In this case, we are confronted once again with the “perplexing” question of “when evidence of a particular criminal act [i.e., so-called “other crimes evidence”] may be admitted.” Thompson v. United States,
We think the question whether the trial court erred in admitting the testimony requires a more nuanced answer. In light of appellant’s consent defense, which his trial counsel asserted in her opening statement and thereafter pursued through his examination of witnesses, we conclude that the prior-sexual-assault testimony was admissible as “intent” evidence — specifically, as evidence tending to prove that appellant had the intent to engage in the charged sexual acts by force. At the same time, we conclude that the court’s instructions to the jury erroneously permitted jurors to consider the prior-sexual-assault evidence as “motive” evidence. We conclude ultimately that the error was harmless because the testimony was legitimately probative of intent, the prejudicial effect of the testimony did not substantially out
I. Background
J.S.,
Nichie Douglas, a sexual assault nurse examiner (“SANE nurse”), examined J.S., who informed Douglas that she had been sexually assaulted. Douglas collected oral, anal, and anorectal swabs. Douglas did not detect any injuries or any “obvious cuts or tears” on J.S.’s body, but testified that J.S. complained of pain in her rectal/anus area.
The jury was read a stipulation that appellant became a suspect after a search of the FBI’s DNA database revealed that the DNA profile from biological material obtained from J.S.’s rectal swabs matched the DNA profile of appellant. The jury was not allowed to learn that appellant’s DNA profile was obtained in connection with an earlier sexual assault in 2000, or that, after a criminal proceeding in the Superior Court Juvenile Division, appellant (who was 17 years old at the time) had been found responsible as a juvenile for that sexual assault. However, the complainant in the 2000 sexual assault, J.W., testified as a government witness in the instant matter.
J.W. told the jury that on the evening of March 8, 2000, she was standing alone on Georgia Avenue, trying to hail a taxicab, when appellant (whom she recognized as a fellow student at Roosevelt High School) came across the street to where she was standing and began talking to her. Appellant had been standing with “a bunch of guys” across the street, but otherwise “there really wasn’t anyone else outside that night,” only a few cars drove by, and the street was quiet. Appellant told J.W. that he had “always liked” her, and he offered to walk her home. When J.W. declined the offer, appellant walked further up Georgia Avenue towards an area of abandoned buildings. Very shortly thereafter, appellant returned to where J.W. was standing and told her that he had a gun and would shoot her if she screamed. J.W. saw the handle of a gun in appellant’s coat pocket. Appellant told her to come with him and walked her to a
Appellant did not testify, but defense counsel asserted in her opening statement that appellant had consensual, anal sex with J.S. on May 14 and took J.S.’s cell phone. Counsel told the jury that it was only after the anal-sex encounter that J.S. revealed to appellant, for the first time, that she is a biological male.
Upon the jury’s guilty verdicts, the trial court sentenced appellant to an aggregate term of 540 months’ incarceration. On appeal, the sole issue appellant raises is his claim that the trial court abused its discretion in admitting J.W.’s testimony. He argues that her testimony about a pri- or sexual assault “served only the impermissible purpose of showing that the appellant had a propensity to commit sex crimes[,]” and that the evidence therefore was inadmissible under Drew v. United States,
II. Applicable Law
“Although the fact that a person committed a crime on another occasion
Before a court may admit other-crimes evidence under one of the exceptions, the government must first establish (1) by “clear and convincing evidence that the defendant committed the other offense” (a burden that was met in this case since the Juvenile Court had found appellant responsible for the other crime
(1) whether, and to what degree, intent as an issue can be distinguished from predisposition to commit the crime; (2) whether intent is a genuine, material and important issue, rather than merely a formal one; (3) whether the trial judge made [her] decision whether or not to admit the evidence at an appropriate time, when information as to all pertinent factors was available; and (4) whether the trial judge’s instructions to the jury could and did resolve any issue of prejudice.
Thompson,
III. The Trial Court’s Ruling
In its pre-trial “Notice of Intent to Introduce Evidence of Defendant’s Other Crimes and Prior Bad Acts,” the government told the court that the proffered testimony about appellant’s armed sexual assault on J.W. was “relevant to establish the defendant’s identity as the perpetrator, as well as to prove his motive and intent in forcibly raping [J.S.], and in establishing that the sexual assault acts were non-consensual.” The trial judge recognized that her ruling on the admissibility of the other crimes evidence depended in large part on what defense would be asserted. Before having heard a proffer about the defense theory of the case — but inviting defense counsel to make a proffer — the judge stated that she thought the evidence would be “quite relevant” “if the defendant were to testify or if there were any hint in opening, cross-examination, closing, or anywhere else in the trial that there was a consent defense here[.]” When defense counsel confirmed that he would “open on” consent (and that identity would not be an issue), the court ruled that the other crimes evidence would be admissible in the government’s case-in-chief, explaining that “a consent defense ... goes directly both to the defendant’s state of mind and to the victim’s state of mind.” Evidence of the previous sexual assault, the court said, would “not be admitted ... for the purpose of establishing propensity, but in fact to establish both an absence of consent and the defendant’s motive
Several days later, before J.W. testified, the court sought confirmation from defense counsel that the defense was not “backing off of consent” as a defense. In an ex parte conference at the bench, defense counsel confirmed that he would be arguing consent and added that he also intended to call a witness (Armstrong) who would testify that she heard J.S. say that the encounter between J.S. and appellant was (as the court summarized the proffer) “some sort of sex in exchange for money thing and ... the money part went bad.” Thereafter, the court said that it would maintain its ruling and clarified its rationale:
I conclude, ... given the defense in this case, which will in some form or fashion be an argument to the jury that the complainant consented to the sex in this case, that the evidence ... that the defendant previously forced sex upon another human being in circumstances similar to this one is relevant and very probative with regard to the defendant’s state of mind, in other words, his understanding that the sex in this case was not consented to, and the motive behind all of his actions in the case, in other words, that he had planned to and was carrying out a plan to force sex upon some individual, any individual, the one he chose after having formulated the plan, and that the prior crime is extremely probative of motive and intent. So I will admit it. I do find that the prejudicial effect does not substantially outweigh the probative value. 15
Appellant now argues that the trial court abused its discretion in admitting the evidence under the “intent” and “motive” exceptions to Drew.
IV. Analysis
A. Whether J.W.’s testimony was admissible under the “intent” exception
Appellant contends that because he acknowledged having engaged in sex with J.S., his own intent was not in dispute “in any meaningful sense.”
If the “intent” issue had been merely whether appellant acted toward J.S. with the intent to gratify his sexual desire, we would agree with appellant that his intent was not genuinely controverted, because he did not contest that he intended to and did engage in sexual acts with J.S.
As appellant acknowledges, for a conviction of first-degree sexual abuse, the requisite intent is “the intent to (1) engage in a sexual act (2) by force.” Appellant’s Reply Brief at 4. Because appellant’s de
In each of the eases on which the trial court relied in ruling that J.W.’s testimony would be admitted — Crisafi, Calaway, and Dyson — this court held that because the different sexual-assault incidents described in the opinions involved similar factual circumstances, evidence of one completed or attempted sexual assault by the defendant was admissible to prove the defendant’s intent to commit sexual assault in another (or other) incident(s). In Crisafi, where the issue was denial of a motion for severance, Crisafi raised a consent defense to the charge that he raped one complainant and, as to the charge of assault with intent to rape a second complainant, claimed that the second complainant had attacked him during an argument over politics. See
In Calaway, the issue was admissibility of testimony about a prior assault in which Calaway told the complainant hotel night clerk to take her clothes off and then knocked her onto the bed in the room she was showing him and climbed on top of her. See
In Dyson, the issue was the trial court’s failure to sever a charge based on a March 15 sexual assault of one complainant from charges based on the alleged first-degree sexual abuse of two other complainants on March 17. See
Appellant disparages the trial court’s and the government’s reliance on the foregoing precedents. He stops short of characterizing as dictum the statements in those cases about the admissibility of the other-sexual-assault evidence under the Drew “intent” exception,
We think that neither Crisafi nor Calaway (nor Dyson) can meaningfully be distinguished from this case on the basis of whether the government was required to prove specific intent. For Drew “intent” exception purposes, “[t]he materiality of
The more difficult question is whether the testimony about appellant’s having sexually assaulted J.W. was “logically relevant to prove [intent] for a reason other than its power to demonstrate criminal propensity,”
[ I]f a person acts similarly in similar situations, he probably harbors the same intent in each instance, and that such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.
People v. Gallego,
The trial court employed essentially the same reasoning when it ruled that J.W.’s testimony would be admitted. The court found that the two incidents described were
quite, quite similar in that the defendant approached a person waiting for transportation on the street, initially asked her to have sex with him or date him, and then at gunpoint or at threat at the use of a gun took her to a location — and this, I think, is quite significant — an abandoned location in each case which the defendant apparently had designated ahead of time and preordained the location of this planned assault[.]
The court’s observation about the similarities in J.S.’s and J.W.’s accounts
B. Whether J.W.’s testimony was admissible under the “motive” exception
The discussion above explains why we conclude that J.W.’s testimony was admissible under the Drew “intent” exception. It does not end our analysis, however. While we conclude that J.W.’s testimony was probative on the issue of intent and thus was relevant for a non-propensity purpose, we also are concerned that the court’s instructions may have caused jurors to understand that they could use the testimony for an impermissible purpose.
Before J.W. completed her testimony, and again during jury instructions, the court instructed the jury:
You have heard evidence that the defendant previously had sexual contact with [J.W.] by force and without her consent. It is up to you to decide whether to accept that evidence. If you find that the defendant previously had sexual contact with [J.W.] by force and without her consent, you may use this evidence only for the limited purpose of deciding whether the defendant had a motiveand/or the intent to have sexual contact until [J.S.] by force or without her consent, as is charged in this case. You may not use this evidence for any other purpose.
... The defendant is not charged in this case with any offense relating to his contact with [J.W.] in the year 2000, and you may not use this evidence to conclude that the defendant has a bad character or that the defendant has a criminal personality. The law does not allow you to convict a defendant simply because you believe he may have done bad things not specifically charged as crimes in this case.
Thus, through the language we have italicized above, the court told the jury that they were permitted to use the evidence about appellant’s previous forcible sexual encounter with J.W. for the purpose of deciding whether appellant had a “motive” to have sex with J.S. by force. Our case law instructs, however, that the admissibility of other crimes evidence under the Drew “motive” exception “depends on the identity of the parties, i.e., on the fact that the defendant had a motive to harm this particular victim, with whom he already had an established relationship.” Hill v. United States,
If, for instance, in a sexual assault prosecution, evidence of prior bad acts against other victims is introduced to show the defendant’s desire to engage in heterosexual sex, the motive is indistinguishable from predisposition — for such evidence to be relevant, the jurors must infer the defendant’s general sexual desire from the prior bad acts, and then infer that he acted in conformity with that desire and committed the charged sexual offense. As a rule, it is improper to offer prior instances of the same offense [against persons other than the victim in the instant case] to show motive, since such acts are relevant only by relying on the improper inference that the defendant has a propensity to engage in that conduct.
Id. (internal quotation marks omitted). We held in Harrison that it was error to allow the evidence of Harrison’s prior sexually-oriented remarks to teenaged girls other than the second-degree-child-sexual abuse complainant as evidence that Harrison “was motivated to engage the complainant ... in a sexual relationship,” because the evidence invited the jury to infer that Harrison “had a sexual interest in teenage girls, and ... that he acted in conformity with that bad character trait by committing the charged offenses against” the complainant. Id. at 175, 180. We could “not perceive how else the jury could have used the evidence,” and we concluded that the court’s instruction that the jury could not consider the evidence “to conclude that the defendant has a bad character or ... criminal personality” was “not curative.” Id. at 176, 180.
We similarly conclude here that the trial court’s “motive” instruction would have al
Through a limiting instruction, the court also told jurors that they could not use the other-crimes evidence to conclude that appellant has a “bad character” or a “criminal personality.” Although the court gave that limiting instruction immediately after giving the “motive and/or ... intent” instruction, appellant argues that, as in Harrison, the “limiting instruction did not cure the harm,” because the court “failed to provide the jury any guidance on how it could draw the link between the assault on [J.W.] and the alleged assault on [J.S.] without resorting to an impermissible propensity inference.” We likewise are not persuaded that the limiting instruction,
C. Whether J.W.’s testimony was substantially more prejudicial than probative
Upon the foregoing analysis, our conclusion is that the trial court admitted J.W.’s testimony for both a permissible purpose and for a purpose that, as described to jurors, was impermissible. Our remaining task is to determine whether, in this circumstance, “the prejudicial impact of the evidence ‘substantially’ outweigh[ed] its probative value.” Bacchus,
We were presented with a similar situation in Calaway. We noted in that case that the trial court not only had properly admitted evidence of a prior rape for the purposes of proving intent and identity, but also had erroneously admitted the evidence for the purpose of proving Cala-way’s “predisposition to gratify [his] sexual desires” with the complainant.
In ruling that J.W.’s testimony would be admitted to establish both intent and motive, the trial court “conclude[d] specifically ... that the prejudicial effect does not substantially outweigh the probative value.” As we have repeatedly recognized, “the evaluation and weighing of evidence for ... potential prejudice is quintessential a discretionary function of the trial court,” to whose decisions “we owe a great degree of deference.” Johnson v. United States,
“In deciding whether the danger of unfair prejudice and the like substantially outweighs ” probative value, “a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which
Regarding the efficacy of alternative proof, the evidence in this case pertinent to whether appellant intended to engage in sexual acts with J.S. by force was essentially J.S.’s word that he did so versus Armstrong’s testimony that J.S. admitted fabricating a claim of sexual assault. Although J.S. complained of some pain after the incident she alleged, she had no “obvious cuts or tears,” and (as appellant argues) witnesses who observed her demeanor after the incident relied on her “subjective statements and representations.” There was no more efficacious proof of appellant’s intent in his encounter with J.S. than J.W.’s testimony describing appellant’s similar encounter with her, which ended with appellant’s sexually assaulting her.
Finally, we consider whether the admission of J.W.’s testimony would likely have roused jurors to “overmastering hostility.” Johnson,
The remaining consideration is whether jurors’ (possible) consideration of J.W.’s testimony as evidence of appellant’s motive would likely have led jurors to have “overmastering hostility” against appellant. It
V. Conclusion
For the foregoing reasons, the judgment of conviction is
Affirmed.
Notes
. Our case law has used the terms “first-degree sexual abuse” and “rape" interchangeably. See Bryant v. United States,
. J.S., who agreed that she is a "transgender,” testified that she is "anatomically a male,” but "psychologically” is a woman.
. J.S. testified that no cars drove by and no other people were on the street.
. During cross-examination, defense counsel highlighted that J.S. told police that the gun with which appellant threatened her was silver, while she told the grand jury that it was black.
.During cross-examination, defense counsel elicited J.S.’s acknowledgment that she told the grand jury that she "gave [appellant] a hug” after the incident and "held him real tight” "just to calm him down,” because he was "so scared” and "looked like he was worried that [she] would probably call the police....”
. Antonyo Hailstock, J.S.’s "godfather,” similarly described changes in J.S.'s demeanor after the incident, testifying that J.S. (who moved into Hailstock’s house after she was released from the hospital) would wake up in the middle of the night screaming or crying, initially would not go outside, and, when she did return to work, was "really nervous" about walking alone to or from the bus stop. Hailstock would have to meet J.S. at the bus stop when she was on her way home or talk to her on her cell phone while she was walking from the bus stop to the house. J.S. also cut her hair, began wearing baggy clothing, and no longer dressed as a female.
. Suzanne Rotolo, a SANE nurse for 34 years (who did not examine J.S. but testified as an expert) told the jury that in her experience, patients complain of pain during the sexual-assault-examination procedure "only if there has been an injury.” Rotolo also testified that the majority of patients who report anal rape "have no injuries whatsoever.”
. During cross-examination, defense counsel posed questions suggesting that J.W. believed her boyfriend had "possibly cheat[ed] on her” and that she had had consensual sex with appellant, with whom the boyfriend did not get along, to get back at the boyfriend.
. Defense counsel elicited from Douglas on cross-examination that she observed during the sexual-assault examination that J.S. had a "small scrotal sack” and that J.S. reported that she was taking hormones, testimony that apparently was intended to explain why, according to the defense, appellant had not noticed J.S.’s male gender during the anal-sex encounter. As appellant puts it in his brief, defense counsel "conceded that [appellant] took [J.S.’s] cell phone 'out of spite’ after she revealed to him that she was actually a man.”
.Armstrong also testified that she was "friends” with appellant, whom she knew because he had dated her sister.
. See, e.g., Fed.R.Evid. 413(a) (providing that "[i]n a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.”); see also United States v. Horn,
. See Thompson,
. Here, the court appears to have used the term ''motive” as synonymous with "intent” (although the court later observed that "motive is somewhat different” from “intent” and that "frankly, we could sit around all day long parsing the differences between the two”).
. Defense counsel protested that the government’s argument was "essentially that because Mr. Legette did this in the past that it is more likely that he did this in the current charged case.” Counsel argued that the evidence would be propensity evidence because "[t]here’s no other reason for it to come in.” Disagreeing, the court responded:
[ I]t’s the force and the absence of consent that is the relevant issue here, and ... the Government, I assume is going to be arguing that the prior event is probative of the defendant’s state of mind, that is, his understanding and knowledge that there was no consent, and the victim’s state of mind, in other words, that there was no consent.
. The court cited this court’s opinions in Crisafi v. United States,
. Cf. Thompson,
. Cf. Robles v. United States,
.See D.C.Code § 22-3002(a) (2001). In relevant part, § 22-3002(a) provides that a person commits first-degree sexual abuse if he "engages in or causes another person to engage in or submit to a sexual act in the following manner: (l)[b]y using force against that other person; [or] (2)[b]y threatening or placing that other person in reasonable fear that any person will be subjected to death, bodily injury, or kidnapping[.]”
. The trial court instructed the jury that to prove appellant’s guilt of first-degree sexual abuse, the government was required to prove that J.S. "did not voluntarily consent to the sexual act." "Consent by the victim is a defense to a prosecution under § [] 22-3002....” D.C.Code § 22-3007 (2001).
. See also Hatch v. United States,
. Cf. State v. Oliver,
Appellant argues that his intent was not in issue because if the jury believed he threatened J.S. with a gun, "the only reasonable inference was that he intended to force her to submit to sex.” But, of course, the jury was not required to believe that appellant acted by threat in his encounter with J.S.; the government’s burden was to prove that allegation beyond a reasonable doubt.
.We are satisfied that the holdings described in the text above were not dictum. See United States v. Title Ins. & Trust Co.,
. It was only in Crisafi that we observed that the "unusual factual similarities between the two offenses” "present[ed] virtually a textbook illustration of a signature crime,” making the offenses mutually admissible to show identity as well as intent.
. As to Dyson, in which the charges — two counts of first-degree sexual abuse — did not involve a specific-intent crime, appellant dismisses the opinion as having "merely cit[ed] Crisafi without any analysis.”
. Roper,
. Appellant contends that our recent opinion in Robles forecloses that conclusion. However, as we specifically stated in Robles, we had no occasion in that case "to consider the ... admissibility under Drew of separate forcible acts against different complainants.”
. We say "if credited” because the jury did not learn that a trier of fact had found appellant guilty beyond a reasonable doubt of the first-degree sexual abuse of J.W. (or that appellant unsuccessfully asserted a consent defense in that case as well). As the trial court instructed, the jury had to decide whether to credit J.W.’s testimony, which the defense argued was fabricated and sought to impeach in numerous ways.
. ”[T]he ultimate inference generated by other crimes evidence must always be the defendant's greater likelihood of guilt on a contested issue in the case.” Ali v. United States,
. Appellant argues that the prosecution did not "articulate a theory by which evidence of the assault on [J.W.] in 2000 would elucidate [appellant’s] ... intent with respect to [J.S.] in 2006.” Whether or not that is so, the trial court understood the logical relevance and probative value of J.W.'s testimony on the issue of intent. The court grasped the logic that in "approaching [J.S.] at the bus stop” and similarly "approaching [J.W.] trying to hail a cab ... [appellant’s intent on both occasions] was not just to make conversation with a pretty woman, ... but ... to target a victim of sexual abuse.”
. While the trial court found the accounts "quite, quite similar,” it is worth noting that "courts have repeatedly held that the degree of similarity required to establish identity based on modus operandi is greater than the degree required to negate innocent intent.” Diffee v. State,
. See, e.g., Crisafi,
. "While motive is the inducement to do some act, intent is the mental resolution or determination to do it.” Black’s Law Dictionary 825 (8th ed.2004).
. During the court's colloquy with counsel about jury instructions, the court told defense counsel, “in drafting the instructions [regarding the permissible use of J.W.'s testimony], I had it a[s] motive and intent.” The court acknowledged, however, that appellant (having failed to persuade the court that J.W.’s testimony should not be admitted at all) "did request that the other crimes instruction mention only intent.” The court’s comment appears to have been a reference to appellant's arguments, set out in his written opposition to the government’s notice of its intent to introduce other-crimes evidence, that the motive and identity exceptions "are distinct and merit consideration separately,” and that the admissibility of other-crimes evidence under the motive exception "depends on the identity of the parties, i.e., on the fact that the defendant had a motive to harm this particular victim, with whom he already had an established relationship.” During the colloquy with the court, appellant's counsel again objected that this court’s "case law on motive as an exception to other crimes is very specific” and, in particular, "requires specificity with regards to a defendant and a complainant.” The trial court disagreed, stating that the government could argue that appellant's "actions, even before he ever had contact with the particular victim in this case, were evidence of his motive” and that the court would give the instruction it had drafted. On this record, we are satisfied that appellant preserved an objection that the court’s instruction erroneously permitted the jury to consider the evidence about appellant's sexual assault of J.W. as "motive” evidence alone.
. Notably, we reached that conclusion even before we had adopted, in Johnson v. United States,
. In Calaway, we concluded that the admission of other crimes evidence was not reversible error even though there was other efficacious evidence of Calaway’s intent to commit sexual assault, including evidence that Calaway had "fresh scratches on his neck” after the charged offense and certain statements Calaway had made to police that undermined the "reasonable possibility that [certain] facts could be explained innocently.”
. United States v. Love,
. United States v. Stewart,
. Harrison,
. See also id. at 764,