Opinion
No. 85CA1717
Decided May 7, 1987. Opinion Modified and as Modified, Rehearings Denied June 18, 1987. Certiorari Granted Adrian November 2, 1987 (87SC254).
Appeal from the District Court of Adams County Honorable Philip F. Roan, Judge
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Curt P. Kriksciun, Assistant Attorney General, for Plaintiff-Appellee.
Hawke, McComas Hofgard, Lee Allen Hawke, for Defendant-Appellant.
Defendant, Kenneth Walter Adrian, appeals the judgments of conviction entered upon jury verdicts finding him guilty of two counts of sexual assault on a child and his adjudication by the trial court as a habitual sex offender against children. His sole contention on appeal is that the trial court erred in admitting evidence of prior similar transactions because they were remote, irrelevant, and prejudicial. We affirm.
In cases of sexual assault on a child, evidence of prior similar transactions is admissible under § 16-10-301, C.R.S. (1986 Repl. Vol. 8A) and CRE 404(b), if it is offered to show a common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or intent.
Once the People have established a prima facie case, they must advise the court of the purpose for which such evidence will be offered. People v. Youngs, 665 P.2d 143 (Colo.App. 1983), aff'd, 707 P.2d 360 (Colo. 1985). The court must then determine whether the evidence is relevant to a material issue in the case, and whether its probative value is substantially outweighed by the danger of unfair prejudice. See People v. Honey, 198 Colo. 64, 596 P.2d 751 (1979). In addition, the court must instruct the jury as to the limited purpose for which the evidence is admitted and for which the jury may consider it. People v. Montoya, 703 P.2d 606 (Colo.App. 1985).
Here, the child victims testified that they had been sexually abused from age 6 while they were in the care of the defendant. The People then offered the testimony of the victims' uncle as evidence of prior similar transactions for the purpose of showing common plan, scheme, design, motive, intent, modus operandi, and guilty knowledge. The uncle testified that, 15 to 19 years ago, when he was a child 8 to 12 years old and in defendant's care, he had been sexually abused by defendant. This evidence tended to show a common motive and modus operandi, i.e., that defendant had abused his position of trust to obtain sexual gratification from children, members of his family, who were within his care. In addition, it revealed a striking similarity, both in the young age of the victims and in the type of sexual activity perpetrated by defendant.
The defendant challenges admission of the victims' uncle's testimony on the basis that its remoteness in time rendered its probative effect of lesser weight than its prejudicial influence. We perceive no error.
If remoteness is an issue, the trial court must consider all of the relevant circumstances. People v. Mathes, 703 P.2d 608 (Colo.App. 1985); People v. Geller, 189 Colo. 338, 540 P.2d 334 (1975). There are few absolute rules on the number of years that can separate two instances of conduct without destroying the evidentiary value of one. See United States v. Franklin, 704 F.2d 1183 (10th Cir.), cert. denied 464 U.S. 845, 104 S.Ct. 146, 78 L.Ed.2d 137 (1983).
Although no court has allowed evidence of similar acts to be admitted when those acts occurred more than 20 years prior, see Annot., 88 A.L.R.3d 8 (1978), there is no consistent trend in the way courts have dealt with evidence of similar acts occurring less than 20 years prior to trial. Compare, Potts v. State, 427 So.2d 8282 (Fla.Dist.Ct.App. 1983) (testimony admitted regarding sexual abuse of the defendant's sister occurring as much as 18 years before trial); and, People v. Thomas, 20 Cal.3d 457, 573 P.2d 433 (1978) (evidence of similar acts 10-18 years before trial was excluded as being remote and unduly prejudicial).
In evaluating the admissibility of such evidence, remoteness is but one issue to be considered. The trial court must also consider the strength of the evidence as to the commission of the acts, the similarities between the acts, the interval of time elapsed between the acts, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence will rouse the jury to overmastering hostility. McCormick on Evidence § 190 (E. Cleary 3d. ed. 1984).
As to the similarities of the act and the strength of the evidence, the prima facie case presented by the People showed a striking similarity in the circumstances and methods of the assaults, and was corroborative of the victims' testimony. Also, although there was an interval of approximately fourteen years between the offenses, the defendant was incarcerated for at least seven years of that time and, thus, lacked the opportunity to commit similar acts for that period. See State v. Rutchik, 116 Wis.2d 61, 341 N.W.2d 639 (1984). As to the need for the evidence, we note that, because of the secrecy surrounding sexual abuse of children, there are few effective alternative forms of proof. Finally, any impact upon the sensibilities of the jury was tempered by the carefully worded limiting instructions given before the evidence was adduced and, again, at the end of trial.
The trial court has substantial discretion in this area. While we might not have admitted evidence of abuse as remote as this, applying the law and the requisite tests, we perceive no abuse of that discretion. Pigford v. People, 197 Colo. 358, 593 P.2d 354 (1979).
Judgments affirmed.
JUDGE VAN CISE concurs.
JUDGE BABCOCK dissents.