People v. Salazar , 272 P.3d 1067 ( 2012 )

CHIEF JUSTICE BENDER,

dissenting.

1 31 The majority holds that the admission of evidence of an alternate suspect where identity of the perpetrator is an issue constitutes an abuse of discretion by the trial court because this evidence is minimally relevant and in any event would be confusing and misleading. Here, the defendant's wife sought to testify to the jury that her father, the grandfather of the victim, assaulted her when she was approximately the same age as the victim. I believe the defendant should be entitled to present such evidence to a jury as part of an accused's right to present a meaningful defense. When the appropriate standard of review is applied to the trial court's decision to admit this evidence-whether the trial court abused its disceretion-the trial court's decision should be affirmed because this evidence is both relevant and the danger of confusion of the issues is minimal. Hence, I respectfully dissent.

I.

T 32 The trial court's decision to admit the evidence of the alternate suspect's prior sexual assault of his daughter is reviewed for an abuse of discretion. See People v. Quintana, 882 P.2d 1366, 1371 (Colo.1994) ("[Albsent an abuse of discretion the evidentiary rulings of a trial court will be affirmed."). A court abuses its discretion only if its decision is "manifestly arbitrary, unreasonable, or unfair." Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff's Dep't, 196 P.3d 892, 899 (Colo. 2008). "In assessing whether a trial court's decision is manifestly unreasonable, arbitrary, or unfair, we ask not whether we would have reached a different result but, rather, whether the trial court's decision fell within a range of reasonable options." E-470 Pub. Highway Auth. v. Revenig, 140 P.3d 227, 230-31 (Colo.App.2006). Accordingly, we do not look to see whether we agree with the trial court. Streu v. City of Colorado Springs ex rel. Colorado Springs Utils., 239 P.3d 1264, 1268 (Colo.2010) (citing In re Bueno, 248 B.R. 581, 582-83 (D.Colo. 2000). Instead, our role is simply to review the trial court's decision to ensure that it did not "exceed[ ] the bounds of the rationally available choices." Id. (quoting Big Sky Network Can., Ltd. v. Sichuan Provincial Gov't, 533 F.3d 1183, 1186 (10th Cir.2008)).

H.

133 The majority analyzes the proffered evidence under the Rape Shield Statute and concludes that the evidence of the grandfather's previous assault of his daughter establishes "at best, a very tenuous relevancy connection," and, even if relevant, the "danger of confusing the issues and misleading the jury substantially outweighs the minimal probative value, if any," of the evidence, and therefore the trial court abused its discretion by admitting the evidence. Maj. op. at ¶¶26, 27.

1 34 Proof of guilt of another has long been recognized as proper to present a complete and meaningful defense. People v. Flowers, 644 P.2d 916, 918 (Colo.1982). The test for admissibility of similar offense evidence of a third party is one of relevancy. People v. Bueno, 626 P.2d 1167, 1170 (Colo.App.1981); see also Flowers, 644 P.2d at 919. "If all of the similar facts and cireumstances, taken together, may support a finding that the same person was probably involved in both transactions, then evidence that the defendant did not commit the second transaction is relevant and admissible." Bueno, 626 P.2d at 1170. Of course, the evidence is subject to the trial court's determination of relevancy. See Holmes v. South Carolina, 547 U.S. 319, 326, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006).

T35 Materiality and probative value are the two components of relevant evidence. Fletcher v. People, 179 P.3d 969, 974 (Colo. 2007). To be material, the evidence must relate to a fact that is of consequence to the determination of the action. Id. To have probative value means there exists a tendency of the evidence to establish the proposition that it is offered to prove. Id. An item of evidence is but a single link in a chain of proof-therefore it need not conclusively prove the proposition for which it is offered. 1 George E. Dix et. al., McCormick on Evidence 733 (Kenneth S. Brown, ed., 6th ed. 2006) (hereinafter "McCormick ").

T36 These two concepts are codified in C.R.E. 401, which defines relevant evidence as "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." Relevancy is not an inherent characteristic of an item of evidence, but exists only as a relation between an item of evidence and a matter properly provable in the case. Fed.R.Evid. 401 advisory committee's note. Trial judges have broad discretion to determine whether evidence is relevant. People v. Schwartz, 678 P.2d 1000, 1009 (Colo.1984).

137 Here, the majority concludes that there is a "very tenuous relevancy connection" between the grandfather's previous assault of his daughter and Salazar's alternate suspect defense alleging that the grandfather assaulted the victim. Maj. op. at 126. I disagree.

138 As the majority concedes, who committed this assault was an issue for the jury to decide. Maj. op. at 115. There was significant evidence that that the vietim may have been mistaken in her identification of Salazar: inconsistent statements by the vie-tim to her mother and during the forensic interview about what happened; the victim was not wearing her glasses during the incidents; it was dark except for limited ambient light from the television or early morning sun; and the victim initially disclosed observing the perpetrator had a grey shirt and later added that he was wearing red shorts. Salazar sought to introduce evidence that he was not wearing a grey shirt on the night of the allegations; the victim's grandmother told her that Salazar turned off the television one night, possibly influencing the victim's recollection of whether Salazar was present; the victim made inconsistent statements about whether she was able to see the perpetrator in the first incident; and the victim was inconsistent in her statements on where and when she saw Salazar sitting in a chair after an incident. The grandfather was present in the home the night of the assault and had access to the victim. The alleged previous sexual assault by the grandfather of his daughter involved a young family member of approximately the same age as the victim and included acts of digital penetration similar to those allegedly committed on the vie tim in this case. Hence, I suggest that given this set of cireumstances, the alternate suspect evidence that the grandfather, and not the defendant, committed the assault was relevant.

139 The trial judge's decision finding this evidence relevant was not manifestly arbitrary, unreasonable, or unfair and, hence, does not amount to an abuse of discretion. I note that if the grandfather were being prosecuted for assaulting the victim in this case, his previous assault of his daughter would be deemed relevant and highly probative, irrespective of the remoteness of the earlier assault. § 16-10-8301, C.R.S. (2011) (explaining that in a prosecution of a sexual offense, "[the general assembly finds that such evidence of other sexual acts is typically relevant and highly probative, and it is expected that normally the probative value of such evidence will outweigh any danger of unfair prejudice, even when incidents are remote from one another in time"); see also People v. Rath, 44 P.3d 1033 (Colo.2002) (holding that the trial court did not abuse its discretion in admitting evidence of two prior instances of uncharged misconduct by the defendant). Because Salazar seeks to prove that the grandfather assaulted the victim in this case, analogy to the rule that permits the admission of a past sexual act to prove a present sexual act of the same person appears apt and provides added support to establish the relevancy of this evidence.

T 40 Turning to the trial court's decision on whether this relevant evidence would be unfairly prejudicial under Rule 403, the trial court did not abuse its discretion when it ruled that this evidence was neither sufficiently confusing, nor misleading, nor unfairly prejudicial to be restricted. Rule 403 restricts relevant evidence which is unfairly prejudicial and substantially outweighs its probative value. People v. Dist. Court, 785 P.2d 141, 147 (Colo.1990). The trial court must apply Rule 408 to balance the probative value of the proffered evidence against any possible unfair prejudice. Harris, 43 P.3d at 225-26. "Unless trials are to be conducted as scenarios, or unreal facts tailored and sanitized for the occasion, the application of Rule 403 must be cautious and sparing. Its major function is limited to excluding matters of seant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect." Masters v. People, 58 P.3d 979, 1001 (Colo.2002) (quoting U.S. v. McRae, 593 F.2d 700, 707 (5th Cir.1979)).

[ 41 The ultimate question under Rule 403 is whether the evidence's "value is worth what it costs." McCormick at 736; see also 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence (84 ed.2007) § 4:2 (stating that evidence that is probative may be excluded under Rule 403 if it is "more trouble than it is worth"). Thus, evidence of past crimes may be inadmissible not because it has no appreciable probative value, but because it has too much. IA John Henry Wigmore, Wigmore on Evidence § 58.2 (1988); see also U.S. v. Aboumoussallem, 426 F.2d 906, 911 (2d Cir.1984). Evidence has "too much" probative value when it creates the risk that the jury will assign more significance to the evidence than is warranted and may cause the jury to reach a decision on an improper basis. See Masters, 58 P.3d at 1001.

1 42 "Analyzing and weighing the pertinent costs and benefits is no trivial task. Wise judges may come to differing conclusions in similar situations." McCormick at 789. A trial court is "virtually always" in the better position to assess the admissibility of evidence under Rule 408. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008). Accordingly, much leeway is given to trial judges who must fairly weigh probative value against probable dangers. McCormick at 740. In reviewing a trial court's decision, an appellate court should assume the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected. Rath, 44 P.3d at 1043. The test is strongly biased toward admissibility. Masters, 58 P.3d at 1001.

{43 The majority concludes that the probative value of the evidence that the grandfather assaulted his daughter is substantially outweighed by the danger of confusing the issues and misleading the jury. Maj. op. at 127. However, it cites no facts from the record to support this conclusion. I note that the trial court specifically found that the jury would be able to weigh the alternate suspect evidence fairly.

{44 In my view, the alternate suspect evidence has significant probative value not substantially outweighed by the danger of unfair prejudice. It has "a tendency to prove the proposition for which it is offered"-that is, that the grandfather, not the defendant, committed the assault in this case. Fletcher, 179 P.3d at 974.

1 45 "If judicial self-restraint is ever desirable, it is when a Rule 408 analysis of a trial court is reviewed by an appellate tribunal." U.S. v. Long, 574 F.2d 761, 767 (3d Cir.1978). We do not look to see if we agree with the trial court, but, rather whether the trial court's decision fell within the range of reasonable options. E-470, 140 P.3d at 230-31. I would not, as an appellate judge, insert my judgment for that of the trial court's and therefore I would affirm the trial court's ruling. Hence, I respectfully dissent.