People v. Salazar

• Citation: 2012 CO 20,272 P.3d 1067
• Decision Date: 09 April 2012
• Docket Number: No. 11SA305.,11SA305.
• Parties: In re The PEOPLE of the State of Colorado, Plaintiff v. Yrineo SALAZAR, Defendant.
• Court: Supreme Court of Colorado

2012 CO 20

272 P.3d 1067

In re The PEOPLE of the State of Colorado, Plaintiff

v.Yrineo SALAZAR, Defendant.

No. 11SA305.

Supreme Court of Colorado, En Banc.

March 19, 2012.Rehearing Denied April 9, 2012.

Kenneth R. Buck, District Attorney, Nineteenth Judicial District, Sadie Medrano, Deputy District Attorney, Greeley, Colorado, Attorneys for Plaintiff.

Douglas K. Wilson, Public Defender, Dana L. Menzel, Deputy Public Defender, Denver, Colorado, Attorneys for Defendant.

Justice BOATRIGHT delivered the Opinion of the Court.

¶ 1 In this original proceeding under C.A.R. 21, we consider the trial court's admissibility determination as to testimony regarding specific instances of a purported alternative suspect's prior sexual conduct, which the defendant sought to introduce to challenge the alleged victim's identification in a case alleging sexual assault on a child. The People petitioned for relief from the trial court's order finding the evidence admissible. We issued a rule to show cause. Because the trial court abused its discretion when it determined that the probative value of the alleged prior sexual conduct was not substantially outweighed by the danger of such evidence to confuse the issues and mislead the jury, we make the rule absolute and remand the case to the trial court for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶ 2 The prosecution has charged Yrineo Salazar with sexual assault on a child, in violation of section 18–3–405(1), C.R.S (2011), and sexual assault on a child pattern of abuse, in violation of section 18–3–405(2)(d), C.R.S. (2011). The charges arise out of allegations by M.L., who was eight years old at the time, that the defendant sexually assaulted her when she stayed at her maternal grandparents' house. The defendant is M.L.'s uncle by marriage to M.L.'s maternal aunt, T.S. The defendant, T.S., and their children, were visiting from out-of-state and also staying at the grandparents' house. ¹

¶ 3 M.L. first disclosed sexual abuse to a Safe Touch educator at her school following a presentation that included “good touch/bad touch” scenarios. Using age appropriate language, she told the educator that someone had touched her vagina under her underwear. She said she did not tell anyone because it was her “mom's brother” and she was afraid she would never see that part of the family again.

¶ 4 After school that day, M.L. described several incidents to her mother. The mother recounted that M.L. told her that “T. Junior” (the defendant) had touched her. M.L. said she did not tell anyone because it was “T. Junior” and she did not want anyone, including her aunt, to be mad at her or not believe her. M.L. told her mother that she was sleeping in the living room at her grandparents' house with her cousin. They had left the television on. She said she felt something weird and she opened her eyes a little; she could see a figure, but could not see his face clearly. She did see a grey shirt and red shorts. M.L. told her mother that “T. Junior” touched her “in her middle parts” with his fingers and he also touched her “butt.” She knew it was the defendant because he was the only tall man in the house. M.L. also stated that he did this on two occasions, and almost on a third; on the third occasion, a baby in the house started crying and M.L. woke up and saw the defendant sitting in a chair in the living room. M.L. indicated that she clearly saw the defendant on at least one occasion but the mother's account is inconsistent as to whether M.L. saw the defendant on the second occasion when she woke up to someone touching her, or on the third occasion when the baby woke her up.

¶ 5 According to M.L.'s mother, M.L. wears prescription glasses for distance but ordinarily does not wear them while she sleeps. M.L.'s mother did not know if M.L. was wearing her glasses on the nights of the alleged incidents. The mother indicated that, around this time, M.L. was spending two or three nights a week at her grandparents' house so that they could take her to school in the morning.

¶ 6 M.L. also underwent a forensic interview. In this interview she described three incidents. With regard to the first incident, M.L. stated that she had been watching television when she fell asleep on the air mattress in her maternal grandparents' living room. She described being digitally anally and vaginally penetrated. She described the assailant's clothing as a grey shirt and red shorts. M.L. stated that she was informed by her grandmother that the defendant had turned the television off because the grandmother went into the living room and it was off. M.L. did not know how the grandmother knew it was the defendant who turned the television off.

¶ 7 As to the second incident, M.L. described a different night when she was vaginally penetrated but not anally penetrated. She stated that she saw the defendant's face clearly. M.L. also described a third incident on yet a different night when someone attempted to remove her shorts. She was not touched but awoke to find the defendant sitting in a chair in the living room.

¶ 8 Prior to trial, the defendant filed a motion to pierce the rape shield statute and noticed his intent to introduce evidence regarding specific instances of a witness's prior sexual conduct. In his motion, the defendant asserted that A.G., M.L.'s maternal grandfather, had sexually abused his daughter, M.L.'s aunt T.S., in a similar fashion from the ages of approximately four to nine years old. The defendant further claimed that A.G. was present in the house at the time of the incidents and is similar in appearance to the defendant. The defendant argued that the evidence was relevant because A.G. had committed similar offenses, had both motive and opportunity to commit the offense in this case, and identity was an issue.

¶ 9 The trial court held a hearing at which T.S. testified to sexual abuse she allegedly suffered as a child. She stated that she was subjected to anal and vaginal intercourse and digital vaginal penetration. T.S. did not recall digital anal penetration. She identified A.G. as the perpetrator. T.S. indicated that when she was sixteen she told her mother about the abuse and confronted her father. There is no evidence that charges were ever brought against A.G. At the conclusion of the hearing, the court found T.S. to be credible. The court identified two issues in the defendant's motion: (1) whether the defendant would be permitted to introduce evidence of an alternate suspect, namely A.G.; and (2) whether evidence of A.G.'s alleged prior sexual conduct would be admissible pursuant to the rape shield statute, section 18–3–407, C.R.S. (2011). The trial court ruled that the evidence was admissible.

¶ 10 Although M.L. identified the defendant as the perpetrator, the trial court determined that the perpetrator's identity was at issue because, based on the totality of the circumstances, the jury could infer that M.L. misidentified the defendant. In its ruling, the court noted the following circumstances relating to M.L.'s identification: (1) inconsistencies between M.L.'s disclosures to her mother and during the forensic interview; (2) that M.L. was not wearing her glasses during the incidents; (3) that it was dark except for limited ambient light; (4) that M.L. initially disclosed observing only a grey shirt and later disclosed observing red shorts; (5) that the defendant intended to introduce evidence that he was not wearing a grey shirt on the night of the allegations, but rather was wearing a black shirt; (6) that the maternal grandmother told M.L. that the defendant turned off the television, inferentially influencing M.L.'s ability to accurately recall; (7) that M.L. was inconsistent regarding her ability to observe the defendant during the first incident; and (8) that M.L. was inconsistent with regard to where and when she observed the defendant sitting in a chair. Based on these circumstances, the court concluded that the jury could infer that M.L. misidentified the defendant in the first incident and such misidentification could create a reasonable doubt as to the identity of the perpetrator in the second incident. Moreover, even if misidentification of the perpetrator could only be inferred as to the first incident, that misidentification could affect the pattern of abuse charge. The court ruled that evidence of A.G.'s alleged prior sexual conduct was relevant, not only because it could touch upon A.G.'s motive and opportunity to commit the charged offense, but also because the totality of the circumstances created an issue of identity in the case.

¶ 11 The trial court then considered whether evidence of A.G.'s uncharged acts was admissible under the rape shield statute, section 18–3–407. It noted that evidence of a witness's sexual conduct is presumptively irrelevant, but identified three circumstances in which such evidence is admissible. The court listed these in its order:

1. The court may admit evidence of the victim's sexual contact with the defendant. § 18–3–407(1)(a).

2. The court may admit evidence of specific instances of sexual activity to prove that the acts charged were not committed by the defendant. § 18–3–407(1)(b); People v. MacLeod, 176 P.3d 75, 76 (Colo.2008).

3. Upon a sufficient offer of proof, the court may admit certain evidence (including specific instances of sexual conduct ...), if that evidence is relevant to a material issue. § 18–3–407(2) and MacLeod, 176 P.3d at 76–77.

The court acknowledged that, even if the evidence falls within one of these exceptions, it still must be excluded pursuant to CRE 403 if its probative value is outweighed by the danger of unfair prejudice or confusion of the issues.

¶ 12 The trial court ruled that evidence of A.G.'s alleged prior sexual conduct was admissible under both the second and third exceptions to the rape shield statute's presumption of irrelevance because it constituted...