P. v. Smith

Filed 4/23/07 P. v. Smith CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

The 12-year-old victims allegation that her brother-in-law raped her was corroborated by forensic evidence including three acute tears in her vagina, two of which were bleeding, and DNA evidence taken from defendant Donny Deshawn Smiths penis and boxer shorts. Rejecting the defense that there had been an accidental transfer of the victims genetic material from her vagina to his penis and boxer shorts, the jury convicted defendant of two counts of forcible lewd and lascivious acts upon a child under the age of 14 (Pen. Code, 288, subd. (b)(1)) and one count of forcible rape (Pen. Code, 261, subd. (a)(2)). The Attorney General concedes the abstract of judgment must be corrected. Finding no merit to defendants claim of evidentiary errors, we will order the abstract corrected but affirm in all other respects.

FACTS

The events underlying defendants convictions took place shortly after Christmas in 2004 while the victim was temporarily residing with defendant and his wife, Stevenia, the victims half-sister. The holidays had been a turbulent time for the victim. Her mother was in jail. Her father worked out of town over the Christmas holidays and, angry that the victim had run away and been defiant, told her he was not going to buy her anything for Christmas. She spent Christmas at a friends house. By December 30 one of her half-sisters took her to Stevenias apartment, because Stevenia was strict and would not allow her to go out unsupervised.

The victim did not want to stay with Stevenia and pleaded with her father to stay at his home, which was down the street. The victims desire for release from a strict sister, suggesting a motive to fabricate a rape claim, her character for honesty, and her recent sexual history became the central themes of the defense case. The victim was an easy target in this regard. She had a reputation for lying, and she lied on the witness stand. She was a thief and a truant. She admitted she had sexual intercourse with one of her brothers friends, although she could not remember where, what position they were in, or any other pertinent details about the encounter other than that it had occurred somewhere between one and three months before the assault. She was rude to the judge, the prosecutor, defense counsel, and the court reporter, and she often repeated how the proceedings irritated her. She mocked her father and resented being forced to stay with Stevenia.

Her account of the events of December 30 was not altogether consistent. On the day of the incident, she begged her father to allow her to come home. He refused. Stevenia left for work. The victim remained at the apartment with defendant, his three children, the victims brother Baby Joe, and Baby Joes girlfriend Jackie. While Baby Joe played video games and the others watched, the victim fell asleep on the couch. Sometime later, defendant told her to move to defendants bedroom and sleep on the bed with her 10- or 11-month-old niece.

Baby Joe continued playing video games in a bedroom adjacent to defendants bedroom. The doors to the two rooms remained open. Defendant went into his room. The victims various accounts of what happened differ in material respects. When she first appeared in the room with Baby Joe and Jackie, she looked like she had just awakened and said nothing. She left the room and when she returned, she started crying. With prompting, she said defendant pulled her pants down. When Jackie called the victims father for her, the victim told him defendant raped her. Her father called 911 and took her to the hospital for a medical examination. She told her father defendant penetrated her. She told the nurse practitioner that defendants penis touched her private parts and that he was feeling on her. She told an investigator that defendant lay down next to and behind her, touched her breasts, pushed her onto her stomach, got on top of her, pulled down her pants, and penetrated her twice. She tried to resist by pushing him away with her elbows. Two weeks later, she told an interviewer she and defendant were both lying on their sides and defendant was behind her during the rape.

At trial, the victim could no longer remember whether defendant was on top of her or in what position she was when he penetrated her. She denied pushing him away with her elbows. She claimed she bore no animosity toward defendant and had referred to him as her brother. She admitted leaving the baby on the bed when she left the room after she was raped.

Neither Baby Joe nor Jackie heard any noise in defendants bedroom. Jackie told an investigator that on the night of the incident, defendant had been gone for about 15 minutes before the victim came into the room and broke down crying. At trial she said he was only gone five minutes before the victim appeared.

Though her account of the sexual assault had gaps and inconsistencies, the medical examination corroborated the victims story. During a genital examination, a pediatric nurse practitioner found three acute tears, ranging from superficial to intermediate, and two of the three lacerations were bleeding. She opined the lacerations were caused by blunt force trauma, consistent with penetration by a penis. Wiping with toilet paper would not have caused these injuries. She explained that because there was no evidence of healing, she believed the injuries had occurred within the previous 8 hours, although they could have been inflicted up to 72 hours before the examination. She found no sperm on the vaginal swabs she took during the examination.

A prosecution expert on DNA analysis examined two penile swabs taken from defendant at the jail and obtained DNA from cells that are found in body cavities such as the mouth, vagina, and male urethra. On the first swab, she obtained a full DNA profile matching defendant and a partial profile of a female. Information from six of fifteen genetic locations matched the victim exactly, and the statistical probability of such a match was one in eight billion African-Americans. The expert excluded defendants wife Stevenia as a contributor of genetic material on both swabs.

The DNA expert also tested the boxer shorts defendant was wearing when arrested. She developed a full DNA profile that matched the victim exactly and must have come from a body fluid other than saliva.

The defense expert on serology and DNA testing posited several different scenarios under which the victims genetic material could have been transferred to defendants boxer shorts and penis. As defendant summarizes on appeal, the victim could have scratched her labial area, then touched the bed with her hand, after which appellants boxer shorts could have come into contact with that spot and transferred a few [cells] onto his penis; or appellants hand could have touched [the victims] contaminated hand and then touched his own boxers and penis; and/or [the victims] genetic material on her hand could have come from wiping her nose or from her tears or saliva. He conceded, however, that the original source would have to be wet, and the transfer [from hand or vagina to bed to defendant] would have to occur within a relatively short period of time.

DISCUSSION

I. Admissibility of Hearsay Statement Regarding Defendants State of Mind

Defense counsel promised the jury in his opening statement that Baby Joe and/or Jackie would testify that just before defendant presumably went to bed, he told them he was going to make the victim sleep on the couch or across the foot of the bed. In the middle of trial the prosecutor announced he would seek to exclude defendants statements. Feeling sandbagged, the defense attorney objected vociferously but to no avail.^[1]The trial court found the statements untrustworthy and therefore inadmissible pursuant to section 1252 of the Evidence Code. Defendant renews his objection on appeal.

The decision whether trustworthiness is present requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception. Such an endeavor allows, in fact demands, the exercise of discretion. [Citation.] A reviewing court may overturn the trial courts finding regarding trustworthiness only if there is an abuse of discretion. (People v. Edwards (1991) 54 Cal.3d 787, 819-820 (Edwards).) Although the courts ruling has significant implications, particularly in the context of a defendants Sixth Amendment federal guarantee to due process, including a meaningful opportunity to present a complete defense (Crane v. Kentucky (1986) 476 U.S. 683, 690 [90 L.Ed.2d 636]), we do not find an abuse of discretion.

Neither the trial court nor the Attorney General seems to dispute the admissibility of the statements under the mental state exception to the hearsay rule embodied in section 1250 of the Evidence Code. Section 1250, however, is expressly subject to Evidence Code section 1252, which provides: Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness. Citing Edwards, the trial court found that defendant might have announced an innocent explanation to provide a plausible cover for his real intention to assault the 12-year-old victim, who lay asleep on his bed. According to the court, the statements were not admissible because defendant had a motive to deceive when he made them, and consequently, the statements were not trustworthy.

Defendant distinguishes the present case from Edwards, emphasizing that the defendant there made statements after the commission of the crime and at a point in time when he had an obvious motive to be less than truthful. Here, defendant asserts, he made the proferred statements before he entered his bedroom. He insists the courts understanding of human behavior is flawed since, in his view, it is highly unlikely he would have announced his intention to go into the room for nefarious purposes and thereafter left the door to the room open. He significantly understates the scope of the trial courts discretion and grossly overstates the scope of appellate review.

It might seem more prudent for a predator to close the door behind him, assuming he was carefully plotting his attack. But that is not to say the trial court abused its discretion by concluding that defendant, though careless in assuring his privacy, might have intended the assault before he entered the room. If so, as the court concluded, he might have announced that he was going to kick the victim out of his bed and make her sleep on the couch to give him time to assault her. The issue is not whether he executed a well-devised plan but whether he had a sufficient motive to deceive at the time he made the statements. Whether or not we agree with the trial courts assessment of the ways in which human beings actually conduct themselves in the circumstances, we cannot say the courts conclusion was unreasonable, irrational, or capricious. In the absence of an abuse of discretion, we must affirm the courts ruling, and in the absence of error, we can find no constitutional infirmity. (People v. Livaditis (1992) 2 Cal.4th 759, 780.)

II. Admissibility of False Accusation Evidence

Given the victims motive to fabricate the charges so she could go home and her reputation for lying to her father, her sisters, her brother, and her brothers girlfriend, had there been relevant nonhearsay evidence she had made prior false accusations of molestation, the evidence should have been readily admissible. (People v. Adams (1988) 198 Cal.App.3d 10, 18.) The Attorney General concedes as much. The problem here is not the law but the absence of relevant evidence.

Defendant sought to introduce evidence that the victim twice made prior false allegations of sexual abuse. However, the victim was not the source of the evidence, nor was there any documentary evidence such as school, county, or police reports. Rather, the source was the victims mother, herself a character of dubious credibility.

In a lengthy evidentiary hearing pursuant to Evidence Code section 402, the victims mother, an incarcerated lifetime drug abuser on psychotropic medication, admitted that she had told at least one of her daughters, and maybe more, that the victim had said she had been molested by her father and one of her sisters boyfriends. Under oath, she testified that in fact the victim had never made these allegations. Her mother, not the victim, made the allegations because she was high on drugs and paranoid.

The trial court nicely summed up the problem with the mothers testimony: You are attempting with this evidence to impeach [the victim] on the complete lack of credibility of her mother, who is not only the source of all these allegations, but a person who has under oath now denied completely that she ever heard such things from her daughter. Later, the court added, So the sum and substance of the, quote-unquote, false allegations come from a third party, not out of the mouth of the witness or the complaining victim. [] . . . [] Of course, the fact that weve held hearings for a day and a half on this issue involving this very convoluted road of hearsay and double hearsay and triple hearsay in an attempt to impeach someones hearsay based on another persons hearsay, in the Courts mind that is exactly what 352 is all about.

The trial court retained its traditional discretion to exclude evidence if its probative value was substantially outweighed by the probability that its admission would necessitate an undue consumption of time or create substantial danger of undue prejudice by confusing or misleading the jury. (People v. Chandler (1997) 56 Cal.App.4th 703, 711.) We can find no abuse of discretion in the courts lengthy analysis: We could do a five-day jury trial on the credibility of the hearsay statements of [the victims mother], which she has now not only denied repeatedly to investigators, but denied under oath. [] . . . [] . . . [T]his issue is summed up by [the victims sister, Carollyn] who said everybody who knows about it knows about it from the mother. [] The totality of the information in this case, the source of the information and the source of the suggestion that theres a, quote, false allegation comes from the mother. [] . . . [] Thats not something you can throw out there, hope a jury can figure out and then say yeah, at the end of the day the jury will not be confused or taken away by the mere specter of a, quote, false allegation when in this case the record is theres not only no evidence of an allegation, let alone a false one.

The court concluded: In the Courts view, weighing this as I need to do under Evidence Code Section 352, the probative value of this evidence offered by [the mother] and the impeachment of [the mother] is minimal, and it is far outweighed by the potential prejudice of the specter of a false allegation.

Defendant argues, however, that the court erred by refusing to allow him to interrogate the victim about the purported allegations during the Evidence Code section 402 hearing. He contends the evidence was relevant to her credibility and yet he was denied the opportunity to develop the relevancy of this evidence. His offer of proof, however, was deficient.

Carollyn testified that in response to her mothers concerns, she asked the victim if either their sisters boyfriend had been trying to come on to her or her father had been trying to mess with [her]. According to Carollyn, the victim did not know what Carollyn was talking about regarding her father but she did confirm that the boyfriend had tried to come on to her. The court explained its rationale for denying defendants request to interrogate the victim as follows: The most that can be said of any direct evidence out of the mouth of the victim to anyone with regard to [her sisters boyfriend] is that, quote, he was coming on to her, unquote. [] [B]ased on that most ambiguous statement, he is coming on to her, which suggests neither a molest, a touching, an improper act of any kind, you want to be able to bring this victim down here and ask her now follow-up questions regarding areas that you have no idea what the answers are, other than shes been already asked by the District Attorney if anything improper has happened, she has said no, on the bare statement of another witness that she said, quote, this person was coming on to her.

Despite our sensitivity to defendants fundamental right to due process, including his right to cross-examine a victim about prior false allegations, we must affirm the trial courts ruling. The relevancy linchpin is missing. Even if we ignore the fact that the false allegations were asserted by the victims mother, and not by the victim, and focus solely on her ambiguous response to her sisters inquiry, we fail to uncover a false allegation of molestation. Her purported statement that her sisters boyfriend had come on to her is far too ambiguous to trigger a right to examination when, in the context of these statements, there is no evidence she had falsely accused anyone of any sexual impropriety.

There is no doubt that the victims credibility was a pivotal issue at trial. And the defense, with considerable assistance from the victim herself, thrashed her credibility before the jury. We reject defendants repeated assertions that the evidentiary rulings compromised his constitutional right to present an effective defense. In fact, the exclusion of defendants hearsay statements before entering the bedroom and the double and triple hearsay of the purported false allegations would have had minimal impact on jurors who heard the testimony of a troubled and dishonest young witness but whose testimony was corroborated by convincing DNA evidence. Finding no error in the evidentiary rulings and, as a result, no infringement of defendants constitutional rights, either individually or cumulatively, we will affirm the judgment of conviction.

III. Correction of Abstract of Judgment

Defendant contends, and the Attorney General concurs, that the abstract of judgment should be corrected to reflect the imposition of a six-year middle term on count three and two consecutive two-year terms, as one-third the middle base term, on counts one and two. We agree. Since we affirm his conviction in Sacramento County Superior Court case No. 05F00051, his probation was properly revoked in Sacramento County Superior Court case No. 03F00259.

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment reflecting a six-year term on count three and two consecutive two-year terms on counts one and two, and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

RAYE , J.

We concur:

BLEASE , Acting P.J.

DAVIS , J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] Defense counsel claimed the prosecution was aware of the statements made by Baby Joe and Jackie but made no in limine motion to exclude them. In reliance on the prosecutions inaction, defense counsel promised that he would present their testimony. On appeal, defendant claims the courts error in thereafter excluding the testimony was magnified by his promise to the jury, which was reasonable under the circumstances. Because we conclude the court did not err, we need not consider the prejudicial impact of the promise.