Velez v. State

762 P.2d 1297, 1988 Alas. App. LEXIS 100, 1988 WL 108360

• Court: Court of Appeals of Alaska
• Decided: October 7, 1988
• Docket: A-1642
• Status: Published

Opinions

OPINION

SINGLETON, Judge.

Santiago Velez was charged in separate counts of an indictment with one count of sexual assault in the first degree, AS 11.-41.410(a)(1), and one count of attempted sexual assault in the first degree, AS 11.-31.100(a) and AS 11.41.410(a)(1). Each count involved a different incident and a different victim. He unsuccessfully sought severance of the two counts for trial and was convicted on both counts. Alaska R.Crim.P. 8, 14. He appeals, arguing that the trial court erred in denying his motions for a continuance and a severance, and that the trial court abused its discretion in admitting, over his objection, evidence of pri- or uncharged sexual assaults.

Velez argues that we should apply our recent decision in Johnson v. State, 730 P.2d 175 (Alaska App.1986), in which we granted pretrial review of an order denying severance and reversed, concluding that automatic severance should be ordered in any case upon timely request by the defendant where counts are joined solely on the basis that they are of the same or similar character. See also Stevens v. State, 582 P.2d 621 (Alaska 1978). The state counters that Johnson was decided after Velez’s trial and should not be given retroactive effect. See Farleigh v. Anchorage, 728 P.2d 637 (Alaska 1986) (discussing circumstances under which a judicial decision should be given retroactive effect). The state argues that we should follow our prior decisions in which we have refused to find prejudicial error in denial of severance where evidence from each of the cases joined would have been cross-admissible. See Montes v. State, 669 P.2d 961, 966 (Alaska App.1983); Nix v. State, 653 P.2d 1093, 1095-96 & n. 3 (Alaska App.1982); Davidson v. State, 642 P.2d 1383, 1390 n. 8 (Alaska App.1982).

We conclude that the evidence regarding the two charges joined in this case was not cross-admissible. Velez therefore suffered prejudicial error without regard to the rule of Johnson. Accordingly, we reverse Velez’s convictions and remand this case for a new trial.¹

FACTS

A number of women have reported that Velez assaulted them. Evidence of three incidents was presented at trial: a sexual assault on C.S. on October 24, 1985, an attempted sexual assault on G.J. on November 14, 1985, and a sexual assault on S.F. on November 23, 1985. The incidents with G.J. and S.F. were charged in the indictment, and the incident with C.S. was introduced in evidence as a prior bad act.

S.F. testified that she met Velez at a bar in Anchorage on November 19, 1985. During the evening she and Velez talked and danced. She mentioned that she had a car that needed painting, and Velez told her that he worked at a body shop and would be happy to give her an estimate on repairs if she would bring her car to the shop where he worked. Velez called S.F. a couple of nights later and asked her to go out with him. During this conversation, S.F. mentioned that one of her headlights was out, and Velez suggested that she bring her car to the shop the next day and he would fix it.

On November 23, S.F. took her car to the body shop where Velez worked, and Velez completed the repairs by late afternoon. Velez, S.F., and several other individuals then remained in the waiting room of the auto shop drinking beer and smoking marijuana. After everyone had left except for S.F. and Velez, he pushed her down onto the couch and removed her pants and underpants. As she continued to struggle, Velez became more aggressive and forced S.F. to have intercourse with him. When he got up from the couch she attempted to get her clothing. He then wrestled her to the ground and assaulted her again. After this assault, Velez let S.F. leave. Later, after returning to her home, S.F. went to the hospital for an examination.

G.J. became acquainted with Velez at an Anchorage bar where she worked part-time as a nude dancer. Velez worked in an automobile body shop nearby and was a regular lunch-time customer at the bar.' Velez visited G.J. and her boyfriend at GJ.’s trailer on several occasions and helped G.J.’s boyfriend work on his truck.

On November 14, 1985, G.J. went to the body shop where Velez worked to pick up a coat she had lent him while he was working on her boyfriend’s truck. Velez drove G.J. home, stopping on the way to purchase blackberry brandy and beer. When they arrived at G.J.’s trailer, G.J. invited Velez to come in for a drink. After drinking the brandy and beer, Velez asked G.J. to perform a striptease dance for him. She refused to dance. Velez made several suggestive comments about wanting her body, referring to sexual intercourse. When she requested that he leave, he threw her down on the couch. Velez held her down with his knees and attempted to unbutton her shirt. G.J. screamed and told Velez to get out and leave her alone, but Velez struck her in the face and they continued to struggle. G.J. managed to get away and picked up the telephone, telling Velez she was going to call the police. After a few minutes, Velez left and, shortly thereafter, G.J. called the police.

Velez was charged with sexually assaulting S.F. and attempting to sexually assault G.J. These charges were joined for trial.

In addition, the jury heard from Velez’s former girlfriend, C.S., who testified as a rebuttal witness. C.S. testified that she met Velez in September 1985, at her place of employment. She indicated that he was friendly and would often come into the liquor store where she worked. Initially, she refused his invitations to go out, but eventually she succumbed and went out with him. She said he was a perfect gentleman during their first few dates.

On October 24, 1985, approximately three weeks before the incident with G.J., Velez and C.S. spent the evening drinking with several other people at the body shop where Velez worked. Velez was drinking blackberry brandy and beer. Later that evening, Velez and C.S. drove to his apartment and he invited her in for a drink. According to C.S., when they were in his apartment Velez became aggressive and tried to kiss her. She told him that she did not want to have sex with him. They struggled, and C.S. began to cry. Velez pulled C.S. down on the floor and forced her to have sexual intercourse. C.S. initially obtained a restraining order against Velez, but allowed it to be dismissed. She testified that she did not follow through with the restraining order or file formal charges against Velez because she was afraid of him.

DISCUSSION

Velez contends that the trial court erred in denying his motion for a severance. He argues that the testimony of G.J. would not otherwise have been admissible in a trial of S.F.’s charges. He further argues that C.S.’s testimony should not have been admitted in trials of either G.J.’s charges or S.F.’s charges. See A.R.E. 404(b),² 403.³

The appellate courts of Alaska have considered the admissibility, in sexual assault cases, of evidence that the accused sexually assaulted or attempted to sexually assault the victim or another person on other occasions in a number of cases. See Burke v. State, 624 P.2d 1240, 1246-51 (Alaska 1980); Freeman v. State, 486 P.2d 967, 977-78 (Alaska 1971); Soper v. State, 731 P.2d 587, 589-91 (Alaska App.1987); Johnson v. State, 730 P.2d 175 (Alaska App.1986); Johnson v. State, 727 P.2d 1062 (Alaska App.1986); Bolden v. State, 720 P.2d 957, 960-61 (Alaska App.1986); Pletnikoff v. State, 719 P.2d 1039 (Alaska App.1986); Oswald v. State, 715 P.2d 276 (Alaska App.1986); Moor v. State, 709 P.2d 498 (Alaska App.1985).

In Lerchenstein v. State, 697 P.2d 312 (Alaska App.1985), aff'd, 726 P.2d 546 (Alaska 1986), we applied a two-step analysis to determine whether prior bad acts evidence is admissible under Rule 404(b). First, the court must determine if the evidence sought to be admitted has relevance apart from showing the character of the defendant in order to show the defendant’s propensity to commit the crime in question. When evidence is offered solely to show propensity, it is inadmissible.⁴ If the court determines that the evidence has some relevance apart from propensity, then it must determine if the nonpropensity relevance outweighs the prejudicial impact of the evidence under Rule 403. Of course, if there is no genuine nonpropensity relevance, the balancing step is never reached. 697 P.2d at 315-16.⁵

Alaska courts have frequently permitted the state to introduce evidence of other sexual assaults to show modus oper-andi, and thereby identify the defendant as the perpetrator of the offense when identity was a disputed issue. See Coleman v. State, 621 P.2d 869, 874-76 (Alaska 1980), cert. denied, 454 U.S. 1090, 102 S.Ct. 653, 70 L.Ed.2d 628 (1981); Stevens v. State, 582 P.2d 621, 628-29 (Alaska 1978); Nix v. State, 653 P.2d 1093, 1096-1100 (Alaska App.1982). Identity is not an issue in this ease because G.J. and S.F. both knew Velez. Therefore, proof of modus operandi is irrelevant.

In Burke, 624 P.2d at 1249-50, the supreme court recognized evidence of a “lewd disposition,” i.e., propensity to engage in unlawful sexual activity, as a limited exception to Rule 404(b) akin to proof of motive. See Patterson v. State, 732 P.2d 1102, 1104 (Alaska App.1987). The lewd disposition exception was limited to those cases in which the prior sexual acts involved the same victim as part of an ongoing relationship consisting of several separate sexual acts, and in which evidence of the entire relationship was necessary in order to place the alleged incident in context and explain the victim’s actions. Burke, 624 P.2d at. 1249-50. The supreme court cautioned, however, that the prejudicial effect of such testimony is substantial, and before admitting it the trial court must carefully weigh the testimony’s probative value against its prejudicial effect. Id. at 1250-51.

In Soper, 781 P.2d at 590-91, we extended this lewd disposition exception to include sexual assaults on members of an immediate family under circumstances that would not fall within a “motive” exception.⁶ In Bolden and Moor we were asked to extend this exception to testimony regarding sexual conduct with persons other than the victim and members of her immediate family who, nevertheless, had substantial similarities to the victim, e.g., similar ages or similar relationships to the accused. We declined to do so. Bolden, 720 P.2d at 960; Moor, 709 P.2d at 506. In Bolden, Pletni-koff, and Moor we also rejected the state’s arguments that such evidence was admissible based on its relevance to show common scheme or plan, motive,⁷ or to corroborate the prosecuting witness. See, e.g., Pletni-koff, 719 P.2d at 1042-44. I adhere to those rulings.

The state, in partial reliance on Davis v. State, 635 P.2d 481 (Alaska App.1981), asks that we recognize a general exception to Rule 404(b) to cover situations in which a defendant concedes genital intercourse, but claims that the alleged victim consented. Such an exception is particularly necessary, the state urges, in cases of date rape in which the victim’s testimony is uncorroborated, and the defendant can show that the relationship with the victim was previously friendly and may even have involved prior corroborated or conceded instances of consensual sexual activity. When the incident occurs in privacy and the victim is coerced by the defendant’s greater strength or unconsummated threats of violence, the jury may have no basis for determining which version of the incident is more worthy of belief. If the state is precluded from corroborating the victim’s testimony by showing that the defendant consistently forces sexual demands on acquaintances, the state apparently concludes that many rapists will be acquitted and may even be encouraged to force their intentions on other social acquaintances in the future. Similar concerns led the supreme court to create an exception to Rule 404(b) for assaults on the same victim in Burke, which we extended to members of the immediate family in Soper.8

We addressed this issue in Davis and concluded in part that, because the defendant placed his intent in issue, the prosecution was justified in offering evidence of other sexual assaults to contradict the defendant’s claim that his alleged victim consented. 635 P.2d at 485. Davis, however, is distinguishable on its facts from this ease. Davis was charged with kidnapping as well as sexual assault. Davis and his companion came across the complaining witness, who was having difficulty with her car, and offered to give her a ride. Once inside the car, Davis made sexual overtures to the victim and ignored her resistance. Id. at 483. Ultimately, she was taken to an isolated spot and sexually assaulted. Id. at 484. In order to prove kidnapping under its theory of the case, the state was compelled to show that Davis restrained his victim, intending to sexually assault her. Id. at 483 n. 2. Evidence of other occasions in which Davis and the same companion offered women rides and Davis then sexually assaulted them provided some evidence that Davis formed an intent to sexually assault his victim prior to restraining her, satisfying part of the state’s burden to prove kidnapping. In addition, it is possible that Davis and his companion had a pre-existing plan to pick up hitchhikers and other vulnerable young women and sexually assault them, which might qualify for admission as a common scheme or plan. Compare Davis, 635 P.2d at 485 n. 3 with Bolden, 720 P.2d at 961 n. 2 and Oswald, 715 P.2d at 279-80 & n. 2.

Nevertheless, to the extent that Davis stands for the proposition that evidence of all prior sexual assaults by a defendant on similarly situated victims becomes admissible any time the defendant concedes sexual intercourse and argues that the complaining witness consented, I believe Davis goes too far, and I would specifically disapprove that holding.

Sexual assault in the first degree, based on the theory that one adult coerced another adult into sexual intercourse, does not require any showing of sexual motive or interest beyond the act itself. Moor, 709 n. 8. “In order to prove a violation of AS 11.41.410(a)(1) [sexual assault in the first degree], the state must prove that the defendant knowingly engaged in sexual intercourse and recklessly disregarded his victim’s lack of consent.” Reynolds v. State, 664 P.2d 621, 625 (Alaska App.1983). In order to determine precisely what is at issue when it is contended that sexual intercourse took place “without consent,” we should look to the defining statute, AS 11.41.470, which provides in pertinent part:

Definitions. For purposes of sections AS 11.41.410-11.41.470 [sexual offenses], unless the context requires otherwise,

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(3) “without consent” means that a person

(A) with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of imminent death, imminent physical injury, or imminent kidnapping to be inflicted on anyone; or

(B) is incapacitated as a result of an act by the defendant.

Alaska Statute 11.81.900(b) defines “force” and “physical injury” as follows:

(22) “Force” means any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement; “force” includes deadly and nondeadly force....

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(40) “Physical injury” means a physical pain or an impairment of physical condition....

The code does not further define “coerced,” and we must therefore look to general usage for its meaning.' AS 01.10.-040. “Coerce” means “to compel by threats or force,” Oxford American Dictionary 120 (1980), and “compel” means “to use force or influence to cause (a person) to do something, to allow no choice of action_ A person compelled to do something is forced to act against his or her will.” Id. at 128.

Whenever consent is the sole issue, an act of sexual intercourse or penetration is presumed and three related questions are presented. First, what was the attitude or motivation of the complaining witness regarding the act of intercourse and, more particularly, was the alleged victim induced to assent by fear of one of the specific results set out in the statute, i.e., fear of violence, kidnapping, or injury to property? Second, what conduct did the defendant engage in to coerce the alleged victim? Third, did the defendant consciously disregard a substantial risk that the alleged victim failed to consent? Reynolds, 664 P.2d at 625.

When we examine these three issues, it is clear that the defendant’s prior conduct is irrelevant to the first issue. It is relevant to the second issue to the limited extent that the state can prove that the defendant has a disposition or propensity to engage in forcible sexual relations and acted in accordance with that disposition or propensity by assaulting the complaining witness. The defendant’s prior conduct is only marginally relevant to the third issue.

As to the first issue, the defendant’s past conduct is irrelevant to the victim’s state of mind unless the victim is aware of it. In the present case, it is not alleged that G.J. was aware of Velez’s actions with S.F., or S.F. aware of Velez’s actions with G.J.⁹ Because a person’s state of mind cannot be affected by matters of which they are in ignorance, it necessarily follows that Velez’s conduct with S.F. was not relevant to show G.J.’s state of mind, and vice versa.

The second issue turns on whether, and to what extent, Velez engaged in coercive behavior or engaged in conduct likely to induce fear in his victim if she denied his request for sexual intercourse. Velez’s activities with other women were marginally relevant to show how he conducted himself with each of his victims, and to that extent corroborated their testimony about his conduct with them, but this is pure propensity evidence, absolutely forbidden by Evidence Rule 404(b). Thus, the state cannot offer evidence that Velez coerced S.F. to support an inference that he had a disposition to force his affections on unwilling women, and then infer from that disposition that he forced his affections on G.J. Despite its relevance, this evidence is absolutely precluded. Lerchenstein, 697 P.2d at 315-16.

The final issue concerns the defendant’s mens rea. In context, this issue requires a determination of whether Velez’s actions with G.J. were relevant to show that he was aware of the substantial risk that S.F. did not consent to sexual intercourse.¹⁰ Arguably, Velez’s past experiences with women who charged him with assault and battery and swore out restraining orders against him, particularly if the experiences were close in time to the charged offenses, might alert him to the risk that his dating behavior, if consistently and habitually pursued, might result in sexual intercourse with nonconsenting partners.¹¹ The evidence in this case might therefore minimally satisfy the first prong of the Lerchen-stein test and take the case out of Evidence Rule 404(b).

I believe, however, that the probative value of this evidence to establish mens rea is more than outweighed by the potential for prejudice. A jury faced with multiple accusers may not be convinced that any one accuser is accurately describing his or her past experience, but may, nevertheless, weigh the numerous accusers’ testimonies and conclude that the defendant deserves punishment. Consequently, the evidence cannot survive the balancing test required under Alaska Evidence Rule 403. In any event, S.F.’s reactions to Velez could not have put him on notice of GJ.’s lack of consent, because Velez encountered S.F. on November 23, although he allegedly assaulted G.J. nine days earlier on November 14, 1986.

In order to justify denial of severance, S.F.’s and G.J.’s experiences with Velez must be cross-admissible. Because the foregoing analysis establishes that G.J.’s experiences were not admissible to prove S.F.’s complaints, severance was incorrectly denied even if S.F.’s experience was admissible to prove G.J.’s accusation. In reaching this conclusion, I recognize that Velez was charged with attempted sexual assault of G.J., not with sexual assault. The state was therefore under an obligation to prove Velez’s specific intent, i.e., that his motive or goal with regard to his restraint of G.J. was to sexually assault her.

Arguably, under Davis, Velez’s experiences with other women might have been relevant to prove intent if there was any doubt regarding his intentions. When the evidence establishes an assault and battery, but the assailant’s motive is unclear, evidence of prior acts may be relevant to show the assailant’s intentions regarding the assault on the occasion in question. GJ.’s testimony, however, was unequivocal regarding whether Velez’s motivations were sexual. She testified that he asked her to do a striptease for him, that he put his arm around her, and that he told her that he had not had a woman in a while and wanted someone to hold him. Velez told her, “Come on, I want it and you want it too.” He pushed her down on the couch, laid on top of her, and attempted to separate her legs with his knees. Under the circumstances, if G.J. was telling the truth, Velez’s intentions were blatantly sexual, and it was unnecessary to offer other evidence to clarify his intentions when he grabbed her.¹² To use the other evidence to corroborate her testimony that he violently assaulted her, is simply to rely on propensity evidence in violation of Ler-chenstein.

One other issue may come up on retrial and should be addressed here. G.J. was permitted to testify that Velez told her about an incident involving his ex-girlfriend, C.S., in which Velez struck C.S. and forced himself upon her. She said he told her “he wanted her and he knew that she wanted him too.” Velez allegedly told G.J. that his ex-girlfriend had accused him of rape and obtained a restraining order against him. These comments and Velez’s aggressive behavior frightened G.J. This evidence was offered to explain G.J.’s motivation and fear of the defendant.

Although resistance is no longer required to prove sexual assault, many jurors might disbelieve a nonresisting witness’ testimony that sexual intercourse was non-consensual. Thus, the evidence of Velez’s statements to G.J. regarding C.S.’s experiences might be admissible to show that G.J. was frightened and would explain her lack of resistance and why she might engage in sexual relations without consenting to them.¹³ As we stressed in Moor, however, evidence of other crimes or other bad acts may only be admitted when it is necessary to prove the point in issue. 709 P.2d at 506. G.J. testified that she vigorously resisted Velez’s assault, and the evidence is undisputed that she was successful in this regard and that he left without engaging in sexual intercourse. Because G.J. did resist and successfully prevented sexual intercourse, there was no justification for offering evidence that would have explained her lack of resistance had she not resisted. I assume that this evidence will not come in on retrial.

CONCLUSION

It is relatively easy to demonstrate that use of other sexual assaults to rebut a consent defense cannot be reconciled with Alaska Evidence Rules 403 and 404(b). Those courts which admit such evidence in fact ignore the rule they purport to apply. To follow their lead does violence to the policy underlying the rules.¹⁴

On the other hand, the state makes a compelling argument that problems of proof in date rape cases, coupled with the probative value of evidence of similar instances to corroborate the victim’s testimony, warrant a special exception to Rule 404(b) similar to the exception recognized in Burke and Soper. I recognize the force of this argument. Considering our supreme court’s consistent policy of restricting the use of other-crimes evidence, see, e.g., Oksoktaruk v. State, 611 P.2d 521 (Alaska 1980), I believe that this argument must be made to the supreme court, for it is that court that should adopt any exceptions to the policy established in Rules 403 and 404(b).¹⁵

The judgment of the superior court is REVERSED and this case REMANDED for new trial.

1 . Our decision to reverse renders Velez’s complaints about denial of a continuance moot. I will consider Velez’s other arguments to the extent that they are likely to reoccur at retrial.

2 . Alaska Evidence Rule 404(b) provides:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to. show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

3 . Alaska Evidence Rule 403 provides:

Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.

Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

4 . Precisely what this means, however, is open to some doubt. For present purposes, evidence is used to show propensity, and therefore violates Rule 404(b), whenever the jury is asked to infer from the fact that a defendant engaged in certain conduct in the past that the defendant had a disposition or propensity to engage in similar conduct on other occasions, and to further infer that the defendant acted in accordance with that disposition by engaging in the conduct which constitutes one or more of the elements of the crime in question. See 22 C. Wright & K. Graham, Federal Practice and Procedure § 5233-34 (1978 & Supp.1987) (hereinafter C. Wright & K. Graham).

5 . Two observations are important. First, propensity evidence is not excluded because it has too little probative value, but because it has too much:

The natural and inevitable tendency of the tribunal—whether judge or jury—is to give excessive weight to the vicious record of crime thus exhibited and either to allow it to bear too strongly on the present charge or to take the proof of it as justifying a condemnation, irrespective of the accused’s guilt of the present charge.

1A J. Wigmore, Evidence § 58.2 (Tillers rev. ed. 1983) (citations omitted).

Second, in Alaska, the rule prohibiting prior bad acts evidence under Rule 404(b) is one of exclusion, not one of inclusion. Oksoktaruk v. State, 611 P.2d 521, 524-25 & n. 9 (Alaska 1980). A rule of inclusion allows use of prior bad acts for any purpose relevant to the prosecution’s case except to show criminal propensity. In contrast, a rule of exclusion precludes use of prior bad acts evidence for any purpose except a limited number of generally recognized exceptions to the rule. Thus, prior bad acts evidence is not admissible just because it is offered to prove a fact material to the prosecution’s case other than propensity. It must fall within one of the specifically recognized exceptions to the exclusionary rule. Id. at 524. See also State v. Lerchenstein, 726 P.2d 546, 551 n. 8 (Alaska 1986) (Rabinowitz, C.J., dissenting). The distinction between defining the rule as a rule of exclusion or one of inclusion is discussed in 22 C. Wright & K. Graham, supra, § 5239 at 428-35. Rule 404(b) is based upon a federal rule that is generally interpreted as one of inclusion rather than exclusion. Moor v. State, 709 P.2d 498, 505-06 n. 5. In Alaska, recognition of the exclusionary character of Rule 404(b) requires substantially curtailing the discretion that trial courts would otherwise have under Rule 403 in determining whether to admit other crimes evidence. Id. But see Lerchenstein, 726 P.2d at 550-51 (Rabinowitz, C.J., dissenting).

6 . In context, motive can mean a sexual desire for the alleged victim of the offense. Patterson, 732 P.2d at 1104. If the state seeks to show an illicit sexual interest in women generally, however, the evidence ceases to show motive and simply shows criminal propensity. Oswald, 715 P.2d at 279. Evidence regarding a motive to have intercourse with one woman does not legitimately support an inference that the defendant was motivated to have intercourse with a second woman. Pletnikoff, 719 P.2d at 1043. Using past incidents to show a willingness to force or coerce another person to engage in sexual activity is proof of propensity, not motive or intent. Id.

The terms "motive" and "intent” are frequently used interchangeably to mean goal, object, or desired result. If the defendant concedes intercourse and claims consent, however, the goal of intercourse is not in dispute; the issues are whether the defendant recklessly disregarded the victim’s lack of consent or used force or a threat of force to coerce her. The term "intent" is also sometimes used to generally describe the defendant’s mens rea. I will discuss the interplay between the defendant’s mens rea and the consent defense later.

Rule 404(b) also allows evidence of other acts to show absence of mistake or accident. Nevertheless, in the case of date rape it is misleading to speak of a consent defense as raising issues of accident or mistake. Id. at 1044 n. 4. In contrast, in cases of sexual contact, short of intercourse, with children by a parent or custodian, a true "mistake” or innocent motive defense may be interposed. See Freeman, 486 P.2d at 978-79. When the conceded contact is unequivocally sexual, no such defense is plausible, and use of such evidence to show intent violates the rule of evidence now codified in Alaska Evidence Rule 403. Id. at 979. Cf. Moor, 709 P.2d at 510 & n. 8 (because of the relationship between the defendant and the adolescent friend of his niece, it is not possible that he could have innocently, but inadvertently, digitally penetrated her vagina).

7 . We have declined to permit admission of such evidence to show a "common plan.” Plan is not an element of sexual assault. To be admissible, a "plan” would have to be relevant to an element of the offense or to a theory of the defense. In the context of a sexual assault, the term “plan" might be construed to include a situation in which the assailant had a pre-exist-ing plan to meet women, seek sexual favors, and then sexually assault them if they refused. To admit evidence of other sexual assaults on this basis, however, undermines the policy of Rule 404(b) by permitting the use of evidence of propensity to prove conduct. We have adhered to the view that admissibility under the rule requires more than a showing that each incident is close in time, has common factors, and may be said to have been planned in the same way. To qualify under the common-plan exception to the rule, we have required that each of the incidents be constituent parts of some overall scheme. See Bolden, 720 P.2d at 961 n. 2; Pletnikoff, 719 P.2d at 1043-44 & n. 2; Oswald, 715 P.2d at 279-80 & n. 2; Moor, 709 P.2d at 506-07. In reaching these conclusions, we have relied on the analysis in 22 C. Wright & K. Graham, supra § 5244 at 359.

8 . Courts in other jurisdictions are divided on this issue. A number of courts permit evidence of sexual assault on other women to rebut a consent defense in a specific case. See State v. Huey, 145 Ariz. 59, 699 P.2d 1290, 1292-93 (1985); State v. Hampton, 529 P.2d 127, 130 (Kan. 1974), overruled on related grounds in State v. Cantrell, 673 P.2d 1147 (Kan.1983); Williams v. State, 95 Nev. 830, 603 P.2d 694, 696-97 (1979); State v. Fears, 690 Or.App. 606, 688 P.2d 88, 89-90 (1984); State v. Willis, 370 N.W.2d 193, 198 (S.D.1985). See also People v. Salazar, 144 Cal.App.3d 799, 193 CaI.Rptr. 1, 8 (1983); People v. Jackson, 110 Cal.App.3d 560, 167 CaI.Rptr. 915, 918 (1980). But see People v. Tassetl, 36 Cal.3d 77, 201 CaI.Rptr. 567, 679 P.2d 1 (1984).

A number of courts reject similar evidence when offered to rebut a defense based on consent. People v. Key, 153 Cal.App.3d 888, 203 CaI.Rptr. 144, 147-50 (1984) (criticizing Salazar and Jackson; State v. Saltarelli, 98 Wash.2d 358, 655 P.2d 697, 699-701 (1982); Annotation, Admissibility, in Rape Case, of Evidence that Accused Raped or Attempted to Rape Person Other Than Prosecutrix, 2 A.L.R. 4th 330 (1980 and Supp.1987).

9 . G.J. was apparently aware of Velez’s actions with C.S., and S.F. was aware of Velez’s actions with certain women in Illinois. This knowledge raises other issues which will be discussed later. It does not make G.J.'s experience cross-admissible with S.F.’s because they were in ignorance of each other’s experiences.

10 . Shane v. Rhines, 672 P.2d 895, 899 n. 3 (Alaska 1983), and Abruska v. State, 705 P.2d 1261, 1263-65 (Alaska App.1985), seem to suggest that a person's past experience when arrested for driving while intoxicated might be relevant to show recklessness when the person became intoxicated and drove thereafter. See also United States v. Fleming, 739 F.2d 945, 949 (4th Cir. 1984), cert, denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 973 (1985). Past experiences of being arrested while driving drunk may alert one to the risk that one presents to others when one is intoxicated and drives a car. At the least, it provides notice of the community's disapproval of drinking and driving. See Rhodes v. State, 717 P.2d 422, 428 (Alaska App.l 986).

11 . A drunk driver always presents the same risk to the community at large. The risk does not depend on any particular potential victim’s actions or responses. In contrast, Velez presented a particular risk to certain of his acquaintances under certain circumstances. An arrest for drunk driving focuses the arrested driver's attention on specific prohibited behavior. In contrast, the relationship between a charge of sexual assault and specific prohibited behavior is more ambiguous. The probative value of the reaction of Velez’s past social companions to his sexual overtures to show notice that his conduct created a substantial risk of coercing noncon-senting partners into sexual activity depends upon how similar his conduct with each woman was. The issue comes down to the probability that Velez could on several occasions be involved in conduct which his partners viewed as rape without his becoming aware of its true nature. See 22 C. Wright & K. Graham, supra § 5245.

Wright and Graham appear to be correct when they point out that use of prior crimes to show knowledge or recklessness is somewhat cynical where no one would lack the knowledge in question. See id. § 5245 n. 15 at 497-98 (Supp.1987). In order to find that Velez’s experiences with one woman should have alerted him to the risk of nonconsensual intercourse with another woman, the jury would have to find that Velez’s actions toward each woman was essentially the same. Each woman, however, testified to a violent assault. Virtually, anyone should realize that such conduct would create a substantial risk that the resulting intercourse was coerced. If a jury believed each complaining witness’ testimony that she was violently attacked, it is unlikely that it would, nevertheless, conclude that Velez did not realize the risk that his victims were not consenting to subsequent sexual relations. Thus, the real use of the evidence is to establish the coercive conduct, not the accompanying mens rea. Under such circumstances, to argue that the evidence should be admissible (to show mens red) ignores the prohibition on character evidence to prove conduct contained in Alaska Evidence Rule 404(b).

Contrast the incidents in this case in which each alleged victim testified to overt coercive behavior punctuated with violence with a case in which each alleged victim denied that her assailant had overtly assaulted or threatened her. If a number of women, nevertheless, testified to common circumstances existing when they were alone with a common assailant which were innocuous viewed in isolation, but when considered together created an ominous atmosphere effectively terrorizing them into involuntary sexual activity, the evidence might have probative value outweighing its prejudicial effect. Any one victim’s testimony might be dismissed by the jury as the product of an overactive morbid imagination. Viewed as a whole, however, the jury might infer that the defendant had successfully developed a procedure for communicating menace without overt violence. Such an inference would be highly probative of an otherwise ambiguous or even innocent appearing state of mind. The prejudice in such a hypothetical would be low because none of the victims would be testifying to any particularly outrageous behavior. It is only when all of the testimony is viewed in context that inferences adverse to the defendant will be drawn. This hypothetical may also serve to illustrate Wig-more’s doctrine of “chance” discussed in n. 13, infra. The fact that any one or even two of the alleged victims was terrified by the circumstances might well be dismissed as a mistake on her part, but when three or more witnesses testify that they were terrified by the defendant, it becomes more likely that there was some objective basis for their fear.

12 . In Moor, we addressed the state’s need for other-crimes evidence and said:

In evaluating the probative value of the evidence, [in order to balance probative value against prejudicial effect under Evidence Rule 403] the court must consider whether or not there was sufficient other evidence introduced for the same purpose. If sufficient other evidence has been introduced, the evidence of other crimes must be excluded so that “[t]enuous or marginal probative value of prior crimes evidence [will] never be allowed to serve as an excuse for implanting prejudice in the minds of the jury.”

We do not suggest that, in order to be admissible, other crimes evidence must be strictly necessary to the prosecution’s case in the sense that failure to admit the evidence would leave the case subject to a motion for directed judgment of acquittal_ We do stress, however, that the issue upon which the evidence is offered must be truly disputed in the case. Thus, where the prosecution wishes to use the evidence to rebut an anticipated defense, the trial court should seriously consider delaying the offer until the prosecution’s rebuttal in order to ensure that the anticipated defense will in fact be raised.

709 P.2d at 506 (citations omitted).

The supreme court considered a related question in Mullins v. State, 608 P.2d 764 (Alaska 1980). Alaska Criminal Rule 45 excludes from computation of time before trial, the delay resulting from a continuance granted to the prosecution because of the "unavailability of evidence material to the state’s case.” The court construed "material” to mean "important or necessary to the prosecution’s case,” and not to be synonymous with “relevant." Id. at 767 (interpreting Evidence Rule 401). A similar analysis should lead us to conclude that evidence of a defendant’s other bad acts should only be admitted when it is important or necessary to the prosecution’s case. A.R.E. 403, 404(b). See also State v. Lerchenstein, 726 P.2d at 550 (Rabinow-itz, C.J., dissenting) (in balancing prejudice against probative value, the prosecution’s need for the evidence is an important consideration; if the government has a strong case on the disputed issue, the evidence of a prior bad act should be excluded more readily).

13 . The trial court found the evidence admissible as an exception to Rule 404(b)—“proof of motive, intent, preparation, [or] plan.” We addressed a similar holding in Pletnikoff, where we said:

While there is some overlap in the permissible uses of other bad acts evidence, it is unlikely that evidence would ever be admissible in a given case for all the reasons mentioned in A.R.E. 404(b). See Moor v. State, 709 P.2d 498, 504-06 (Alaska App.1985). The trial court should therefore carefully evaluate the reasons offered for admissibility and, if it finds the evidence admissible, indicate the precise basis for its admission. A jury should not be told that certain evidence is admitted for all the purposes spelled out in A.R.E. 404(b), if most of those purposes are irrelevant to the case. See 22 C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5240 at 479 (1978) (referring to a failure to differentiate between the various purposes permitted under Federal Rule of Evidence 404(b) as the " ‘smorgasbord’ approach to analysis of other crimes evidence”).

Pletnikoff, 719 P.2d at 1042-43 n. 1.

14 . In State v. Willis, 370 N.W.2d 193 (S.D.1985), the court justified admission of a prior sexual assault to rebut a consent defense and noted that when the criminal act is admitted, and innocence is claimed on the basis of some mitigating or exculpatory factor, intent becomes a material issue. Id. at 198 n. 6 (citing 2 J. Wig-more, Evidence § 307 at 207 (3d ed. 1940)). Under this rationale, whenever a defendant relies upon justification as an affirmative defense, the defendant’s prior criminal history comes into evidence. See AS 11.81.300-.450 (general principles of justification). Thus, if the accused admits striking the victim, but claims self-defense, any prior nonprovoked assaults would be admissible to refute the defense. See People v. Simon, 184 Cal.App.3d 125, 228 CaI.Rptr. 855, 862-64 (1986) (Weiner, J., concurring). Alaska law would appear to be to the contrary. See Keith v. State, 612 P.2d 977, 984-86 & nn. 23-27 (Alaska 1980); Lerchenstein, 697 P.2d at 314-19.

The dissent, and to a lesser degree the concurrence, is troubled by the doctrine of chance. See C. Wright & K. Graham, supra § 5242; II J. Wigmore, Wigmore on Evidence § 302 (Chad-bourn Rev. ed. 1974). That doctrine'would appear inapplicable to this case for a number of reasons. If the defendant concedes or does not dispute all relevant conduct, but argues that the conduct and the result to which it leads occurred by accident or chance, then a significant number of other instances of identical conduct leading to identical results occurring in close proximity is relevant to disprove accident or chance, if common sense indicates that so many instances could not have happened coincidentally. Wigmore uses the example of three shots fired in succession in the vicinity of an individual. The first two narrowly miss; the third strongly suggests an intent to injure. Id. § 302 at 241. The propensity rule is not violated by the use of the evidence because the relevant results and the conduct causing those results is conceded and only the advertence or inadvertence of the accompanying conduct is in issue. For this reason Wigmore was prepared to. permit evidence of similar contemporaneous events, even if the actor was anonymous. Id. § 303 at 247-48. When, however, the relevant conduct leading to the result in question is contested, there is a risk that the jury will use the evidence to infer propensity and infer that the defendant engaged in the prohibited conduct by committing the offense because the defendant engaged in similar conduct in the past. Such an inference is precluded by A.R.E. 404(b). In such cases, I believe that the prejudice flowing from admission of the evidence exceeds its probative value as a matter of law.

In a case of date rape when the defense is consent, part of the relevant conduct is an act of sexual intercourse which is normally conceded. As we have seen, however, although consent under Alaska law turns primarily on the respective states of mind of the alleged assailant and the alleged victim, it also includes consideration of the defendant’s conduct as it might affect both parties’ states of mind. In fact, in cases of alleged date rape the case will probably turn on whether the jury believes that the defendant engaged in coercive conduct because such conduct, if established, would readily permit the jury to infer that the alleged victim was, in fact, coerced and that the defendant knew or was aware of a substantial risk that the alleged victim was being coerced at the time intercourse occurred. In summary, when, as here, the only real issue is whether coercive conduct occurred, use of the law of chance to prove that such conduct occurred violates the "propensity rule.” Rule 404(b).

15 . There is a growing literature devoted to problems of proof in date rape cases. See Estrich, Rape, 95 Yale LJ. 1087 (1986); Note, Culpable Mistake in Rape: Eliminating the Defense of Unreasonable Mistake of Fact as to Victim Consent, 89 Dick.L.Rev. 473 (1985).