Opinion
No. 76-934
Decided April 6, 1978. Rehearing denied April 27, 1978. Certiorari granted June 26, 1978.
Convicted of first degree burglary and attempt to commit first degree sexual assault, defendant appealed.
Affirmed
1. CRIMINAL LAW — Evidence — Similar Transactions — Sex Offenses — Other Persons — Admissible — Limited Purpose. Under present statute, evidence of similar transactions is admissible against a defendant in a sexual assault case to show criminal intent or plan, scheme, and design regardless of whether the evidence of similar episodes relates to acts with persons other than the complaining witness and even if a prima facie case of the defendant's intent is first established.
2. Evidence — Sexual Assault — Another Offense — Sufficiently Similar — — Admissible — Common Identity — Modus Operandi. Where, in sexual assault prosecution, evidence was offered of incident in which defendant broke into apartment in same apartment complex where complainant lived and attacked a woman he had met earlier in the evening, as had happened with complainant, and where in that incident defendant broke glass door, threatened victim with a knife, attempted to cover her face, and cut the telephone cords, all as had occurred in the attack on complainant, the episodes were sufficiently similar so that common identity and modus operandi could properly be inferred, and thus the trial court did not abuse its discretion in admitting the evidence.
Appeal from the District Court of the City and County of Denver, Honorable Leonard P. Plank, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, J. Stephen Phillips, Chief, Criminal Appeals, Appellate Section, Anthony M. Marquez, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Ilene P. Buchalter, Deputy State Public Defender, for defendant-appellant.
The defendant, David Pigford, appeals his jury conviction of first degree burglary and attempt to commit first degree sexual assault. We affirm.
Evidence presented by the People showed that the complainant, the defendant, and others were at the apartment of the complainant's friend and the defendant's sister, on the evening of March 27, 1976. At about ten o'clock the complainant returned to her apartment which was two doors away.
Shortly after turning out the lights and locking the door, the complainant heard the door rattle. She got up, looked through the screen, and saw a man whom she later identified as the defendant. She tried to block the door with a table, but the man broke a glass window in the door and unlocked the door. He pushed the door open, knocking the complainant to the floor, and stepped or fell on her. He hit her several times about the face, telling her that all he wanted to do was to have sexual intercourse and that if she did not stop screaming, he would kill her. The complainant broke free, and ran from the apartment, called out to her sister who lived in the adjoining apartment, and fainted on a nearby lawn.
The defendant's sister was in her kitchen when she heard a scream from outside. She looked out and saw the complainant lying on the ground and a figure resembling her brother running away. She also heard someone yell, "Pigford! " She helped the complainant into her apartment and then called her brother's nearby apartment. On the second attempt she reached him and told him to come back to her apartment.
When the police arrived the defendant was standing outside his sister's apartment. He was overheard to say, "What chance do I have?" He had blood on his hands, apparently from some small cuts. When the complainant was brought into his presence she became hysterical and indicated that the defendant was her assailant.
Pursuant to § 16-10-301(2), C.R.S. 1973 (1976 Cum. Supp.), the trial court conducted a hearing to determine whether evidence of another criminal episode involving the defendant could be introduced pursuant to subparagraph (1) of the statute to show "a common plan, scheme, design, identity, modus operandi, motive, guilty knowledge or intent." That evidence showed that on December 7, 1975, a man identified as the defendant broke into an apartment located in the same apartment complex in which the complainant lived, and attacked a woman whom he had met for the first time earlier that evening. Shortly after the woman had gone to bed, the defendant entered her apartment by breaking the glass window on the door. He raped her, threatening to kill her if she told anyone. He was armed with a knife, attempted to cover the woman's face, and cut the telephone cords as he left.
It appearing that the People had established a prima facie case against the defendant through the complainant's testimony, as required by subparagraph (4) of the statute, and that the episodes were similar, the trial court ruled that the evidence was admissible, thus determining pursuant to subparagraph (2) of the statute, that the prejudice which would result to the defendant was outweighed by the "evidentiary value of the evidence." Pursuant to subparagraph (3) of the statute, the jury was instructed (without objection to the form of the instruction) that the evidence was admissible for the limited purpose of showing intent, plan, scheme, or design.
Reyling on such cases as United States v. Goodwin, 492 F.2d 1141 (5th Cir. 1974), and United States v. Ring, 513 F.2d 1001 (6th Cir. 1975), the defendant asserts that complainant's testimony to the effect that he knocked her down, struck her, and told her that he was going to have sexual intercourse with her, if believed, clearly demonstrated an intent to commit sexual assault. Therefore, the defendant contends that admission of evidence relative to December episode constituted reversible error. He also argues that the two episodes lacked sufficient similarly to permit an inference of common plan, scheme or design.
[1] We recognize that in sexual assault cases, evidence of similar transactions was formerly limited to episodes involving the victim of the offense charged, and was usually admitted solely for the purpose of showing criminal intent or plan, scheme, and design. See, e.g., Huerta v. People, 168 Colo. 276, 450 P.2d 648 (1969); Dockerty v. People, 74 Colo. 113, 219 P. 220 (1923). However, the General Assembly has now authorized the use of such evidence in sexual assault cases, regardless of whether the evidence of similar episodes relates to acts with persons other than the complaining witness and even if a prima facie case of the defendant's intent is first established. And, because a similar modus operandi was used on each occasion, we conclude that the trial court did not abuse its discretion in admitting this evidence to show common design, scheme or plan. See Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972).
The defendant contends that, nonetheless, admission of the evidence was erroneous because the episodes were not so similar as to permit an inference of common identity or modus operandi. We also disagree with this contention.
[2] Determination of the relevancy and potential prejudice of evidence in a criminal trial is within the sound discretion of the trial court. People v. Bynum, 192 Colo. 60, 556 P.2d 469 (1976). Here, the episodes were sufficiently similar so that the common identity and modus operandi could properly be inferred, and thus, the trial court did not abuse its discretion. See People v. Henderson, 38 Colo. App. 308, 559 P.2d 1108 (1976).
Judgment affirmed.
JUDGE SMITH concurs.
JUDGE BERMAN dissents.