Opinion
D071479
12-21-2017
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER MARKHAM SMITH, Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Alana C. Butler and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD261086) APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Alana C. Butler and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Alexander Markham Smith of one count each of rape of an intoxicated person and rape of an unconscious person. (Pen. Code, § 261, subd. (a)(3) & (4).) On appeal, Smith challenges the admissibility of website content that described his activities on the night of the alleged offenses as well as his strategies for seducing women, on the grounds that the evidence was unauthenticated, irrelevant, and unduly prejudicial. Smith also contends the trial court erred in failing to instruct the jury on battery as a lesser included offense of the charged offenses.
We conclude the trial court did not err in admitting the challenged evidence or in failing to instruct the jury on battery as a lesser included offense. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Smith and Jonas Dick were paid instructors for a company that operated a website intended to help men learn how to "pick up" and have sex with as many women as possible (the website). As part of his lessons, Smith taught his students to go to bars at closing time to find a woman and to have an apartment nearby to take her to afterward.
One night in October 2013, C.E. and her friend Tara M. left a bar in downtown San Diego at closing time; both had had a lot to drink, and C.E. was heavily intoxicated. Smith and Dick approached the women and invited them to their nearby apartment, which had been rented by one of Smith's students, Jason Berlin. As they walked to the apartment, Dick and Tara talked about his name, which she did not believe until he showed her his driver's license. When the group arrived at the apartment building, they were recorded on surveillance cameras, which showed Smith groping C.E. and propping her up.
Berlin was at the apartment when the group arrived. Smith took C.E. into his bedroom, he gave her something to drink, and she passed out shortly thereafter. To distract Tara, Dick led her into another room, after which Smith and Berlin took turns having sex with C.E. As Smith and Berlin had sex with C.E., she went in and out of consciousness and vomited multiple times.
After a period of time, Tara went to check on C.E. by knocking on the closed door of Smith's bedroom. Smith opened the door, naked and with his penis erect, while C.E. was lying, nearly naked and unconscious, in his bed. Tara revived C.E. and helped her get dressed. Realizing she had been sexually assaulted, C.E. became extremely angry and hit Smith with her shoe. Smith pushed the women out of the apartment and thereafter refused to open the door.
Tara called 911 to report that C.E. had been raped. An officer administered a portable alcohol sensor test on C.E.; she had a blood alcohol content of 0.15 percent. After speaking to another officer, C.E. passed out in the back of his vehicle.
Within a day of the incident, Smith posted an entry on the website that described the details of his night with C.E., including that he approached C.E. at bar closing time, that he and a friend had sex with her at their apartment, and that afterward C.E. became upset and hit him with a shoe. Berlin also posted a report of the night, detailing his, Smith's, and Dick's activities in the apartment as well as identifying C.E.'s ethnicity and Tara's hair color.
Although C.E. could not remember much about the night of the attack, she was haunted by what had happened. Many weeks later, using the Internet, she traced Dick's name to the website, where she found instructor biographies of both Dick and Smith, Smith's picture, and his post about the incident. On another website directed to the pickup community, C.E. located an article posted under Smith's name that contained his lessons on, and experiences with, sexual conduct of the kind he had engaged in with her. C.E. notified the police, who ultimately arrested Smith and Berlin. Berlin pleaded guilty to rape of an intoxicated person and signed a cooperation agreement with the People to testify in Smith's trial.
Through pretrial evidentiary motions, Smith sought to exclude evidence of his online statements and picture. Smith argued that evidence of his general "pick up" activities was not relevant and/or admission of such evidence would be unduly prejudicial because he and other instructors did not teach men to purposely intoxicate women to gain sex. Smith further asserted that the People had not shown Smith authored the statements being attributed to him.
Smith conceded that Berlin's blog entries would be relevant if Berlin testified at trial.
The People argued that Smith's writings were posted under his name and essentially self-authenticating by their contents and/or could be authenticated by C.E.; additionally, they asserted that evidence of Smith's general activities was relevant to prove his state of mind and motive because it showed his implicit plan or practice of seeking out a highly intoxicated woman.
The trial court ruled that the website and blog evidence was relevant and admissible because the jury could reasonably infer Smith planned and intended to target a drunk woman for sex. The court further concluded that the evidence was essentially self-authenticating or subject to authentication through means other than Smith's direct testimony, but that he had the right to present evidence challenging the writings' authenticity. Smith informed the court that he did not intend to call any witnesses on the issue of the writings' foundation or authenticity.
At trial, the People called Berlin as a witness, who testified in detail about Smith's teachings, tactics, terminology, and claimed sexual exploits, as well as the monikers Smith used as an instructor. Berlin extensively described his experiences as a student of Smith's over a several-month period and his recollection of their sexual assaults against C.E.
The People also called C.E. as a witness, who testified at length about how she found the website and what she found there, including Smith's picture, biography, and posts under a moniker identified by Berlin as one used by Smith. C.E. believed that she was the woman described in Smith's blog post of the incident based on the date of his post and its particular details about Dick's conduct toward the victim's friend and how Smith had been hit by his victim with her shoe, which fundamentally matched C.E.'s recollection of the night.
Smith's defense at trial was he reasonably believed C.E. was able to, and did, consent to sexual intercourse with him. He pointed to a variety of evidence, including his blog entry of the night, which made no mention of C.E.'s intoxication, to show he did not know she was too intoxicated to resist sex.
The jury convicted Smith of both charged counts, and the trial court sentenced him to eight years in prison. Smith filed a timely appeal.
DISCUSSION
I. The Trial Court Did Not Err in Admitting Website and Blog Evidence
Smith contends the court erroneously admitted the website and blog evidence attributed to him, specifically: (1) the instructor biography (biography) describing Smith's background and instructional services, (2) the blog entry (blog entry) showing the date of the incident and describing the events of the evening, and (3) the instructional article (article). As we explain post, the trial court did not err in admitting Smith's website and blog evidence. A. Smith's Authentication and Hearsay Arguments Lack Merit
These were People's exhibit Nos. 22, 24, and 26, respectively.
Smith contends that the writings attributed to him were not authenticated and could have been written by someone else with knowledge of his background and the events of the evening. Smith argues the statements constituted inadmissible hearsay if they were written by someone else. We conclude the writings were properly authenticated and thus admissible as party admissions.
The People contend that Smith's hearsay arguments are forfeited because he did not specifically object on hearsay grounds. We conclude Smith raised the issue of hearsay in his motions in limine, albeit very briefly and as an extension of his argument that the writings were not relevant and unauthenticated, and the People addressed hearsay in their motions in limine. Thus, the limited hearsay issue raised by Smith in pretrial proceedings is sufficiently preserved for our review.
To authenticate a writing, a proffering party must introduce evidence sufficient to sustain a finding that the writing is what that party claims it is. (Evid. Code, § 1400; Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321.) Testimony by the author is not required to authenticate a writing (§ 1411); instead, authenticity may be established by the contents of the writing (§ 1421) or by other means, including circumstantial evidence (see § 1410). (People v. Valdez (2011) 201 Cal.App.4th 1429, 1435 (Valdez) [holding that a MySpace social media page was sufficiently authenticated as defendant's page based on its contents and circumstantial evidence].) Thus, a writing may be authenticated by the fact that it describes matters that are "unlikely to [have been] known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing" (§ 1421) or under circumstances where it is "unlikely anyone other than [the defendant] authored the notes" (People v. Lynn (1984) 159 Cal.App.3d 715, 735).
Further unspecified statutory references are to the Evidence Code.
The fact that conflicting inferences can be drawn regarding a writing's authenticity does not preclude its admission. (Valdez, supra, 201 Cal.App.4th at p. 1435.) Further, the fact that a court admits a writing does not establish that the writing is authentic. Rather, the court must admit the writing if evidence is sufficient to permit a trier of fact to find the challenged writing is authentic, and it is for the trier of fact to determine whether the writing is authentic. (Cal. Law Revision Com. com., 29B pt.5 West's Ann. Evid. Code (2015 ed.) foll. § 1400, p. 193.) We review a trial court's finding on the admissibility of evidence for an abuse of discretion. (People v. Goldsmith (2014) 59 Cal.4th 258, 267.) We find no abuse of discretion here.
The evidence introduced at trial, although circumstantial, was sufficient to support a finding that Smith authored the biography, blog entry, and article. For example, the biography was accompanied by Smith's picture on the website and its contents were consistent with other materials he had written. Likewise, the blog entry was posted on the website under Smith's moniker and described details about Smith's encounter with C.E. that were unlikely for anyone other than Smith to have known. The article also used Smith's characteristic and unique terminology, and described sexual conduct confirmed by Berlin. The contents of the biography, the blog entry, and the article were mutually reinforcing and authenticating. (See Valdez, supra, 201 Cal.App.4th at pp. 1435-1436 [concluding that the inclusion of a defendant's picture and comments on a webpage was sufficient to support admission of the webpage into evidence]; Chaplin v. Sullivan (1945) 67 Cal.App.2d 728, 734 [contents of letters made it improbable that anyone other than the defendant could have written them].)
In fact, Smith's counsel argued in closing that Smith wrote the blog entry.
Smith's reliance on People v. Beckley (2010) 185 Cal.App.4th 509, 517-518 (Beckley), in support of his argument that the materials were not properly authenticated is misplaced. In that case, the prosecution alleged a gang-benefit enhancement to a murder charge and sought to prove that defendants belonged to a certain gang by introducing the testimony of a detective who had found what he believed to be an online roster of the gang's members. (Id. at pp. 511-512, 517-518.) Absent any evidence regarding who authored the purported roster, what the list was intended to represent, and whether the author had any personal knowledge of the gang's members, the court concluded the document was not properly authenticated. (Id. at p. 518.)
The evidence in this case is plainly different from the rank speculation proffered by the prosecution in Beckley. The introduction of Smith's picture and the blog entry, under his moniker and describing specific details about what happened during the incident that were not likely known to anyone who was not present on the night in question, amply permitted the jury to conclude that Smith wrote and posted the materials.
Smith nonetheless argues that either Berlin or Dick could have authored the biography or blog entry about him. However, there is no evidence in the record that either Berlin or Dick had a motive to impersonate him; more importantly, the fact that either of them may have impersonated Smith did not render the evidence inadmissible, but was a matter for Smith to argue to the jury. (Valdez, supra, 201 Cal.App.4th at pp. 1435-1437.)
For these reasons, we conclude that the People's evidence was sufficient to support a finding that Smith was the author of the challenged website content, as the jury implicitly found, and the court did not err in admitting the evidence. Having concluded the content was authenticated, Smith's hearsay arguments fail. (§§ 1220, 1221; People v. Horning (2004) 34 Cal.4th 871, 898 ["The hearsay rule does not bar statements when offered against the declarant in an action in which the declarant is a party."]) B. Smith's Relevance Arguments Lack Merit
Smith also contends that the website and blog evidence was irrelevant because the only disputed issue at trial was whether C.E. had the ability to consent to sexual intercourse. We disagree.
Smith placed all material issues in dispute by pleading not guilty, and he never offered to admit or concede any elements of the charged offenses. (People v. Bivert (2011) 52 Cal.4th 96, 117 (Bivert); People v. Roldan (2005) 35 Cal.4th 646, 705-706.) Thus, the People were required to prove beyond a reasonable doubt that he had sexual intercourse with C.E., that C.E.'s intoxication rendered her unable to resist his efforts, and that Smith had imputed or actual knowledge of her incapacity. (Pen. Code, § 261, subd. (a)(3) & (4).)
To meet this burden, the People were entitled to introduce any evidence that tended " ' "logically, naturally, and by reasonable inference" ' " to establish Smith's identity as the assailant, his intent or motive to commit the charged offenses, and that it was part of his practice to seek out women who were highly intoxicated and thus unable to resist his advances. (Bivert, supra, 52 Cal.4th at pp. 116-117 [evidence that defendant was a white supremacist and a racist was relevant to prove that he had the intent and motive to assault a white inmate who associated with a nonwhite inmate].) The website and blog evidence was relevant to show these facts.
Smith asserts that the relevance of the website content was negated by the fact that the materials did not advocate the use of alcohol or drugs as a means for achieving sex with women. This argument is disingenuous, however, in light of the evidence that Smith expressly advised his students to go looking for women at bars near closing time and to keep an apartment near the bars so that they could promptly take the women there for the purpose of having sex with them.
In any event, it was for the jury to determine whether the website evidence, in combination with other evidence, was sufficient to prove the elements of the charged offenses and to disprove Smith's consent defense. (§ 210 [relevant evidence means evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action"]; see CALCRIM No. 1002 [elements of rape of an intoxicated person].) Smith's relevance challenge is without merit. C. The Evidence Was Not Unduly Prejudicial
Smith next contends that even if the website and blog evidence was relevant, the court should have excluded it under section 352 as unduly prejudicial. He argues the evidence did nothing but paint him in a negative light and was likely to evoke an emotional bias against him.
A trial court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. (§ 352.) Evidence is unduly prejudicial under section 352 if it uniquely tends to evoke an emotional bias against the defendant as an individual and has very little effect on the issues. (People v. Karis (1988) 46 Cal.3d 612, 638.) We review a court's decision to admit or exclude evidence under section 352 for abuse of discretion. (People v. Zambrano (2007) 41 Cal.4th 1082, 1149; Karis, at p. 637.)
Here, the record shows the trial court carefully considered the proffered evidence, heard the parties' arguments, and weighed the factors specified in section 352. As discussed ante, the evidence was highly probative to establish (1) Smith's identity as C.E.'s assailant and (2) that Smith intentionally sought out women, like C.E., who would be unable to resist sexual intercourse due to their level of intoxication, as well as to permit an inference that Smith's experiences allowed him to ascertain a woman's degree of intoxication.
Under these circumstances, we conclude that the trial court did not abuse its discretion in admitting the website and blog evidence, which corroborated and matched Berlin's unchallenged trial testimony and blog post on the same topic. Although the jury may have found the evidence offensive and uncomfortable to hear, the evidence was nonetheless relevant to Smith's motive, intent, and knowledge when interacting with C.E. We are not convinced the jury was at risk of convicting Smith based on an irrational emotional response as opposed to evidence he committed the crime. Smith has failed to show an abuse of the court's discretion under section 352. D. Any Error Was Harmless
Smith contends that any trial court error in admitting the evidence cannot be deemed harmless because evidence of C.E.'s disabling intoxication was not overwhelming. As we have discussed, the court did not err and, even if we had concluded otherwise, we find Smith would not have obtained a more favorable result absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 76 [evidentiary error involving application of state evidentiary law reviewed under Watson standard].)
This was not a close case, with Smith's identity as C.E.'s assailant and C.E.'s incapacity and inability to consent overwhelmingly established through the testimony of Berlin, Tara, C.E., and the officers who responded to the 911 call, as well as the video recordings from the apartment building's surveillance camera. Any error in the admission of the website evidence was thus harmless.
II. The Trial Court Did Not Err in Failing to Instruct the Jury on Battery
A trial court has a sua sponte duty to instruct on a lesser included offense if there is substantial evidence that the defendant is guilty only of the lesser offense. (People v. Shockley (2013) 58 Cal.4th 400, 403; People v. Chenelle (2016) 4 Cal.App.5th 1255, 1264.) Smith claims the trial court erred in failing to instruct the jury on battery, which he contends is a lesser included offense of rape of an intoxicated or unconscious person. Assuming without deciding that battery is a lesser included offense of the charged rape offenses, we conclude the trial court was not required to instruct on battery because substantial evidence did not support a finding that Smith was guilty only of battery.
Although we do not address the issue, we note that at least one appellate court has determined that battery is not a lesser included offense of rape of an unconscious person. (People v. Hernandez (2011) 200 Cal.App.4th 1000, 1006.)
Battery requires an unlawful use of force against another, while rape requires an unlawful act of sexual intercourse. (Pen. Code, §§ 242 [battery], 261, subd. (a) [rape].) A perpetrator's reasonable belief that the victim consented to physical contact is a defense to either such charge. (People v. Lema (1987) 188 Cal.App.3d 1541, 1545 [battery not committed if defendant reasonably believed that sexual activities were consensual]; see People v. Rivera (1984) 157 Cal.App.3d 736, 742 [assault not committed if defendant reasonably believed that touching was consensual].) Thus, if the jury had credited Smith's defense that he reasonably believed C.E. consented to his physical contact with her, it would have been required to acquit him not only of the charged offenses, but also of battery. Absent evidence that Smith committed a battery but not rape, the trial court did not have a duty to instruct the jury on battery sua sponte.
We need not address Smith's claim of cumulative error, having concluded the trial court did not err on any asserted ground.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: McCONNELL, P. J. HALLER, J.