Pierson v. People

• Decision Date: 18 June 2012
• Docket Number: No. 10SC269.,10SC269.
• Citation: 279 P.3d 1217,2012 CO 47
• Parties: Michael William PIERSON, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

279 P.3d 1217

2012 CO 47

Michael William PIERSON, Petitioner

v.The PEOPLE of the State of Colorado, Respondent.

No. 10SC269.

Supreme Court of Colorado,

En Banc.

June 18, 2012.

Doug Wilson, Public Defender, Shann Jeffery, Deputy Public Defender, Denver, Colorado, Attorneys for Petitioner.

John Suthers, Attorney General, Katherine A. Aidala, Assistant Attorney General, Appellate Division, Denver, Colorado, Attorneys for Respondent.

Justice COATS delivered the Opinion of the Court.

¶ 1 Pierson sought review of the court of appeals' judgment in People v. Pierson, No. 06CA1880, 2010 WL 549208 (Colo.App. Feb.18, 2010) (not published pursuant to C.A.R. 35(f)), affirming his various convictions of felony sexual assault on a child and indecent exposure. The district court denied the defendant's pre-trial motion to admit evidence of the child's similar victimization by a teenage cousin, during substantially the same time period. The court of appeals upheld the trial court's ruling, finding both that the proffered evidence of prior sexual contact did not fall within the rape shield exception for the source of semen, pregnancy, disease, or similar evidence of sexual intercourse, and that it was not relevant for any of the other purposes offered by the defendant.

¶ 2 Because the proffered evidence amounted to evidence of specific instances of the victim's prior sexual activity that was neither included within the exception for alternate sources of semen, pregnancy, disease, or similar evidence, nor otherwise sufficiently probative as an alternate explanation for the victim's knowledge or pain, the trial court did not abuse its discretion in excluding the proffered evidence. The judgment of the court of appeals is therefore affirmed.

I.

¶ 3 Michael William Pierson was charged with indecent exposure and thirteen sexual-assault-on-a-child-related felony offenses, all arising from allegations by his eight-year-old niece that he had exposed himself to her, touched her vagina, and made her touch his penis. Following a trial at which both the child-victim and the defendant testified, he was convicted of indecent exposure, as well as four counts of sexual assault on a child and sexual assault on a child by one in a position of trust, committed as part of a pattern of abuse. He was sentenced to concurrent terms of twenty-four years to life in prison.

¶ 4 Undisputed evidence at the trial indicated that the defendant, at the invitation of his sister, the child's mother, was temporarily living in a camper next to the family home. While living there, he helped around the house and babysat for the victim and her younger brother. After approximately six months, relations between the defendant and his sister became contentious, for unrelated reasons, and she decided to ask him to leave. Shortly before the defendant actually left, however, in a conversation about her mother's anger with him, the child-victim reported that the defendant had been touching her. Following the child-victim's more detailed statements to the police, the defendant was arrested.

¶ 5 Through both her testimony and various of her prior statements, initially made to her mother, the police, and a therapist but ultimately admitted at trial, the victim indicated that on several occasions during his stay, the defendant had sexually assaulted her. She indicated that these assaults consisted primarily of the defendant putting his hands down her pants and touching her vagina. She testified that they occurred both in the house while the two were watching TV and in the camper where the defendant lived. Her testimony indicated that no digital penetration actually occurred, but she described feeling pain when the defendant pressed hard on her vagina. She also testified to an incident in which the defendant pulled down his own pants and had her touch his penis, which she described as “sticking up” and as being “big and nasty and hairy.”

¶ 6 The defendant testified on his own behalf and denied the victim's accusations. He offered that she may have been mad at him because he often prevented her from watching cartoons when he was watching the TV, but he offered no other explanation why she would accuse him of sexually abusing her.

¶ 7 Prior to the trial, the defense moved to admit evidence of other sexual abuse that had come to light. During the police investigation, the victim at first denied, but later conceded, sexual contact by an adolescent male cousin during approximately the same time period. She described various incidents in which the two had exposed their genitalia to each other, and in which the cousin touched her vagina and she touched his penis. When confronted, the cousin, who was fifteen years old but was described as both mentally and physically underdeveloped, admitted to having sexual contact with the victim on five separate occasions.

¶ 8 In his motion and argument to the trial court, the defendant asserted a number of theories of admissibility, with reference to the presumptions of our rape shield statute. Specifically referencing a statutory exception for other sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse, as well as the statutory formula for evaluating the relevance of a history of false reporting, the defendant offered this evidence to show an alternate source of “the witness's psychic and emotional energy;” to rebut an inference that the complainant would not have been able describe the details of the sexual abuse had the defendant not committed it; to challenge the victim's credibility by impeaching her; to show that another person rather than the defendant “inflicted emotional or mental injuries on the victim through sexual contact;” and to ensure his constitutional right to effective cross-examination. After oral arguments and further explanation by both counsel, the trial court denied the motion in its entirety, finding simply that neither of the two specific exceptions to the statutory presumption of irrelevance applied and that the statutory formula for nevertheless admitting evidence of specific instances of prior sexual conduct relevant to a material issue was not satisfied under the particular circumstances of this case.

¶ 9 On appeal, the court of appeals affirmed the trial court's ruling with regard to all of the defendant's theories of admissibility. We accepted further review of that judgment only with regard to the exclusion of the evidence as offered to demonstrate an alternate source for either physical injuries or precocious sexual knowledge of a child victim.

II.

¶ 10 In the almost-forty years since the enactment of the so-called “rape-shield statute,” section 18–3–407, C.R.S. (2011), this court has commented on its purposes, structure, and operation a number of times. See, e.g., In re People v. Salazar, 2012 CO 20, 272 P.3d 1067;People v. MacLeod, 176 P.3d 75 (Colo.2008); People v. Weiss, 133 P.3d 1180 (Colo.2006); People v. Bryant, 94 P.3d 624 (Colo.2004); People v. Melillo, 25 P.3d 769 (Colo.2001); People v. Murphy, 919 P.2d 191 (Colo.1996); People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978).

¶ 11 As we have previously indicated, the statute generally reflects a pronounced policy shift away from permitting inquisitions of witnesses in sexual assault cases, and toward greater procedural protection for those witnesses, to encourage them to come forward and confront defendants in sexual assault cases. MacLeod, 176 P.3d at 79. The statute accomplishes this purpose largely by excluding from certain enumerated classes of sexual-assault-related prosecutions, with two exceptions, evidence of specific instances of a victim's or a witness's prior or subsequent sexual conduct, opinion or reputation evidence concerning those same matters, and a victim's or witness's history of false reporting, unless an offer of proof is made by written motion at least thirty days prior to trial and the trial court determines, after an in-camera hearing, that the evidence is relevant to a material issue in the case. We have previously made clear that by “relevant to a material issue” the statute intends evidence with probative value on a matter of consequence that is not substantially outweighed by the countervailing policy considerations of CRE 403. MacLeod, 176 P.3d at 81; see also Salazar, ¶¶ 19–20. Should the court determine that evidence of sexual history is admissible according to this procedure, it must then prescribe the nature of the evidence that may be admitted and the questions that may be posed. MacLeod, 176 P.3d at 80.

¶ 12 The presumption of irrelevance requiring such an in-camera determination of admissibility, however, does not apply with regard to evidence of prior or subsequent sexual conduct in two specific situations. No motion and determination made outside the presence of the jury is required with regard to evidence of prior sexual conduct involving the same actor, § 407(1)(a), or with regard to “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,” § 407(1)(b). Because the probative worth of any particular evidence is affected by the scarcity or abundance of other evidence on the same point, and therefore must be evaluated by comparing evidentiary alternatives, People v. Saiz, 32 P.3d 441, 446 (Colo.2001), evidence falling within these two exceptions may nevertheless be excluded, not only for other evidentiary reasons but even for lacking sufficient incremental probative value, when considered in light of other available evidence and the countervailing policy considerations of CRE 403. It is clear, however, that these two exceptions designate types of sexual conduct evidence that are not presumed to be so unfairly prejudicial as to require...