U.S. v. Cuch, 87-1812

• Decision Date: 14 March 1988
• Docket Number: No. 87-1812,87-1812
• Parties: 25 Fed. R. Evid. Serv. 113 UNITED STATES of America, Plaintiff-Appellee, v. Aaron CUCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1173

842 F.2d 1173

25 Fed. R. Evid. Serv. 113

UNITED STATES of America, Plaintiff-Appellee, v. Aaron CUCH, Defendant-Appellant.

No. 87-1812.

United States Court of Appeals, Tenth Circuit.

March 14, 1988.

Richard N.W. Lambert, Asst. U.S. Atty., and Brent D. Ward, U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee.

Randy S. Ludlow, Salt Lake City, Utah, for defendant-appellant.

Before SEYMOUR and MOORE, Circuit Judges, and PHILLIPS, ^* District Judge.

PHILLIPS, District Judge.

I.

Defendant-appellant Aaron Cuch was found guilty by a jury of aggravated sexual assault, a violation of 18 U.S.C. Secs. 1153 and 2241(a), and possession of a firearm by a convicted felon, a violation of 18 U.S.C. Sec. 922(g).

The trial court sentenced defendant to an eight year term of imprisonment on the sexual assault charge, to be followed by a three year probationary sentence on the firearms offense. On appeal the defendant challenges only his assault conviction contending that: 1) the trial court improperly admitted irrelevant and unduly prejudicial evidence of a prior sexual assault by the defendant and 2) there was insufficient evidence supporting the conviction. We affirm.

II.

This case arises out of the defendant's assault of Mrs. Lana Boren, the manager of a convenience store located within Indian Country in the State of Utah. On the morning of January 24, 1987, Boren was working at the "Gotta Stop" convenience store on the Uintah-Ouray Reservation. Shortly after the store opened at 6:00 a.m., defendant Cuch entered the store and walked past the checkstand area. Another customer left the store, leaving the defendant and Boren alone. The defendant asked Boren if it was too early to check out video rental movies. Cuch was told he could check out movies anytime. The defendant then purchased a six-pack of soft drinks and left the store.

As the defendant left, Boren noted that Cuch's truck was parked in front of the store and that the first customer had not left the parking lot. When she next heard the door bell to the store ring, she turned to see the defendant coming through the door with a rifle in his hands. The defendant pointed the gun at her, grabbed her by the arm and told her to "get in the truck." Cuch then walked her out of the store to the driver's side of the truck, which had been left with the engine running. With the rifle under his arm, Cuch began shoving Boren into the driver's side of the truck. As Boren was partially inside the vehicle, she asked the defendant what he wanted. The defendant replied: "I want some pussy. I've got a knife and I'm going to cut your throat." [Transcript ("Tr."), Vol. III at 3-21].

Boren testified that this statement by the defendant snapped her out of shock. She then grabbed the rifle with both hands, jumped out of the truck, and began wrestling with the defendant in the parking lot. As Boren struggled towards the highway, Cuch tripped her and they both fell to the pavement. The defendant got on top of Boren, at which time a car containing four young men pulled into the parking lot. Id. at 22-24. One of the young men, after hearing Boren's screams for help, grabbed the rifle and shoved the defendant off Boren. Defendant was detained by the young men while Boren called the authorities. Two deputies from the local sheriff's office arrived shortly thereafter and the defendant was arrested at the scene.

Defense counsel's cross examination of Boren, the eye witnesses and the arresting officers focused almost entirely on the issue of intent. In an apparent effort to establish that the defendant did not intend to sexually assault Boren, defense counsel elicited evidence that the arresting officers had responded to a call involving "possible armed robbery", that defendant was under the influence of alcohol and that Boren had screamed that Cuch was "trying to kill her" and "threatened to cut her". [Vol. II at 31-32, 47, 49, 59, 61, 77, 89-90, 94-95, 102].

Defense counsel also questioned witnesses on their understanding of the term "pussy", and even suggested alternative interpretations of the defendant's statement "I want some pussy." Id. at 34-35, 50-51. According to defendant, as amply stated in his brief on appeal, there was "at this point ... confusion as to what the exact crime and nature of the crime which the defendant was attempting to commit at the 'Gotta Stop'." [Appellant's Brief at 12].

On the second day of trial, over the objection of defendant, the government introduced evidence of a prior similar assault committed by the defendant. Jaylene Gardner, a probation officer, testified that on August 28, 1979, she heard a knock on the door of her home located on the Uintah-Ouray Reservation. When she opened the door, the defendant pointed a rifle in her face and told her to be quiet or her "head would be blown off." Defendant then grabbed Gardner by the arm, and forced her along the sidewalk to his waiting truck. Gardner's recollection was that the truck's engine had been left running. While still holding the rifle, Cuch instructed Gardner to get into the driver's side of the truck. Gardner complied with defendant's request and laid down on the front seat. Cuch then drove Gardner to a nearby riverbed, told her to get out of the car, lay down and raise her nightgown. The defendant then unbuttoned his pants, laid down on top of Gardner, and sexually assaulted her. [Vol. III at 123-128].

Defense counsel did not cross examine Gardner, and the government rested shortly thereafter. The defendant presented no evidence and the case was submitted to the jury, which subsequently found the defendant guilty on both counts. Defendant now challenges the sufficiency of the evidence pertaining to his assault conviction, as well as the admissibility of Gardner's testimony.

III.

The determination of whether evidence is relevant lies within the sound discretion of the trial court, and the court's determination will not be reversed absent a clear showing of an abuse of that discretion. United States v. Neal, 718 F.2d 1505, 1509-10 (10th Cir.1983), cert. denied, 469 U.S. 818, 105 S.Ct. 87, 83 L.Ed.2d 34 (1984). The trial court also has broad discretion to determine whether otherwise relevant evidence should be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Id. at 1510; see Fed.R.Evid. 403.

Evidence of other acts is not admissible solely to prove a defendant's criminal disposition. United States v. Naranjo, 710 F.2d 1465, 1467 (10th Cir.1983). Such evidence, however, may be admissible to show knowledge, motive or intent on the part of the actor. ¹ United States v. Mittleider, 835 F.2d 769, 775 (10th Cir.1987); United States v. Esch, 832 F.2d 531, 535-36 (10th Cir.1987); United States v. Cummings, 798 F.2d 413, 417 (10th Cir.1986).

It is well settled that the rule is one of inclusion which admits evidence of other crimes relevant to an issue in a trial, unless the evidence is introduced for an impermissible purpose or undue prejudice is shown. United States v. Turner, 799 F.2d 627, 630 (10th Cir.1986); United States v. Naranjo, 710 F.2d 1467; United States v. Espinoza, 578 F.2d 224, 227 (9th Cir.), cert. denied, 439 U.S. 849, 99 S.Ct. 151, 58 L.Ed.2d 151 (1978) (Rule 404(b) is "a broad avenue through which many acts of prior and subsequent misconduct of those criminally accused may be admitted into evidence.")

On the other hand, this circuit has developed rigorous criteria for admitting evidence of other crimes, wrongs or acts pursuant to Rule 404(b). We have held that the government first bears the burden of demonstrating how the proffered evidence is relevant to an issue in the case. United States v. Biswell, 700 F.2d 1310, 1317 (10th Cir.1983). In demonstrating the relevance of proffered "other acts" evidence, "[t]he Government must articulate precisely the evidentiary hypothesis by which a fact of consequence may be inferred from the evidence of other acts." United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.1985). Moreover, "[t]here must be a clear and logical connection between the alleged earlier offense or misconduct and the case being tried." United States v. Biswell, 700 F.2d at 1317-18.

Furthermore, before such evidence is properly admitted it must tend to establish intent, knowledge motive or one of the enumerated exceptions; must have real probative value, not just possible worth; and must be reasonably close in time to the crime charged. United States v. Hogue, 827 F.2d 660, 662-62 (10th Cir.1987); United States v. Morales-Quinones, 812 F.2d 604, 612 (10th Cir.1987); United States v. Franklin, 704 F.2d 1183, 1189 (10th Cir.), cert. denied 464 U.S. 845, 104 S.Ct. 146, 78 L.Ed.2d 137 (1983); United States v. Engleman, 648 F.2d 473, 478 (8th Cir.1981). Finally, even if the trial court determines that the "other acts" evidence satisfies the criteria for admission under Rule 404(b), it must balance the evidence's probative value and prejudicial effect under Fed.R.Evid. 403. United States v. Hogue, 827 F.2d at 663.

In the instant case, we find substantial compliance with the above stated requirements. The district court held a hearing outside the presence of the jury prior to Gardner taking the stand, at which time the government made a detailed proffer of the witness's proposed testimony pursuant to the court's request. Moreover, the prosecutor established that the testimony was both clear and convincing, as evidenced by the fact that Cuch had entered a plea of guilty to an assault charge arising out of the Gardner incident and had been sentenced to thirty months imprisonment. Finally, the prosecutor identified the 404(b) exception he was relying on, noting that the factual similarities "shed great light on what [Cuch's] intent was when he took Ms. Boren out of the convenience store." [Tr. Vol. III 116-118; emphasis added].

Defense counsel urged that the Gardner incident was too remote in time...