2014 COA 162
Colo. Ct. App.2014Background
- Defendant, Franklyn J. Whitlock, married the victim's mother D.Q. when the victim was an infant and separated when the victim was 11.
- The victim stayed at Whitlock's home for a weekend; she awoke to Whitlock touching her vagina after he laid beside her and later left the room.
- The victim reported the incident to her mother and stepfather years later, leading to police involvement.
- Prosecution admitted the victim's testimony plus evidence of Whitlock's other acts and two pretextual telephone calls, and additional “other bad acts” evidence.
- Jury convicted Whitlock of sexual assault on a child and sexual assault on a child by one in a position of trust; he was sentenced to four years to life in DOC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of other acts evidence against D.Q. | Evidence is logically relevant for identity/motive/intent and to rebut fabrication. | Possible unfair prejudice outweighs probative value; evidence should be limited. | Admissible; probative value outweighs prejudice. |
| Admissibility of acts involving J.N. | Acts show propensity not; but probative for motive/identity/intent and fabrication. | Lacks logical relevance; highly prejudicial. | Erroneous admission; harmless error beyond reasonable doubt. |
| Probation denial based on Fifth Amendment rights | Court can consider treatment participation and likely response to probation. | Fifth Amendment rights cannot be punished by denial of probation. | Probation denial upheld; Fifth Amendment consideration permissible in probation decision. |
| Constitutionality of SOLSA | Not reviewed; appeal raised this issue for first time and was not preserved. |
Key Cases Cited
- People v. Jones, 311 P.3d 274 (Colo. 2013) (statutory framework for admissibility of other act evidence in sex offenses under CRE 404(b))
- People v. Rath, 44 P.3d 1033 (Colo. 2002) (incremental probative value versus unfair prejudice in 404(b) analysis)
- Martinez, 36 P.3d 154 (Colo. App. 2001) (utility of other act evidence to show defendant's intent and lack of fabrication)
- Mata, 56 P.3d 1169 (Colo. App. 2002) (probative value outweighs unfair prejudice in sexual misconduct evidence)
- Ruch, 2013 COA 96 (Colo. App. 2013) ( Fifth Amendment considerations in probation-related decisions)