People v. Martinez, 98CA2518.

Citation36 P.3d 154
Decision Date26 April 2001
Docket NumberNo. 98CA2518.,98CA2518.
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Lee MARTINEZ, Defendant-Appellant.
CourtCourt of Appeals of Colorado

Certiorari Denied December 17, 2001.1

Ken Salazar, Attorney General, Lauren Edelstein Park, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Ann M. Aber, Deputy State Public Defender, James Grimaldi, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge METZGER.

Defendant, Richard Lee Martinez, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree sexual assault by penetration, second degree sexual assault by intrusion, attempt to commit second degree sexual assault by intrusion, first degree sexual assault by intrusion, and second degree burglary. We affirm.

The evidence at trial showed the following facts. On September 5, 1997, defendant, a student at a vocational-technical center, gave another student a ride home to Montrose. The victim, who was that student's sister, rode back to town with defendant to complete some errands. They had never met before that day.

On the way, defendant stopped at his house. The victim went inside with him; they both smoked marijuana and watched television. When defendant began to kiss the victim, she objected. He then picked her up, took her to the bedroom, disrobed her, put her on the bed, and sexually assaulted her digitally. These acts formed the basis of the second degree sexual assault by intrusion charge. Afterwards, he required her to perform fellatio on him. This act formed the basis of the second degree sexual assault by penetration charge.

Thereafter, defendant and the victim drove to town, did some shopping, and the victim bought defendant's dinner at a McDonald's restaurant. When defendant took the victim back to her house, he again picked her up after she strenuously resisted him, carried her into the bedroom, and attempted to have sexual relations with her. She told him "no"; he became upset and left. This conduct formed the basis of the attempted second degree assault by intrusion charge.

That evening, the victim told her sister what had happened. She said she had initially said "no" to defendant when he began his advances, but finally had said "yes" because she was afraid of him. Defendant later told the victim's sister to "tell [the victim] I'm sorry if I just went overboard."

On September 30, 1997, defendant entered the victim's house without permission. She ran for a knife, but defendant overpowered her. He carried her to the bedroom where he again threw her onto the bed, undressed her, and sexually assaulted her digitally. This conduct formed the basis of the first degree sexual assault by intrusion and second degree burglary charges. Afterwards, the victim chased him out of the house with a knife, and she reported that incident and the incidents of September 5 to the police. Defendant was later arrested.

While in custody, defendant wrote a letter to the Montrose County sheriff requesting that Mesa County authorities be advised that defendant had information regarding an unsolved 1979 homicide in Grand Junction. In a later interview with Mesa County authorities, defendant said he had forced nine women, including his sister, to have sex with him. Defendant repeated those assertions in a letter to the Mesa County District Attorney.

At trial, defendant argued the victim had consented to the September 5, 1997, incidents and that no sexual contact had occurred on September 30, 1997. Over defendant's objection, the trial court admitted the interview transcript and defendant's letters to refute the defenses of consent and recent fabrication for the September 5, 1997, incidents only. Evidence underlying defendant's two previous convictions for sexual assault was admitted to show a common plan, scheme, or design, modus operandi, intent, and preparation and to refute the defenses of consent and recent fabrication for all incidents.

The jury found defendant guilty of all charges.

I.

Defendant contends the trial court erred by admitting evidence of the prior sexual assaults because: (1) the court did not conduct the tests for admissibility as required by People v. Spoto, 795 P.2d 1314 (Colo.1990), and People v. Garner, 806 P.2d 366 (Colo. 1991), under the mistaken belief that § 16-10-301, C.R.S.2000, had superseded these tests; and (2) the evidence of the prior sexual assaults did not satisfy these tests. While we agree that the Spoto/Garner tests should have been employed, because the record supports the trial court's admission of the challenged evidence, reversal is not required.

A trial court has substantial discretion in deciding the admissibility of evidence of similar transactions, and its rulings will be upheld absent an abuse of that discretion. People v. Rodriguez, 914 P.2d 230, (Colo. 1996); see People v. Janes, 942 P.2d 1331 (Colo.App.1997)

. Even if a trial court employs an erroneous standard in determining the admissibility of similar transaction evidence, if the evidence is admissible and the foundational requirements for its admission are met, the defendant's conviction will not be overturned. People v. McKibben, 862 P.2d 991 (Colo.App.1993).

The People concede, and we agree, that the 1996 repeal and re-enactment of § 16-10-301 did not supersede all previous authority concerning the applicable tests for the admissibility of evidence of other misconduct.

The amended statute contains no new language that could be interpreted to erode the continued vitality of CRE 404(b), People v. Spoto, supra, People v. Garner, supra,

or their progeny. The statute is couched in permissive, not mandatory, language. Additionally, the fact that § 16-10-301 applies specifically to prosecutions for unlawful sexual behavior and for first degree murder does not eliminate the necessity of a CRE 404(b) analysis.

Furthermore, the legislative history of the amendment supports this interpretation. Testimony before the House Judiciary Committee was clear that the 1996 change "comports with [CRE] 404(b) and [CRE] 403," and "tracks" those rules of evidence. In discussing the purpose and scope of the amendment, one witness stated: "Then there's the true cookbook of exactly what the trial court shall do that follows a whole line of cases[,] Stull [v. People, 140 Colo. 278, 344 P.2d 455 (1959)], [People v.] Honey [198 Colo. 64, 596 P.2d 751 (1979)

] and a number of cases that have occurred. . . ." Hearing on H.B. 96-1181 before the House Judiciary Committee, 60th General Assembly, First Session (February 1, 1996)(testimony of Ray Slaughter of the Colorado District Attorney's Council).

For these reasons, we conclude that the trial court erred in accepting the prosecution's argument that § 16-10-301 superseded previous authority regarding the admissibility of evidence of other misconduct and in not engaging in a Spoto/Garner analysis.

Nevertheless, because the record supports the trial court's admission of the other misconduct evidence here under the appropriate standard, reversal is not required.

To be admitted, the other misconduct evidence must relate to a material fact and must be logically relevant. The logical relevance must also be independent of the prohibited inference that the defendant has a bad character. Finally, the probative value of the evidence must substantially outweigh the danger of unfair prejudice. People v. Spoto, supra.

Additionally, it must be established that the defendant engaged in the other misconduct. People v. Garner, supra.

A.

Defendant argues the trial court erred in admitting the facts forming the basis of two sexual assaults that had resulted in convictions, because this evidence was unfairly prejudicial and was unconstitutional propensity evidence. We disagree.

Defendant did not dispute that he had committed these sexual assaults. Accordingly, the requirement of People v. Garner, supra,

was met.

Application of the Spoto factors to the facts of those previous sexual assaults shows no abuse of discretion in allowing those victims to testify to counter defendant's assertion that the victim in this case had consented and/or had recently fabricated her version of the events.

While evidence of prior misconduct is often relevant to the issue of identity, such evidence can also be probative of a defendant's intent. In a pretrial "Order Regarding Hearings," the trial court stated: "Defense agrees identity is not an issue." Thus, we will analyze the evidence as it relates to the issue of intent.

First, defendant agrees that intent is "the other side of the coin" of consent and/or fabrication. The proffered evidence related to the material issue of intent by showing defendant's common plan, scheme, design, modus operandi, and preparation. See People v. Janes, supra. These factors can be used to show a defendant's intent and are appropriate to refute a consent defense. See E. Imwinkelried, Uncharged Misconduct Evidence §§ 5:01-5:42 (rev. ed.1999).

Second, the evidence was logically relevant because it had a tendency to make defendant's intent to commit these crimes and the victim's lack of consent or lack of recent fabrication more probable with the evidence than without it. The offenses all shared common distinctive characteristics sufficient to allow reasonable jurors to infer that they were committed deliberately.

Third, the logical relevance of the evidence was independent of the inference that defendant was a person of bad character who had committed the crimes charged in conformity with such bad character. The evidence showed a pattern of behavior in committing sexual assaults that did not relate to any character flaws or propensity.

The prior sexual assaults and the charged offenses shared significant features, making it more likely than not that defendant had intentionally committed the charged offenses and that...

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    ...and consistent rejection of his overtures. Thus, the evidence was relevant to refute Kooyman's consent defense. Cf. State v. Martinez, 36 P.3d 154, 159 (Colo.Ct.App.2001) (stating that refuting a consent defense is a valid purpose to admit prior bad act evidence under rule 404(b)); see also......
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