People v. Osorio-Bahena

• Decision Date: 25 October 2013
• Docket Number: Court of Appeals No. 09CA1743
• Citation: 312 P.3d 247
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Pedro OSORIO–BAHENA, Defendant–Appellant.
• Court: Colorado Court of Appeals

312 P.3d 247

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Pedro OSORIO–BAHENA, Defendant–Appellant.

Court of Appeals No. 09CA1743

Colorado Court of Appeals, Div. IV.

Announced April 25, 2013

Rehearing Denied June 6, 2013

Certiorari Dismissed Oct. 25, 2013

City and County of Denver District Court No. 07CR1025, Honorable John W. Madden, IV, Judge, Honorable Michael A. Martinez, Judge, Honorable Anne M. Mansfield, Judge

John W. Suthers, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Cory D. Riddle, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE LICHTENSTEIN

¶ 1 Defendant, Pedro Osorio–Bahena, appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of attempted sexual assault. He also appeals the sentence imposed.

¶ 2 As a matter of first impression, we conclude that (1) a victim's limited mental capacity, just like a victim's young age, permits an inference that the victim's sexual knowledge could be explained only by the alleged assault, and therefore evidence offered to show an alternative source of sexual knowledge may overcome the rape shield's presumption of irrelevance; and (2) evidence of prior sexual contact may be both relevant and admissible, whether or not the prosecution raises this inference. We remand with directions to the trial court to make further findings concerning admissibility of such evidence, and we reject defendant's remaining contentions.

I. Background

¶ 3 St. Paul's House is a residential care facility for boys with developmental and mental health issues. In 2007, S.S., an eighteen-year-old resident of the facility, reported that defendant, who worked at the facility, had sexually assaulted him. Because of developmental disabilities, S.S. had the mental capacity of a five-year-old. In S.S.'s initial report to other employees at the facility, he described both oral and anal sex initiated by defendant. Defendant was charged with sexual assault against an at-risk adult.

A. Trial Court's August 3, 2008, Order

¶ 4 Before the case first went to trial in October 2008, defendant gave notice of his intent to introduce evidence of S.S.'s prior sexual conduct. He asserted that his theory of defense hinged on S.S.'s prior knowledge, experience, and participation in sexual conduct, because he intended to show at trial that S.S. either attempted to initiate, confused, imagined, exaggerated, or otherwise mentally created the events that he later claimed occurred between him and defendant. Defendant explained the evidence was relevant to prove the source of S.S.'s sexual knowledge given that S.S. had the mental capacity of a child, and, absent these prior experiences, would have had no knowledge or understanding of sexual conduct.

¶ 5 As pertinent to this appeal, defendant sought to introduce evidence of the following prior sexual incidents:

1. In 2004, S.S. had consensual oral sex with another resident at the House, and the other resident had unsuccessfully attempted to have anal sex with S.S.

2. In 2006, S.S. had consensual oral sex with a different resident at the House.

3. In 2002, S.S. may have been sexually assaulted by his mother's boyfriend.

¶ 6 Defendant also offered to “work with the court and the prosecution” to fashion a limiting instruction to restrict the jury's consideration of these prior incidents to their proper purpose.

¶ 7 The court issued a written order on August 3, 2008, excluding evidence of these prior incidents. The court determined that defendant did not rebut the rape shield statute's presumption of irrelevance. See§ 18–3–407, C.R.S.2012. It found that (1) the prior incidents of oral and attempted anal sex in 2004 and 2006 were not sufficiently similar to the charged offense to explain a source of sexual knowledge; (2) the 2002 allegation concerning the mother's boyfriend was too remote in time to have any evidentiary value in explaining the basis of S.S.'s sexual knowledge; (3) unless the prosecution presented evidence or otherwise suggested that the victim's sexual knowledge must have come from an assault by defendant, the prior incident evidence was statutorily barred; and (4) defendant had other evidence available “which could explain S.S.'s sexual knowledge without presenting specific, detailed accounts of prior sexual acts involving [S.S.].”

¶ 8 The court also rejected defendant's argument that S.S.'s limited mental capacity would suggest a lack of knowledge or understanding of sexual conduct, concluding that age, but not IQ, correlates with sexual knowledge.

B. Trial Court's Denial of Motion to Reconsider

¶ 9 Defendant filed a motion requesting the court to reconsider its August 3, 2008, order. In this motion, defendant also asked the court to address his revised notice to introduce other evidence “in keeping with the court's previous findings that there is other evidence available to the defense which could explain the victim's sexual knowledge.” ¹

¶ 10

In this revised notice, defendant enumerated nine areas of potential testimony to show that S.S. was “obsessed with sex,” was “very sexualized,” had been “involved in numerous encounters involving sex with other residents (the defense does not intend to give specifics),” ² and had witnessed sex in pornographic movies or between his mother and her boyfriend. Defendant argued that this other evidence would explain S.S.'s sexual knowledge and support the defense theory that S.S. initiated the sexual contact in this case.

¶ 11 In an oral ruling issued on October 1, 2008, the court observed that several issues were raised in the motion and stated that it would address them separately. It identified the first issue as the request to “reconsider the court's prior ruling,” and the second issue as the request to “introduce additional evidence,” which included the sub-issues of “other false allegations” and “evidence regarding sexual conduct.”

¶ 12 As to the first issue, the court denied defendant's request to reconsider its August 3 order, stating that it was going to “persist in that ruling” as to the prior incidents on the “basis stated at the prior hearing and in the court's prior ruling.”

¶ 13 As to the second issue, the court deferred ruling on the evidence of other false allegations, and it excluded the nine areas of additional evidence of sexual reputation and conduct because that evidence was not relevant and would pose a significant risk of unfair prejudice to S.S. The court explained, “This is slightly a [CRE] 403 analysis, but that 403 analysis needs to be done with [section] 18–3–407 in terms of relevance coming in, if it is able to get past the statutory presumption of irrelevance....” The court concluded that the evidence was probably not going to be relevant, “[a]t least in the People's case[-] in[-] chief.” It acknowledged that its order could change depending upon the trial testimony, but ruled the evidence inadmissible under CRE 403. The court stated that the evidence that S.S. was obsessed with sex, was highly sexualized, and had had a number of sexual encounters, sent a message to the jury that “[t]his is a young man who has sexual encounters so there's no harm, no foul, it's all right what happened, if anything happened.” It noted that the evidence that S.S. witnessed pornographic movies or saw others having sexual intercourse is “somewhat different” but nonetheless ruled that such evidence would “simply be more prejudicial than probative.”

¶ 14 The case was tried and ended in a hung jury.

C. Adoption of Prior Orders

¶ 15 Just before the 2009 retrial, a second judge rejected defendant's request to reconsider the first trial court's 2008 rulings. A third judge presided over the retrial, which resulted in a conviction on two counts of attempted sexual assault against an at-risk adult. These convictions were merged into a single conviction, and defendant was sentenced to an indeterminate prison term of six years to life.

II. Evidence of S.S.'s Prior Sexual Conduct

¶ 16 Defendant limits his argument on appeal to the propriety of the August 3, 2008, order, which was applied to his second trial. He contends that the exclusion of evidence that described S.S.'s prior incidents of oral and anal sex, offered to explain an alternative source of S.S.'s sexual knowledge, was an abuse of discretion. He urges application of the constitutional harmless error standard to the trial court's abuse of discretion because he was deprived of his constitutional rights to present a defense and to confront the witnesses against him.

¶ 17 We begin our analysis by acknowledging that, if error, the exclusion of the evidence would not be harmless beyond a reasonable doubt. ³SeeBernal v. People, 44 P.3d 184, 200 (Colo.2002). An erroneous evidentiary ruling may rise to the level of constitutional error if it “deprived the defendant of any meaningful opportunity to present a complete defense.” SeeKrutsinger v. People, 219 P.3d 1054, 1061–62 (Colo.2009); People v. Garcia, 179 P.3d 250, 255 (Colo.App.2007). Under this standard, reversal is required unless we are “confident beyond a reasonable doubt that the error did not contribute to the guilty verdict.” Bernal, 44 P.3d at 200. This test is not whether a guilty verdict would surely have been rendered in a trial without the error, but rather whether the guilty verdict in this trial was surely unattributable to the error. See id. (citing Blecha v. People, 962 P.2d 931, 942 (Colo.1998)).

¶ 18 At trial, the alternative source evidence was central to the defense and therefore pivotal to the jury's resolution of defendant's case. Indeed, defendant asserted that his theory of defense “hinge[d] entirely on [S.S.'s] prior knowledge, experience, and participation in sexual conduct and abuse.” Neither eyewitnesses nor any physical evidence corroborated S.S.'s allegations in this...