Criminal Law Blog

Court Allows Detailed Evidence of Numerous Uncharged Incidents of Sexual Abuse to Provide Context for a Single, Charged Incident

 

Menendez v. United States (decided March 2, 2017).

Players: Associate Judges Glickman and Thompson, Senior Judge Reid. Opinion by Judge Reid. PDS for appellant. Trial Judge: Russell Canaan. Motions Judge: Robert Morin.

Facts: The government charged appellant with one count of first-degree child sexual abuse with aggravating circumstances. To prove this charge—unsupported by any physical evidence—the government was permitted to introduce a mountain of evidence of uncharged conduct that occurred in Maryland.

The complainant was appellant’s nephew who at the time of the alleged incidents was between the ages of nine and ten. The complainant testified to a single incident when appellant drove him to the optical office in D.C. where he worked in order to make eyeglasses for one of his sons. While there, the complainant claimed appellant took him to a small room, had him remove his pants, and anally raped him. Complainant testified that he did not tell anyone at first because “he was scared [and] confused” and “didn’t know what to do.” Eventually, he did tell his mother but she did not believe him. It was not until later when appellant put the complainant, his mother, and his aunt out of his house that the complainant again told his mother and later spoke with police. There was no other evidence of an incident occurring in D.C.

The government was allowed to introduce evidence of numerous other incidents of uncharged conduct that all occurred in Maryland. This evidence included testimony from the complainant that 1) appellant began performing sexual acts on him when they lived at his home in Maryland, in the bedroom, bathroom, backyard, and kitchen; 2) that appellant pulled complainant’s pants down one time when they were in the living room and complainant then felt appellant’s “private part enter into ‘his butt.’”; 3) appellant showed complainant pornographic movies while he touched himself and told complainant to do the same, followed by appellant anally penetrating complainant; 4) appellant forced complainant to perform oral sex on him on two occasions, and then anally penetrated him after one of the occurrences; and, 5) appellant forced complainant to “block the door” while he touched himself. After many of these incidents, according to the complainant, appellant would ask if he liked it and instruct him not to tell anyone. Additionally, complainant testified that one time he was at a friend’s house when appellant called him and told him to “put Vaseline on his private part, and ‘put it in [his friend’s] butt.” Lastly, two poems the complainant wrote that never mentioned complainant specifically were permitted to be introduced at trial. The poems were titled “I Hurt,” and “Life Has No Meaning.”

The government relied on additional witnesses. An aunt testified that one night, when she entered the room where complainant was sleeping, she “kind of felt something” when she tried to place complainant’s sleeping brother on the mattress. She then heard someone she believed to be appellant say, “oops” and “just put [the brother] down.” She did not expect appellant to be there, and he then got up and went to the backyard.  Also, the government played a videotape of complainant being interviewed by Child Protective Services about his allegations against appellant, and a nurse at the Sexual Assault Center at Prince George’s County Hospital testified to complainant being “very withdrawn” and that he said appellant “put his private part in his butt.”

The government also introduced evidence seized from appellant’s home, including “electronic devices, pornographic flyers, a pillow, a mattress cover” and “a black rubber ring used by a male in the performance of sexual acts,” which was similar to an object complainant said appellant used with him.

Issue:  Did the trial court err by permitting the “prosecution [to] present[] far more evidence of the Maryland abuse than was necessary to provide a context to explain [complainant’s] behavior during and after the [District of Columbia] assault?”

Holding: Not on this record. In Koonce v. United States, 993 A.2d 544 (D.C. 2010), the Court set out factors to admit evidence under the “narrow sexual abuse exception to the admission of propensity evidence.” There, the Court stated, “prior abuse evidence may be admitted under this narrow exception if (1) the sexual abuse involves a defendant and the same victim; (2) the relationship between the alleged abuser and the victim constitutes or approximates a close familiar connection; (3) the pattern of sexual abuse started when the victim was very young and occurred at reasonably short and regular intervals without meaningful interruption; and (4) the evidence is pivotal to the prosecution’s case because proof of context is required.” Id. at 556. The Court upheld the ruling below that all of the Koonce factors in the instant case were met.

The Court concluded the first factor was obviously met and that the second was met because appellant and complainant were described as being “really close,” complainant treated appellant “as his dad,” and complainant, his mom, and appellant occupied the same home in a family setting.  The third factor was satisfied by evidence of continuous abuse without a “multi-year gap between [appellant’s] acts of sexual abuse in Maryland, and his act of sexual abuse in the District of Columbia,” and that the abuse occurred over a “discrete period of time” between “early January 2009 and mid-May 2009[.]”

As to the fourth factor—the requirement for the evidence to be “pivotal” to providing “context”—the Court relied heavily on its determination that the trial court “carefully scrutinized the parties’ pleadings and arguments, and the [pertinent] proffer[s].” The Court agreed with the government’s position that “the evidence of [appellant’s] uncharged prior Maryland acts of sexual abuse against [complainant] was essential because it served as context for the charged act of sexual abuse in the District of Columbia, to explain [complainant’s] apparent lack of reaction or expressed concern, complaint or report of the abuse.” “On this record, where the trial court scrutinized and limited the evidence of the Maryland uncharged acts of sexual abuse and properly instructed the jury in response to its question about the limited purpose for which the Maryland evidence was introduced, we cannot say that the trial court erred or abused its discretion in ruling that the government’s proffer and proof satisfied the fourth Koonce factor.”

As to the prejudicial impact, appellant argued that even if the Koonce factors were met and some of the evidence admissible, there simply was no need to turn a trial about a single incident in D.C. into a lengthy trial that focused the overwhelming majority of the time on highly prejudicial testimony about the uncharged misconduct. The Court, however, concluded that the uncharged misconduct “no doubt . . . had probative value,” and that because the trial court “spent substantial time” on the issue with its “expertise in evidentiary matters,” “we cannot say that the trial court abused its discretion[.]”

Of Note:

  • The Court declined to consider appellant’s Brady claim that the government failed to disclosed favorable evidence regarding its witness's bias because that claim was presented for the first time on appeal and the Court deemed the record insufficient for appellate review. The Court said it would decline to hear the issue until a §23-110 motion was filed in Superior Court. 
  • The Court emphasized several times that the Koonce test represents a “narrow exception” to the rule against propensity evidence, applicable only when all four Koonce factors are met and when the prior abuse has been established by “clear and convincing” evidence.
  • The Court reiterated Koonce’s finding that in order to satisfy the four “pivotal context”  prong for admissibility, the uncharged evidence must do more than provide a “starting point” for the charged conduct.  BM

Read the full opinion here.