims of sexual assaults from being subjected to psychological or emotional abuse as the price of their cooperation in prosecuting sex offenders. People v. Harris, 43 P.3d 221 (Colo.2002).

Here, the victim testified at trial that the abuse in this case commenced after he spent the night at defendant's house. The next morning, he woke to find defendant kneeling by the side of the couch, fondling his penis. Later that day, upon his return to defendant's house, he and defendant engaged in masturbation games and anal penetration. He also testified that on another occasion, he performed oral sex on defendant and that the abuse continued over the next several years.

The arrest affidavit in the other case asserted that the perpetrator began the abuse by kneeling at the side of the victim's bed and rubbing the victim's penis, after which the victim performed anal intercourse upon the perpetrator. The affidavit also asserted that the victim and the perpetrator engaged in subsequent acts of oral and anal sex over the next eighteen months.

A.

Defendant first asserts that his proffered evidence was admissible because the previous assault qualifies for admission under the exception for "similar evidence of sexual intercourse" set forth in § 18-3-407(1)(b), C.R.S.2003. We disagree.

The statutory presumption of irrelevance does not apply to "[e]vidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant." Section 18-3-407(1)(b).

In construing a statute, we must ascertain and effectuate the legislative intent, which is to be discerned, when possible, from

111 P.3d 497
the plain and ordinary meaning of the statutory language. People v. Longoria, 862 P.2d 266 (Colo.1993). Constructions that defeat the obvious legislative intent should be avoided and, when possible, a statute should be interpreted so as to give consistent and sensible effect to all its parts. People v. Dist. Court, 713 P.2d 918 (Colo.1986). We presume that the General Assembly intends a just and reasonable result when it enacts a statute, and we will not follow a statutory construction that leads to an unreasonable or absurd result. People v. Woellhaf, 87 P.3d 142 (Colo.App.2003)(cert. granted, Mar. 22.2004). We must endeavor to give effect to each word in a statute. City of Florence v. Bd. of Waterworks, 793 P.2d 148 (Colo.1990)

Here, defendant asserts that evidence of the victim's previous, factually similar assault falls within the ambit of "any similar evidence of sexual intercourse" because it explains the origin of the victim's detailed "sexual knowledge." The trial court determined that § 18-3-407(1)(b) applies only to evidence explaining the source or origin of physical evidence or condition, as indicated by the examples of "semen, pregnancy, [or] disease" in the first clause of § 18-3-407(1)(b). We agree with the trial court.

The plain meaning of "similar" is "having characteristics in common," or "very much alike." Webster's Third New International Dictionary 2120 (1986). Therefore, in § 18-3-407(1)(b), "similar evidence" refers to evidence having characteristics in common with, or very much like evidence showing the source or origin of "semen, pregnancy, [or] disease," all of which are examples of physical evidence or condition.

We agree with the People that if the General Assembly had intended the interpretation urged by defendant, it would have employed the words "any other evidence" instead of "similar evidence." See People v. Guenther, 740 P.2d 971 (Colo.1987)(it is presumed the General Assembly has knowledge of the legal import of the words it uses and that it intends each part of a statute to be given effect).

Moreover, acceptance of defendant's interpretation that "similar evidence of sexual intercourse" includes evidence of a victim's prior sexual conduct would defeat the purpose of the rape shield statute. Such an interpretation would render all the victim's prior sexual conduct relevant, in direct contradiction of the expressed intention to protect sexual assault victims from embarrassing probes into their personal lives. See People v. Harris, supra.

We therefore perceive no abuse of discretion in the trial court's refusal to admit evidence of the victim's prior sexual assault under § 18-3-407(1)(b).

B.

We also reject defendant's argument that evidence of the victim's prior sexual assault is admissible under § 18-3-407(2), C.R.S.2003, because it is relevant to show that the victim "repackaged" the facts of that assault to fabricate the allegations here.

If the evidence does not fall within one of the statutory exceptions contained in § 18-3-407(1), the presumption of irrelevance may nevertheless be rebutted when the defendant offers proof that the evidence is relevant to a material issue in the case. If the trial court determines the offer of proof to be sufficient, it must conduct an in camera hearing regarding the evidence. Section 18-3-407(2); People v. Murphy, 919 P.2d 191 (Colo.1996).

Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." CRE 401; People v. Harris, supra.

However, evidence within the ambit of § 18-3-407(2) is not automatically admissible, as it remains subject to the usual rules of evidence. Specifically, a trial court must apply CRE 403 to balance the probative value of the proffered evidence against any possible unfair prejudice. See People v. Harris,...

To continue reading

Request your trial
45 practice notes
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...the pattern of sexual abuse were committed within ten years prior to [or at any time after] the predicate offense.” People v. Kyle, 111 P.3d 491, 502 (Colo.App.2004). Thus, evidence of other acts of sexual contact is not similar transaction evidence offered to prove scheme, plan, intent, or......
  • People v. Jimenez, No. 04CA1098.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 16, 2008
    ...to plain error review. Griego v. People, 19 P.3d 1, 8 (Colo. 2001); People v. Dunlap, 124 P.3d 780, 793 (Colo.App.2004); People v. Kyle, 111 P.3d 491, 500 (Colo.App.2004); see People v. Ramirez, 56 P.3d 89, 93 (Colo.2002). Defendant argues, however, that the omission here constituted a "str......
  • People v. Greer, No. 08CA0329.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 21, 2011
    ...the pattern of sexual abuse were committed prior to or at any time after the predicate offense. § 18–3–405(2)(d); see also People v. Kyle, 111 P.3d 491, 502 (Colo.App.2004). A “[p]attern of sexual abuse” is “the commission of two or more incidents of sexual contact involving a child when su......
  • People v. Samuels, No. 06CA1560.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...Lowe, 660 P.2d 1261, 1265 (Colo.1983), abrogated in part on other grounds by Callis v. People, 692 P.2d 1045 (Colo.1984); People v. Kyle, 111 P.3d 491, 499 (Colo.App.2004) ("evidence of a defendant's behavior, including threats against witnesses or nonwitnesses, may be admissible to show th......
  • Request a trial to view additional results
45 cases
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...the pattern of sexual abuse were committed within ten years prior to [or at any time after] the predicate offense.” People v. Kyle, 111 P.3d 491, 502 (Colo.App.2004). Thus, evidence of other acts of sexual contact is not similar transaction evidence offered to prove scheme, plan, intent, or......
  • People v. Jimenez, No. 04CA1098.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 16, 2008
    ...to plain error review. Griego v. People, 19 P.3d 1, 8 (Colo. 2001); People v. Dunlap, 124 P.3d 780, 793 (Colo.App.2004); People v. Kyle, 111 P.3d 491, 500 (Colo.App.2004); see People v. Ramirez, 56 P.3d 89, 93 (Colo.2002). Defendant argues, however, that the omission here constituted a "str......
  • People v. Greer, No. 08CA0329.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 21, 2011
    ...the pattern of sexual abuse were committed prior to or at any time after the predicate offense. § 18–3–405(2)(d); see also People v. Kyle, 111 P.3d 491, 502 (Colo.App.2004). A “[p]attern of sexual abuse” is “the commission of two or more incidents of sexual contact involving a child when su......
  • People v. Samuels, No. 06CA1560.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...Lowe, 660 P.2d 1261, 1265 (Colo.1983), abrogated in part on other grounds by Callis v. People, 692 P.2d 1045 (Colo.1984); People v. Kyle, 111 P.3d 491, 499 (Colo.App.2004) ("evidence of a defendant's behavior, including threats against witnesses or nonwitnesses, may be admissible to show th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT