People v. McKibben

• Citation: 862 P.2d 991
• Decision Date: 22 April 1993
• Docket Number: No. 91CA1787,91CA1787
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Jay McKIBBEN, Defendant-Appellant. . V
• Court: Court of Appeals of Colorado

Page 991

862 P.2d 991

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Jay McKIBBEN, Defendant-Appellant.

No. 91CA1787.

Colorado Court of Appeals Div. V.

April 22, 1993.

Rehearing Denied June 10, 1993.

Certiorari Denied Nov. 29, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Eric V. Field, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Beth L. Krulewitch, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge METZGER.

Defendant, John Jay McKibben, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree sexual assault. We affirm.

The charge at issue here arose from an incident in which defendant engaged in sexual intercourse with a 16-year-old boy. The prosecution asserted that the defendant, in violation of § 18-3-403(1)(a), C.R.S. (1986 Repl.Vol. 8B), had caused the victim to submit by a means of sufficient consequence, reasonably calculated to cause submission against the victim's will. The defendant claimed that the victim had consented to the sexual act.

Before trial, the prosecution filed a notice of intent to offer similar act evidence, and at a hearing thereon, the prosecutor made an offer of proof regarding the similar transactions. The offer of proof consisted of the testimony of two boys who had been befriended by the defendant. The defendant had taken them to movies, out to meals, and had given them jobs. Each was taken to the defendant's apartment, where the defendant discussed homosexual acts with them and then asked the boys for sex. In addition, the defendant offered the boys money for sexual favors. One boy submitted to defendant's importuning; the other did not.

The trial court found that the evidence was admissible to show common plan, scheme, design, modus operandi, guilty knowledge, or intent and that the probative value of the similar transaction evidence substantially outweighed the danger of unfair prejudice.

I.

On appeal, the defendant contends that the trial court erred in admitting the similar transaction evidence. He maintains that the evidence was not logically relevant independent of the intermediate inference prohibited by CRE 404(b) and § 16-10-301, C.R.S. (1992 Cum.Supp.), was not sufficiently similar to the incident at issue, and was highly prejudicial. We disagree.

Evidence of prior similar transactions in cases involving sexual assault is admissible under § 16-10-301(1), C.R.S. (1992 Cum.Supp.) and CRE 404(b), if it is offered for the limited purpose of establishing a common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or intent. However, to be admissible, such evidence must meet the following four-part test: (1) the evidence must relate to a material fact in the case; (2) it must be logically relevant to the material fact; (3) the logical relevance must be independent of the prohibited inference that the defendant committed the crime charged because of his criminal propensities; and (4) the probative value of the evidence substantially must outweigh the danger of unfair prejudice. People v. Spoto, 795 P.2d 1314 (Colo.1990).

The trial court has substantial discretion in deciding the admissibility of evidence of similar transactions, and only if there is an abuse of discretion will its ruling be disturbed. People v. Czemerynski, 786 P.2d 1100 (Colo.1990).

A.

Relevant evidence is defined in CRE 401 as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." People v. Carlson, 712 P.2d 1018 (Colo.1986). In resolving an issue of relevancy, a court must consider whether the proffered evidence is legally material to some factual issue in the case. People v. District Court, 785 P.2d 141 (Colo.1990).

Here, the similar transaction evidence was legally material to a factual issue in the case. The critical issue in this case was whether the victim consented to the sexual act or whether the victim submitted to the act by any means of sufficient consequence reasonably calculated to cause submission against his will. See § 18-3-403(1)(a), C.R.S. (1986 Repl.Vol. 8B).

"Consent" means cooperation in the act or an attitude pursuant to an exercise of free will and with knowledge of the nature of the act. Submission under the influence of fear shall not constitute consent. Section 18-3-401(1.5), C.R.S. (1992 Cum.Supp.).

The proffered evidence indicated that, on at least two prior occasions, the defendant had befriended young teenage boys, developed their trust, given them money and a job, and then had attempted to take advantage of their vulnerable state. One of the boys submitted to the sexual act under the influence of fear--fear that the defendant would no longer be his friend or give him money. The boy who did not submit to the defendant's advances considered taking the proffered money because his father was in bankruptcy. Hence, the evidence established submission by any means reasonably calculated to cause submission against the victim's will and, thus, negates the consent theory.

Furthermore, the proffered evidence was material to the consent issue and thus does not give rise to the prohibited inference that defendant committed the crime charged because of his criminal propensities. See People v. Spoto, supra.

B.

As to whether the other incidents were sufficiently similar to the one at issue, the record before us unequivocally establishes a compelling pattern and remarkable similarity of defendant's sexual misconduct. The boys were all young teenage boys, befriended by the defendant who had attempted to sexually assault them. The assaults or attempted assaults occurred while the boys were at the defendant's apartment or condominium. Finally, the methodology employed by the defendant was similar in each case. See People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979).

Although there obviously were some differences in the circumstances surrounding each offense, it is not essential that the means of committing the other crimes replicate in all respects the manner in which the crime charged was committed. People v. Garner, 806 P.2d 366 (Colo.1991). Moreover, modus operandi evidence is not limited to evidence of identity. See Adrian v. People, 770 P.2d 1243 (Colo.1989).

Hence, the evidence was legally material to a factual issue in the case, was sufficiently similar, and was independent of the intermediate inference that the defendant has a bad character and acted in conformity therewith. We reject defendant's contention that evidence of prior acts is never admissible when, as here, the defense of consent is raised. Defendant has not provided any authority, nor are we aware of any, to support this proposition.

C.

Finally, as to the prejudicial nature of the evidence, we are well aware that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. People v. Lowe, 660 P.2d 1261 (Colo.1983); CRE 403. However, such is not the case here.

In exercising its discretion to admit or exclude evidence because of its asserted prejudicial impact, the trial court should consider the nature of the case, the nature of the tendered evidence, and the other evidence admitted during trial. People v. Rubanowitz, 688 P.2d 231 (Colo.1984).

All effective evidence is prejudicial in the sense of being damaging or detrimental to the party against whom it is offered. However, unfair prejudice refers only to evidence which tends to cause a decision to be made on an improper basis. People v. District Court, supra.

There is no basis in the record for us to conclude that the evidence in this case excited the emotions of the jury to irrational behavior.

Moreover, the trial court properly instructed the jury at the time the evidence was admitted at trial and again in the general charge to the jury. The jury instructions tracked the language of COLJI-Crim. Nos. 2:02 and 4:02 (1983). The limiting instruction properly informed the jury that the purpose for which the evidence could be used was to show a common plan, scheme, or design, modus operandi, motive, and intent. By so instructing the jury, the court in effect informed the jury not to consider the evidence to show the defendant's bad character or his propensity to commit crime.

Absent a showing to the contrary, which has not been established here, it is presumed that the jury understood and heeded the instruction. People v. Moody, 676 P.2d 691 (Colo.1984).

Based on the record before us, we conclude that the trial court did not abuse its discretion in admitting the similar transaction evidence.

II.

We also reject defendant's contention that the trial court employed the wrong standard in determining the admissibility of the similar transaction evidence. Even assuming that the trial court employed an incorrect standard, because the evidence was admissible and the foundational requirements for its admission were met, defendant's conviction will not be overturned. People v. Jenkins, 768 P.2d 727 (Colo.App.1988).

Further, we conclude that any error occasioned in the cross-examination of the prosecution's expert witness was invited error. The witness responded within the scope of defense counsel's question. Hence, defendant cannot now seek reversal because of that response. See People v. Zapata, 759 P.2d 754 (Colo.App.1988), aff'd, 779 P.2d 1307 (Colo.1989).

Accordingly, the judgment is affirmed.

RULAND, J., concurs.

BRIGGS, J., dissents.

Judge BRIGGS, dissenting.

I respectfully dissent.

The alleged victim, A.M., was a sixteen-year-old youth when he was introduced to the defendant, a man in his forties. They became friends and defendant took A.M. on social outings, such as movies, horse-back riding, and lunch. Each time defendant...