P. v. Rowe

Filed 7/27/06 P. v. Rowe CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

Defendant Ray Rowe was convicted by a jury of three counts of committing a lewd act upon a child under 14 years of age, for sexually molesting his then six‑year‑old stepdaughter. Defendant raises two arguments on appeal.

First, defendant argues the trial court abused its discretion by permitting three women to testify he molested them when they were between the ages of 8 and 13. We conclude that, under Evidence Code section 1108 and the balancing test of section 352, the testimony was more probative than prejudicial, and the trial court did not abuse its discretion in permitting those witnesses to testify.

Second, defendant argues the trial court abused its discretion by refusing to permit defense witnesses to testify that the eyewitnesses to the acts of abuse against defendant's stepdaughter had a reputation for lying in order to get other people in trouble. We find no abuse of the court's discretion in its decision to exclude this testimony, particularly in light of the fact the court did permit those witnesses to testify, based on their own interactions with the eyewitnesses, as to their own opinions of the eyewtinesses' truth and veracity.

Finding no abuse of discretion by the trial court, we affirm the judgment of conviction against defendant.

Statement of Facts

Sexual Assault on Carolina C.

Rosemarie Rowe is the mother of four daughters – Mirella B., Elizabeth B. (Liz), Jessica B., and Carolina C. Rosemarie married defendant in November 2000. Defendant moved into the home Rosemarie shared with her daughters and her mother. In May 2004, Carolina was six years old.

Siblings Elizabeth M. (Elizabeth), Jane Dora M. (Dora), Daisy M., Beatriz M., and Luis M. lived across the street from defendant and his stepchildren. Sometime during the Memorial Day weekend in 2004, around noon, Elizabeth (then 14 years old) was on the side patio of her house when she saw defendant sitting in his car in front of his house, with one leg extended out of the driver's side door. Carolina was standing near defendant outside the car, with her back toward Elizabeth; Carolina was wearing an orange dress. Defendant â€