People v. Rath

Decision Date08 April 2002
Docket NumberNo. 99SC916.,99SC916.
Citation44 P.3d 1033
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. Russell S. RATH, Respondent.
CourtColorado Supreme Court

Ken Salazar, Attorney General, Paul Koehler, Assistant Attorney General, Denver, CO, Attorney for Petitioner.

David S. Kaplan, Colorado State Public Defender, Julie Iskenderian, Deputy State Public Defender, Denver, CO, Attorney for Respondent.

Justice COATS delivered the Opinion of the Court.

The People sought review of the court of appeals' judgment reversing the defendant's convictions for first degree sexual assault and second degree kidnapping. The court of appeals found that the trial court abused its discretion in admitting evidence of two prior instances of uncharged misconduct by the defendant, involving two other young women, primarily because the defendant conceded he was the person who gave the victim a ride on the day in question and because it considered the other acts insufficiently similar to the current charge. We hold that the trial court did not abuse its discretion in admitting the evidence of these other acts pursuant to CRE 404(b), and therefore we reverse the judgment of the court of appeals and remand with instructions to reinstate the defendant's convictions.


The charges against the defendant arose from the alleged rape of fifteen-year-old T.C. The prosecution's theory was that just before noon on October 18, 1995, while walking home from school on a rural mountain road in Jefferson County near Nederland, the victim was offered a ride by the defendant, taken to a secluded dirt road, dragged down a hillside, and raped by him. The prosecution presented its case at trial largely through the testimony of the victim; relatives, police, and hospital personnel to whom she reported the assault; and coworkers of the defendant to whom he had given contradictory accounts of the incident. The prosecution also presented the testimony of four other women, each of whom was approached on a public street by the defendant, offered a ride, taken to a secluded place, and allegedly subjected to some form of attempted or completed sexual assault. Although the defendant did not testify at trial, his contention that he had merely given the victim a ride and that she was a "pathological liar," who fabricated the sexual encounter to get attention from family members, was presented through cross-examination, defense witnesses to the lack of corroborating physical evidence, and his counsel's opening and closing statements.

As the only admitted witness of the attack, the victim provided the only first-hand testimony about the details of the currently charged assault. She testified at trial that she accepted the defendant's offer of a ride to a point near her home. Upon arriving there the defendant refused to stop, saying that he needed to go to the store and would then take her back to where she wanted to go. Instead of going to a store, however, the victim testified that the defendant took her to a secluded dirt road where he stopped the vehicle and told her that he wanted to show her something in the woods. While she at first refused to get out of the truck, she eventually relented, whereupon the defendant physically dragged her down the adjacent hillside and forcefully sexually assaulted her by vaginal intercourse.

Among other details, she testified that the defendant removed all of their clothing except his shirt and commented during the assault that she had a "nice mole" on her leg. She also testified that following the assault, she accepted a ride from the defendant to a point near her destination where he apologized for his conduct, saying that next time he would not do this sort of thing, and allowed her to leave. After walking home, she vomited and immediately undressed to shower, finding a twenty dollar bill in her pant leg that she did not have before the assault. After showering, she called family members and eventually the police. The subsequent emergency room examination produced no physical evidence of sexual assault. Similarly, the defense produced evidence indicating that the tire tracks found on the road near the scene identified by the victim did not match the tires on the defendant's truck at the time the police made contact with him several weeks later and evidence challenging the feasibility of the victim's time estimates. There was, however, bruising on the victim's shins where she claimed the defendant sat while pulling off her clothing and an indentation on her abdomen that could have been caused by weight pressing against her cigarette package.

The prosecution also presented the testimony of the four women who claimed to have been picked up and taken to a secluded location during a ten-month period in 1981-82, when they were between twelve and twenty years old, by someone later identified as the defendant. Although the details of the incidents varied, each began with the offer of a ride from the defendant, which the young women accepted either voluntarily or as the result of threats, followed by a drive to a secluded location and some indication by the defendant that his intent was to have sexual relations. In two of the cases, the women were actually sexually assaulted by penetration; in a third case the woman, L.L., testified that the defendant physically forced her into the back of his camper, climbed on top of her, and fondled her breasts, until her resistance and crying led the defendant to let her go to find her own way home; and in the last case, the twelve-year-old girl, to whom the defendant had given five dollars to allow herself to be photographed, fled when he crawled into his truck bed and enticingly invited her to join him to see his camera.

In three of the cases, the defendant showed the women a camera and either took photos or described his interest in taking photos of young women and either gave the young women a small amount of money as an enticement or left a small amount of money with them after the assault. In the two cases in which the defendant was able to complete the sexual penetration (one by vaginal intercourse and the other by forced fellatio), the defendant removed all of his clothing but his shirt and managed to partially or completely disrobe his victim, commenting about some physical feature that became visible — in one case a scar and the other the woman's "fuzzy," unshaved legs. After each completed assault, the defendant was conciliatory or matter-of-fact about doing this sort of thing and offered to drive the victim where she wanted to go.

The jury found the defendant guilty of both second degree kidnapping and first degree sexual assault, for which he was sentenced to concurrent terms of sixteen and eight years, respectively. On direct appeal, the court of appeals reversed, holding that although evidence of two of the prior sexual transactions involving the defendant were properly admitted, the trial court abused its discretion in admitting the other two. It held that the admission of the incidents involving the women identified as L.L. and P.B., in which the encounters ended short of sexual penetration, was error because they were not related to the occurrence of sexual intercourse, which it considered the only "contested" issue at trial, and because they were not "sufficiently substantially similar [to the current charges] to be introduced under CRE 404(b) and § 16-10-301, C.R.S.1998."1 People v. Rath, No. 96CA1773, slip op. at 1 (Colo.App. June 3, 1999).


The admissibility of evidence of uncharged criminal misconduct is expressly limited by the Colorado Rules of Evidence.2 According to CRE 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity with that character on a particular occasion. The rule is in accord with the long-standing policy of the English and American law of evidence that when evidence is admitted for this purpose, which is sometimes characterized as the propensity of the accused to commit crime, even though it may be logically relevant in some measure, the prejudicial effect of the evidence always outweighs its probative value, and it is, for that reason, always inadmissible. 1A Wigmore, Evidence § 58.2, at 1212 (Tillers rev. 1983). When offered for any other purpose, however, the evidence is not necessarily barred. The rule enumerates several examples of reasons for which evidence of other crimes may be admissible. "As the rule indicates, there are numerous other uses to which evidence of criminal acts may be put, and those enumerated are neither mutually exclusive nor collectively exhaustive." 1 Charles T. McCormick, McCormick on Evidence § 190, at 659 (John W. Strong, 5th ed. 1999).

In order to be admissible, evidence must be relevant; and unless otherwise provided by constitution, statute, or rule, all relevant evidence is admissible. CRE 402. Evidence is relevant, in the logical sense, as long as it 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; see People v. Carlson, 712 P.2d 1018, 1021-22 (Colo.1986)

. Even logically relevant evidence may be excluded, however, "if its probative value is substantially outweighed by the danger of unfair prejudice." CRE 403; see Spoto v. People, 795 P.2d 1314, 1318 (Colo.1990).

Evidence of other, uncharged crimes may therefore be admissible if, but only if, it is logically relevant for some reason apart from an inference that the defendant acted in conformity with a character trait, and if the probative value of the evidence for that other reason is not substantially outweighed by the other policy considerations of Rule 403. This court has previously...

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