People v. Melillo

• Citation: 25 P.3d 769
• Decision Date: 29 May 2001
• Docket Number: No. 98SC816.,98SC816.
• Parties: The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Frank MELILLO, Respondent/Cross-Petitioner.
• Court: Supreme Court of Colorado

25 P.3d 769

The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Frank MELILLO, Respondent/Cross-Petitioner.

No. 98SC816.

Supreme Court of Colorado, En Banc.

May 29, 2001.

Rehearing Denied June 25, 2001.¹

Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Appellate Division, Denver, CO, Attorneys for Petitioner/Cross-Respondent.

David Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, CO, Attorneys for Respondent/Cross-Petitioner.

Justice RICE delivered the Opinion of the Court.

This case arises out of Defendant's conviction for sexual assault on a child as a part of a pattern of sexual abuse. We granted certiorari to review the court of appeals' decision in People v. Melillo, 976 P.2d 353 (Colo. App.1998). In Melillo, the court of appeals held that count three of the information sufficiently charged the crime of sexual assault on a child as a part of a pattern of sexual abuse. However, it reversed Defendant's conviction, holding that the trial court erred by excluding evidence proffered by Defendant. We now reverse the court of appeals' holding that the trial court erred in excluding evidence of the victim's prior sexual conduct, as this evidence was properly excluded under CRE 401, CRE 403 and Colorado's rape shield statute, § 18-3-407, 6 C.R.S. (2000). However, we affirm the court of appeals' holding that the information sufficiently charges the crime of sexual assault on a child as a part of a pattern of sexual abuse, and that the trial court properly instructed the jury on count three. Thus, we reverse in part and affirm in part, and reinstate the trial court's judgment of conviction.

I. FACTS AND PROCEDURAL HISTORY

Defendant married the victim's mother and moved into their home in 1992. The victim testified that shortly thereafter Defendant began sexually abusing her and that this abuse became more recurrent and egregious over the course of the next year. According to the victim, Defendant was having nonconsensual sexual intercourse with her on a regular basis until the summer of 1993, when the victim became pregnant. Defendant told the victim to have an abortion, which she did. She later disclosed the sexual abuse to her mother.

In June 1995, Defendant was charged with two counts of sexual assault on a child by one in a position of trust, § 18-3-405.3, 6 C.R.S. (2000), and one count of sexual assault on a child, § 18-3-405(1), 6 C.R.S. (2000), as a part of a pattern of sexual abuse, § 18-3-405(2)(c), 8B C.R.S. (1986).² During the investigation, Defendant gave a statement to a law enforcement investigator referencing an incident during which the victim was sexually assaulted by her baby-sitter's son (the "daycare incident"). Prior to trial, Defendant filed a motion to present evidence of the victim's prior sexual contacts, including the daycare incident. A rape shield hearing was held and the trial court ruled that the daycare incident was not relevant to any material issue in the proceeding.

At trial, the prosecution called the investigator to testify about Defendant's statement. Defendant's attorney requested a bench conference, whereupon he asked that he be able to inquire about the portion of Defendant's statement referencing the daycare incident. The trial court again found that evidence of the daycare incident was inadmissible, but allowed the investigator to testify as to the other portion of the statement, which was inculpatory.

The jury acquitted Defendant on the first count and a mistrial was declared on the second count. The jury returned a verdict of guilty on the third count of sexual assault on a child as a part of a pattern of sexual abuse and the trial court entered judgment of conviction, sentencing Defendant to eighteen years in the Department of Corrections. Following the trial, Defendant filed a motion to vacate the verdict on count three and for entry of judgment of acquittal, asserting that the count did not charge a crime, but only a sentence enhancer. The trial court denied Defendant's motion.

The court of appeals affirmed the trial court's determination that count three of the information was sufficient to charge sexual assault on a child. Melillo, 976 P.2d at 355-56. The court, however, reversed Defendant's conviction and remanded for a new trial because it found that the trial court had erred by excluding the portion of his statement referencing the daycare incident. Id. It found that the evidence should have been admitted under the rule of completeness, or alternatively, the concept of "opening the door." Id. The People petitioned this court for a writ of certiorari to review the court of appeals' rulings on these evidentiary issues and Defendant cross-petitioned, contesting the sufficiency of count three. We granted certiorari on all three issues.³

II. ANALYSIS

A. EXCLUSION OF EVIDENCE OF VICTIM'S PRIOR SEXUAL CONDUCT

The first two issues presented on appeal concern whether the trial court erred in excluding evidence proffered by Defendant. Defendant posits that the court of appeals was correct in ruling that the evidence was admissible under the rule of completeness and the concept of "opening the door." We now hold that the court of appeals' reliance on these evidentiary principles was misplaced and that the trial court did not abuse its discretion in excluding evidence of the victim's prior sexual abuse. We hold that CRE 401, CRE 403 and the rape shield statute, § 18-3-407, support exclusion of the evidence.

1. Standard of Review

We review a trial court's factual determination as to the relevance of evidence for abuse of discretion. People v. Dunlap, 975 P.2d 723, 741 (Colo.1999); King v. People, 785 P.2d 596, 603 (Colo.1990). Under this standard, the sound discretion of the trial court will not be overturned on appeal unless the court's evidentiary ruling was manifestly arbitrary, unreasonable, or unfair. Dunlap, 975 P.2d at 741; King, 785 P.2d at 603; People v. Hampton, 758 P.2d 1344, 1348 (Colo.1988) (holding that, "Our review of the trial court's ruling is necessarily circumscribed by the rule that a court's factual findings are entitled to deference by a reviewing court and will not be overturned if supported by competent evidence in the record.").

2. CRE 401, CRE 403 and the Rape Shield Statute

Our review of a trial court's determination of the admissibility of evidence requires an examination of such evidence under CRE 401 and CRE 403. CRE 401 defines "relevant evidence" as "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 403, however, authorizes a court to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Trial courts have broad discretion to make evidentiary determinations under CRE 401 and CRE 403. Dunlap, 975 P.2d at 741; People v. Ibarra, 849 P.2d 33, 38 (Colo.1993).

Because the evidence excluded by the trial court in this case concerns a rape victim's prior sexual abuse, we also review the trial court's determination under the rape shield statute. § 18-3-407. In relevant part, the rape shield statute provides:

(1) Evidence of specific instances of the victim's or witness's prior or subsequent sexual conduct . . . shall be presumed to be irrelevant except:

(a) Evidence of the victim's or witness's prior or subsequent sexual conduct with the actor;

(b) Evidence 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.

§ 18-3-407 (emphasis added). The statute then outlines a procedure through which a defendant may nonetheless seek to admit such evidence normally inadmissible:

(2) In any criminal prosecution [for sexual assault on a child], if evidence, that is not excepted under subsection (1) of this section, of specific instances of the victim's or a witness's prior or subsequent sexual conduct. . . is to be offered at trial . . .:

(a) A written motion shall be made . . . prior to trial unless later for good cause shown . . . stating that the moving party has an offer of proof of the relevancy and materiality of [the] evidence . . . .

§ 18-3-407(2) (emphasis added).

Although our rules of evidence generally favor the admission of evidence, we have previously held that the rape shield 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, 872 (Colo.1999); People v. Murphy, 919 P.2d 191, 195 (Colo.1996). In Interest of K.N., we found that "the rape shield statute begins with the unmistakable statement that evidence of a victim's sexual history `shall be presumed to be irrelevant.' As a consequence, then, the force of the statute generally makes a victim's sexual history inadmissible." 977 P.2d at 872.

Although the rape shield statute creates a presumption of irrelevance for evidence of a rape victim's sexual conduct, this general prohibition on the admission of such evidence is qualified by three statutory exceptions. § 18-3-407; Interest of K.N., 977 P.2d at 872

("[E]vidence [of a rape victim's sexual conduct] is admissible only through three exceptions explicitly set forth in the rape shield statute."). Thus, evidence is only admissible under the rape shield statute if: (1) it is evidence of a victim's prior sexual contact with the accused pursuant to subsection 407(1)(a); (2) if it is evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar...