People v. Leonard

Opinion by

Judge RULAND.

Defendant, John Patrick Leonard, appeals the judgment of conviction entered upon a jury verdict finding him guilty of aggravated incest. He also appeals the 12-year sentence imposed and the trial court’s order denying his Crim.P. 35(c) motion for a new trial based on newly discovered evidence. We affirm the judgment of conviction and order, vacate the sentence, and remand for resentencing.

Defendant’s conviction was based upon testimony by his adult stepdaughter that he had engaged in sexual intercourse with her when she was 13 years old.

At a hearing on defendant’s motion in li-mine regarding admission of similar transaction evidence, the prosecution proposed to elicit testimony from the victim concerning seven other incidents of improper sexual contact commencing when the victim was three years of age. After addressing the requirements for admission of similar transaction evidence adopted in People v. Spoto, 795 P.2d 1314 (Colo.1990) and People v. Garner, 806 P.2d 366 (Colo.1991), the trial court concluded that the evidence was admissible to show motive, subject to giving appropriate limiting instructions to the jury.

I.

On appeal, defendant contends that the trial court erred in admitting the similar transaction evidence. He maintains that the evidence was not admissible to establish motive because the motive is inferred from the act itself and that only one motive could be inferred from the crime, namely, sexual gratification. He further contends that the court’s ruling violated all of the four requirements for admission of this type of evidence under CRE 404(b) as established in People v. Spoto, supra. Finally, defendant argues that the requisite similarity is lacking. We are not persuaded.

Prior to the adoption of CRE 404(b) and § 16-10-301(2), C.R.S. (1986 Repl.Yol. 8A), evidence of prior sexual assaults against the same child victim was held admissible by our supreme court in connection with proof of the charged offense on a number of occasions. People v. Elliston, 181 Colo. 118, 508 P.2d 379 (1973); Hood v. People, 130 Colo. 531, 277 P.2d 223 (1954); see also Huerta v. People, 168 Colo. 276, 450 P.2d 648 (1969). Ordinarily, the evidence was received for the purpose of showing a plan, scheme, or design. See Godfrey v. People, 168 Colo. 299, 451 P.2d 291 (1969). However, early in its jurisprudence governing admission of similar’ transaction evidence generally, the court also held that such evidence was “always” admissible to show the accused’s motive to commit a crime. Warford v. People, 43 Colo. 107, 112, 96 P. 556, 558 (1908); see also Bell v. People, 158 Colo. 146, 406 P.2d 681 (1965).

Currently, similar transaction evidence is admissible in sexual assault cases to show plan, scheme, design, modus operandi, motive, or guilty knowledge if that evidence meets the four-part test for admissibility under CRE 404(b) and the statutory requirements of § 16-10-301(2), C.R.S. (1986 Repl. Vol. 8A). Adrian v. People, 770 P.2d 1243 (Colo.1989).

The trial court has substantial discretion in deciding the admissibility of this evidence, and only if there is an abuse of discretion will its ruling be disturbed. People v. Czemerynski, 786 P.2d 1100 (Colo.1990).

A.

In regard to the threshold issue mandating similarity between the charged and uncharged conduct, we conclude that the trial court did not err in determining that the evidence satisfied this requirement.

The record reveals sufficient and substantial similarity between the other transactions and the offense charged. The similar transactions occurred in private places, were characterized by similar express or implicit intimidation by defendant, and involved the same parties. See People v. Vollentine, 643 P.2d 800 (Colo.App.1982).

Although there were differences as to the type of sexual activity performed during each incident, it is not essential that the other transactions replicate in all respects the manner in which the crime charged was committed. People v. Garner, supra; People v. McKibben, 862 P.2d 991 (Colo.App.1993). The evidence indicated that, as the victim grew older, the sexual activity changed from digital penetration to sexual intercourse. Hence, we conclude that there is record support for the trial court’s ruling.

B.

We also reject defendant’s contention that the evidence was not admissible because the motive for the charged act was obvious, namely, sexual gratification.

We recognize that evidence of uncharged conduct indicative of motive is generally admitted for the purpose of establishing identity or intent. See E. Imwinkelried, Uncharged Misconduct Evidence § 3:15 (1984). However, admission of such evidence under § 16-10-301(2) has been approved in sexual assault cases on a number of occasions as bearing on defendant’s motive even though identity and intent were not at issue. Adrian v. People, supra, (admitted to show motive and modus operandi); People v. Holder, 687 P.2d 462 (Colo.App.1984) (admitted to show motive and guilty knowledge); People v. Vollentine, supra, (admitted to show motive and plan, scheme, and design); People v. McKibben, supra, (admitted to show common plans, modus operandi, motive, and intent). Thus, while sexual gratification may be a motive in any sexual assault, as the cited cases necessarily establish, the concept of motive involves more.

In our view, the concept of motive in a sexual assault ease may also address other relevant factors such as why a particular type of behavior is involved or why a particular victim is selected for the assault. Thus, evidence of motive as reflected in the occurrence of prior uncharged conduct may tend to establish the charged offense. Hence, we conclude that the trial court did not err in concluding that similar transaction evidence was admissible here on the issue of motive.

C.

In applying CRE 404(b), the four-part test adopted in People v. Spoto, supra, requires that: (1) the evidence must relate to a material fact in the case; (2) it must be logically relevant to the material fact; (3) the logical relevance must be independent of the prohibited inference that the defendant committed the crime charged because of his criminal propensities; and (4) the probative value of the evidence substantially must outweigh the danger of unfair prejudice.

We initially address the first two requirements for admission of this evidence under the rule, i.e., whether the evidence related to a material fact and, if so, whether the evidence was logically relevant in that it had a tendency to make the existence of the material fact more probable.

Here, as confirmed by the opening statement of defendant’s trial counsel and the cross-examination of the prosecution witnesses, defendant’s position was that the charged acts were fabricated by the victim and thus never occurred. Hence, in our view, evidence of the defendant’s prior acts of assault against the victim without consequence was relevant to demonstrate that it was more probable than not that defendant had a motive to commit yet another assault and thus to demonstrate that the victim’s testimony was not fabricated. See Adrian v. People, supra. Hence, we find no abuse of the trial court’s discretion in admitting this evidence as logically relevant to a material issue in the case. See People v. McKibben, supra.

We next address whether the logical relevance of the evidence was independent of the intermediate inference that the defendant had a bad character.

We agree with defendant that this evidence does not describe a person of good character. See People v. McKibben, supra (Briggs, J., dissenting). However, the same is true in every sexual assault case, and we cannot read the pertinent cases as precluding introduction of the evidence for this reason. Conversely, as the trial court noted, because of the remoteness of the crime charged, the fact that the case turned on the testimony of the victim against that of defendant and the nature of the incident itself, the need for the evidence was compelling. See Adrian v. People, supra.

Because the evidence also indicates more than bad character, namely, a motive for commission of the charged offense, we con-elude, consistent with the other cases addressing this requirement, that the trial court did not err in admitting the evidence. See Adrian v. People, supra; People v. McKibben, supra. To the extent that People v. Guilbeaux, 761 P.2d 255 (Colo.App.1988) is inconsistent with the result we rea6h here, we decline to follow that decision.

Addressing the final requirement that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, we note only that this type of evidence has not been deemed inadmissible by virtue of this requirement in the'various Colorado appellate decisions cited above with similar fact patterns. Like those cases, there is no basis in the record for us to conclude that the evidence in this case excited the emotions of the jury to irrational behavior.

II.

The trial court instructed the jury at the time the evidence was admitted at trial, and again in the general charge to the jury, that the evidence was being admitted for the limited purpose of demonstrating defendant’s motive. The jury instructions substantially tracked the language of COLJI-Crim. Nos. 2:02 and 4:02 (1983). Defendant contends, however, that reversal of the judgment is required because the trial court failed to define motive in its instruction. We disagree.

In our view, “motive” is a word with which reasonable persons of common intelligence would be familiar and not so technical as to create confusion in jurors’ minds as to its meaning. Hence, the trial court was not required to define the word for the jury. See People v. Deadmond, 683 P.2d 763 (Colo.1984).

III.

Defendant next contends that the trial court abused its discretion in denying his motion for new trial based on newly discovered evidence. We again disagree.

To succeed on a motion for new trial based on newly discovered evidence, the defendant must show: (1) that the evidence was discovered after the trial; (2) that defendant and his counsel exercised diligence to discover all possible evidence favorable to the defendant prior to and during the trial; (3) that the newly discovered evidence is material to the issues involved, and not merely cumulative or impeaching; and (4) that the newly discovered evidence is of such a character as probably to bring about an acquittal verdict if presented at another trial. People v. Gutierrez, 622 P.2d 547 (Colo.1981).

Motions for new trial based on newly discovered evidence are generally looked upon with disfavor, and a denial of such a motion will not be overturned unless it has been shown that the trial court clearly abused its discretion. People v. Williams, 827 P.2d 612 (Colo.App.1992).

Here, the trial court determined that the evidence was discovered after trial, that the defendant and his counsel exercised due diligence to discover all favorable evidence prior to and during the trial, and that the newly discovered evidence was material. Nonetheless, the court concluded that the evidence would not have resulted in an acquittal of the defendant.

The evidence presented at the motion hearing did not account for the entire period contained in the information. The alleged incident occurred between April 7 and August 25, 1980. The evidence was in conflict as to whether the defendant and his family moved to Wetmore in June or July of 1980. Hence, we conclude that the trial court did not abuse its discretion by denying the motion for new trial based upon newly discovered evidence. We concur with the trial court’s conclusion that the asserted newly discovered evidence would probably not have produced a verdict of acquittal on retrial.

IV.

Defendant finally contends that the trial court abused its discretion in sentencing him in the aggravated range. He argues that the sentence imposed is illegal because it exceeds the maximum in the presumptive range and the trial court failed to make findings of extraordinary aggravating circumstances as required by § 18-1-105(7), C.R.S. (1986 Repl.Vol. 8B). We agree.

The range of punishment available to the trial court is determined by the applicable law at the time of the offense. People v. Wieghard, 743 P.2d 977 (Colo.App.1987). Because the offense occurred between April 7 and August 25, 1980, the applicable presumptive range sentence for a class three felony was four to eight years plus one year of parole. Section 18-l-105(l)(a)(I), C.R.S. (1986 Repl.Vol. 8B). The presentence report stated that the range was four to sixteen years, which was the presumptive range at the time of trial. Section 18 — 1— 105(l)(a)(IV), C.R.S. (1992 Cum.Supp.).

Hence, in order to sentence defendant to 12 years, the trial court was required to make specific findings on the record detailing the specific extraordinary circumstances which constitute the reasons for varying from the presumptive range. Section 18-1-105(7). Since the trial court did not make specific findings of extraordinary aggravating circumstances, we vacate the sentence and remand for resentencing.

Accordingly, the judgment and order are affirmed, the sentence is vacated, and the cause is remanded for resentencing.

PLANK, J., concurs. CRISWELL, J., dissents.