May 25, 2019

Colorado Court of Appeals: Prejudicial Effect of Other Bad Act Evidence Outweighed Possible Relevance

The Colorado Court of Appeals issued its opinion in People v. Brown on Thursday, October 9, 2014.

Stalking—Surveillance—Other Acts Evidence—Expert.

Defendant asked a woman he knew to “house sit” his apartment for six months while he worked in South Korea. Before he left, and without the house sitter’s knowledge, defendant set up motion-sensitive video cameras in the apartment’s bedroom and living room. The house sitter discovered the cameras about twelve days after she moved in. Some of the recordings showed the house sitter having sex with her boyfriend. A jury convicted defendant of two counts each of stalking, invasion of privacy, and unlawful sexual contact.

On appeal, defendant contended that the trial court abused its discretion when it “admitted other act evidence of an unrelated sexual encounter involving another individual.” The prosecution’s offer of proof alleged that a woman who had rented a room to defendant awoke one night to find him crouched near her bed, wearing only his underwear, and masturbating while watching her. The woman’s trial testimony was significantly different from the prosecution’s offer of proof. At trial, she stated that she awoke because defendant had touched her “underneath the covers in [her] crotch.”The woman’s description at trial was qualitatively different, more severe, and more inflammatory than the evidence concerning the charged offenses. Therefore, her testimony was inadmissible pursuant to CRE 403 and the trial court erred by admitting such evidence. Because there was a reasonable probability that the error contributed to defendant’s convictions by substantially influencing the verdict or impairing the trial’s fairness, the convictions were reversed and the case was remanded for a new trial.

Defendant also contended that the trial court abused its discretion when it excluded the psychologist’s testimony concerning the charge of unlawful sexual contact. Defendant sought to admit testimony by a psychologist who performed a sex-offense-specific evaluation of defendant. The psychologist’s report found that (1) defendant had a sexual interest consistent with the interests of the general adult male population of the United States, and (2) defendant’s interest in voyeurism was not significant enough to classify him as abnormal. Because the evidence was relevant to the charge of unlawful sexual contact, the court abused its discretion in excluding such testimony. The trial court should allow defendant to present such evidence on retrial.

Defendant further argued that the evidence was insufficient to support his convictions for stalking. Defendant’s use of the cameras constituted surveillance, which supported the stalking charge.

Summary and full case available here, courtesy of The Colorado Lawyer.

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