People v. Salazar

2012 CO 20, 272 P.3d 1067, 2012 WL 907779
CourtSupreme Court of Colorado
DecidedMarch 19, 2012
DocketNo. 11SA305
StatusPublished
Cited by372 cases

This text of 2012 CO 20 (People v. Salazar) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Salazar, 2012 CO 20, 272 P.3d 1067, 2012 WL 907779 (Colo. 2012).

Opinions

Justice BOATRIGHT

delivered the Opinion of the Court.

T1 In this original proceeding under C.AR. 21, we consider the trial court's admissibility determination as to testimony regarding specific instances of a purported alternative suspect's prior sexual conduct, which the defendant sought to introduce to challenge the alleged victim's identification in a case alleging sexual assault on a child. The People petitioned for relief from the trial court's order finding the evidence admissible. We issued a rule to show cause. Because the trial court abused its discretion when it determined that the probative value of the alleged prior sexual conduct was not substantially outweighed by the danger of such evidence to confuse the issues and mislead the jury, we make the rule absolute and remand the case to the trial court for further proceedings consistent with this opinion.

I. Facts and Procedural History

12 The prosecution has charged Yrineo Salazar with sexual assault on a child, in violation of section 18-3-405(1), C.R.S (2011), and sexual assault on a child pattern of abuse, in violation of section 18-3-405(2)(d), C.R.S. (2011). The charges arise out of allegations by ML., who was eight years old at the time, that the defendant sexually assaulted her when she stayed at her maternal grandparents' house. The defendant is M.L.'s uncle by marriage to M.L.'s maternal aunt, T.S. The defendant, T.S., and their children, were visiting from out-of-state and also staying at the grandparents' house.1

13 ML. first disclosed sexual abuse to a Safe Touch educator at her school following a presentation that included "good touch/bad [1069]*1069touch" scenarios. Using age appropriate language, she told the educator that someone had touched her vagina under her underwear. She said she did not tell anyone because it was her "mom's brother" and she was afraid she would never see that part of the family again.

T4 After school that day, ML. described several incidents to her mother. The mother recounted that M.L. told her that "T. Junior" (the defendant) had touched her. ML. said she did not tell anyone because it was "T. Junior" and she did not want anyone, including her aunt, to be mad at her or not believe her. ML. told her mother that she was sleeping in the living room at her grandparents' house with her cousin. They had left the television on. She said she felt something weird and she opened her eyes a little; she could see a figure, but could not see his face clearly. She did see a grey shirt and red shorts. ML. told her mother that "T. Junior" touched her "in her middle parts" with his fingers and he also touched her "butt." She knew it was the defendant be-ecause he was the only tall man in the house. ML. also stated that he did this on two occasions, and almost on a third; on the third occasion, a baby in the house started erying and ML. woke up and saw the defendant sitting in a chair in the living room. ML. indicated that she clearly saw the defendant on at least one occasion but the mother's account is inconsistent as to whether ML. saw the defendant on the second occasion when she woke up to someone touching her, or on the third occasion when the baby woke her up.

15 According to M.L.'s mother, ML. wears prescription glasses for distance but ordinarily does not wear them while she sleeps. ML .'s mother did not know if M.L. was wearing her glasses on the nights of the alleged incidents, The mother indicated that, around this time, M.L. was spending two or three nights a week at her grandparents' house so that they could take her to school in the morning.

16 ML. also underwent a forensic interview. In this interview she described three incidents. With regard to the first incident, M.L. stated that she had been watching television when she fell asleep on the air mattress in her maternal grandparents' living room. She described being digitally anally and vaginally penetrated. She described the assailant's clothing as a grey shirt and red shorts. ML. stated that she was informed by her grandmother that the defendant had turned the television off because the grandmother went into the living room and it was off. ML. did not know how the grandmother knew it was the defendant who turned the television off.

T7 As to the second incident, M.L. described a different night when she was vaginally penetrated but not anally penetrated. She stated that she saw the defendant's face clearly. ML. also described a third incident on yet a different night when someone attempted to remove her shorts. She was not touched but awoke to find the defendant sitting in a chair in the living room.

18 Prior to trial, the defendant filed a motion to pieree the rape shield statute and noticed his intent to introduce evidence regarding specific instances of a witness's prior sexual conduct. In his motion, the defendant asserted that A.G., M.L.'s maternal grandfather, had sexually abused his daughter, ML.'s aunt TS., in a similar fashion from the ages of approximately four to nine years old. The defendant further claimed that A.G. was present in the house at the time of the incidents and is similar in appearance to the defendant. The defendant argued that the evidence was relevant because A.G. had committed similar offenses, had both motive and opportunity to commit the offense in this case, and identity was an issue.

19 The trial court held a hearing at which T.S. testified to sexual abuse she allegedly suffered as a child. She stated that she was subjected to anal and vaginal intercourse and digital vaginal penetration. T.S. did not recall digital anal penetration. She identified A.G. as the perpetrator. T.S. indicated that when she was sixteen she told her mother about the abuse and confronted her father. There is no evidence that charges were ever brought against A.G. At the conclusion of the hearing, the court found T.S. to be credible. The court identified two issues in the defendant's motion: (1) whether the defendant [1070]*1070would be permitted to introduce evidence of an alternate suspect, namely A.G.; and (2) whether evidence of A.G.'s alleged prior sexual conduct would be admissible pursuant to the rape shield statute, section 18-8-407, C.R.S. (2011). The trial court ruled that the evidence was admissible.

T10 Although M.L. identified the defendant as the perpetrator, the trial court determined that the perpetrator's identity was at issue because, based on the totality of the cireumstances, the jury could infer that M.L. misidentified the defendant. In its ruling, the court noted the following cirenmstances relating to M.L.'s identification: (1) inconsistencies between ML .'s disclosures to her mother and during the forensic interview; (2) that M.L. was not wearing her glasses during the incidents; (8) that it was dark except for limited ambient light; (4) that ML. initially disclosed observing only a grey shirt and later disclosed observing red shorts; (5) that the defendant intended to introduce evidence that he was not wearing a grey shirt on the night of the allegations, but rather was wearing a black shirt; (6) that the maternal grandmother told ML. that the defendant turned off the television, inferentially influencing M.L.'s ability to accurately recall; (7) that ML. was inconsistent regarding her ability to observe the defendant during the first incident; and (8) that ML. was inconsistent with regard to where and when she observed the defendant sitting in a chair. Based on these circumstances, the court concluded that the jury could infer that M.L.

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Cite This Page — Counsel Stack

Bluebook (online)
2012 CO 20, 272 P.3d 1067, 2012 WL 907779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-salazar-colo-2012.