Opinion
Case No. 4:09-cr-101.
June 11, 2010
Summary : The defendant filed a motion in limine to suppress testimony as to prior acts of physical violence and sexual assault committed by the defendant. The Court denied in part and reserved ruling in part on the motion. The Court denied the motion as to the admissibility of evidence of prior acts of sexual assault, finding that the evidence was admissible pursuant to Rule 413 of the Federal Rules of Evidence. The Court reserved ruling on the motion as to the admissibility of evidence of prior acts of physical violence.
ORDER ON MOTION IN LIMINE
Before the Court is the Defendant's "Motion in Limine to Prevent 404(b) Evidence" filed on May 27, 2010. See Docket No. 26. The Government filed a response in opposition to the motion on June 4, 2010. See Docket No. 27. For the reasons set forth below, the Court denies the motion as to the admissibility of evidence of prior acts of sexual assault and reserves ruling on the motion as to the admissibility of evidence of prior acts of physical violence.
I. BACKGROUND
On December 10, 2009, the defendant, Monty Mariner, was charged in a three-count indictment with assault resulting in serious bodily injury, assault with a dangerous weapon, and sexual abuse.See Docket No. 11. The Government seeks to introduce evidence at trial that Mariner has a history of physically and sexually assaulting Shawna Wells. On May 27, 2010, Mariner moved to exclude the evidence pursuant to Rule 404(b) of the Federal Rules of Evidence. A jury trial is scheduled for June 15, 2010 in Minot, North Dakota.
II. LEGAL DISCUSSION
A. PRIOR INCIDENTS OF PHYSICAL VIOLENCE
The Government seeks to introduce testimony from Shawna Wells that Mariner physically assaulted her on two separate occasions in March 2008 and October 2009. In his pretrial statements to police, Mariner denied assaulting Shawna Wells and claimed that someone else must have caused her injuries. However, during telephone calls made from the jail, Mariner contended that the injuries Shawna Wells suffered were accidently inflicted. In the event that Mariner claims accidental injury, or that he caused the injury to Shawna Wells but did not have the requisite intent for the crimes charged, the Government seeks to introduce testimony of Shawna Wells about the prior assaults.
The Government anticipates that Shawna Wells will testify that in March 2008 she was physically assaulted by Mariner after he climbed into bed with her and she told him to leave. Mariner struck Wells in the head, face, and elsewhere with his hands and feet. Shawna Wells sustained a broken nose and other significant facial injuries as a result of Mariner's conduct. Mariner was charged with domestic abuse in Fort Berthold Tribal Court and he pled guilty to the offense.
Shawna Wells is also expected to testify that in October 2009 Mariner punched her in the face and chest in front of one of their children. This incident was not reported to the police and no criminal charges were filed. However, in telephone calls from jail during his detention in this case, Mariner allegedly admitted that he has assaulted Shawna Wells on prior occasions.
Rule 404(b) of the Federal Rules of Evidence provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Rule 404(b) does allow the admission of such evidence for purposes of "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." "Rule 404(b) `is a rule of inclusion, such that evidence offered for permissible purposes is presumed admissible absent a contrary determination.'" United States v. Dorsey, 523 F.3d 878, 879-80 (8th Cir. 2008) (quoting United States v. Johnson, 439 F.3d 947, 952 (8th Cir. 2006)). "Rule 404(b) evidence is admissible if it is (1) relevant to a material issue, (2) close in time and similar in kind to the crime charged, (3) sufficient to support a jury finding that the defendant committed the other act, and (4) its probative value is not substantially outweighed by its prejudice." United States v. Roundtree, 534 F.3d 876, 879 (8th Cir. 2008). The Court has broad discretion in admitting 404(b) evidence, and its decision will be reversed only when "`such evidence clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts.'" United States v. Anthony, 537 F.3d 863, 865 (8th Cir. 2008) (quoting United States v. Voegtlin, 437 F.3d 741, 745 (8th Cir. 2006)).
The requirement that the probative value of the evidence is not substantially outweighed by its prejudice is derived from Rule 403 of the Federal Rules of Evidence. Rule 403 provides, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Evidence of other assaultive behavior by a defendant is generally admissible pursuant to Rule 404(b) where the defendant claims lack of intent, accident, or self-defense at trial. See United States v. Littlewind, 595 F.3d 876, 881 (8th Cir. 2010) (holding admissible the introduction of evidence of prior assaults where the prior assaults were similar in kind to the charged offenses and where the defendant claimed lack of intent and accident); United States v. Haukaas, 172 F.3d 542, 544 (8th Cir. 1999) (holding admissible the introduction of evidence of a previous assault where the defendant placed the element of intent into issue by contending that he was intoxicated at the time of the stabbing and had advanced several other defenses including accident and self-defense). Further, "[w]here intent is an element of the crime charged, evidence of other acts tending to establish that element is generally admissible." United States v. Weddell, 890 F.2d 106, 107-08 (8th Cir. 1989). Nevertheless, the broad principles of admissibility set forth in Rule 404(b) do not mandate that such evidence be admitted.
Mariner's sole argument for the exclusion of the prior bad acts evidence is that the admission of the evidence will cause unfair prejudice, confuse the issues, and mislead the jury. At trial, the Government intends to prove that Mariner assaulted Shawna Wells with a carpenter's level while she was passed out due to alcohol consumption. The March 2008 incident occurred when Shawna Wells was lying down on a bed trying to sleep. In both instances, Shawna Wells was in a vulnerable position when she was assaulted. The October 2009 incident did not occur at a time when Shawna Wells was vulnerable, but it did involve the same victim which the Eighth Circuit acknowledges as increasing the probative value of the evidence. See Littlewind, 595 F.3d at 881. The prior incidents are similar in kind to the charged offenses and occurred only one month and twenty months prior to the charged offenses and, therefore, the prior acts are sufficiently close in time to the instant offenses. Further, Mariner's concerns may be mitigated by providing a limiting instruction reminding the jurors that they may consider this evidence only for a purpose permissible under Rule 404(b), not to decide whether Mariner is guilty of a charged offense. See United States v. Walker, 470 F.3d 1271, 1275 (8th Cir. 2006) (providing that "a limiting instruction diminishes the danger of unfair prejudice arising from the admission of the evidence.").
Nonetheless, the Court finds that it is premature to rule on this issue at this time. At this early stage, the Court has no way of knowing whether Mariner will potentially open the door for the Government to introduce such evidence for purposes of proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Accordingly, the Court RESERVES RULING on the motion as to the admissibility of evidence of prior acts of physical violence against Shawna Wells. The Court will address the issue if and when it arises during trial.
B. OTHER INCIDENTS OF SEXUAL ABUSE
The Government also seeks to introduce testimony from Shawna Wells that on multiple prior occasions she awakened with vaginal soreness and thereafter had been told by Mariner that he had inserted beer bottles into her vagina without her consent and while she was asleep. The Government contends that such testimony is admissible pursuant to Rule 413(a) of the Federal Rules of Evidence.
"Although Federal Rule of Evidence 404(b) generally excludes the admission of evidence of a defendant's past wrongs to show his propensity to commit a charged offense, `Congress excepted sexual assault cases from this rule when it enacted Federal Rule of Evidence 413.'" United States v. Medicine Horn, 447 F.3d 620, 622 (8th Cir. 2006) (quoting United States v. Tyndall, 263 F.3d 848, 850 (8th Cir. 2001)). Rule 413(a) of the Federal Rules of Evidence provides that where a defendant is accused of an offense of sexual assault, "evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant." Before evidence of a prior sexual assault may be admitted, the court must conduct a balancing test pursuant to Rule 403 and determine that the probative value of the evidence is not "`substantially outweighed by the danger of unfair prejudice.'" Medicine Horn, 447 F.3d at 622.
A "sexual assault" for purposes of Rule 413 includes any conduct proscribed by chapter 109A of Title 18 of the United States Code. See Fed.R.Evid. 413(d)(1). Count three of the indictment charges Mariner with sexual abuse in violation of 18 U.S.C. § 2242(2)(B). Pursuant to 18 U.S.C. § 2242 (a statute within Title 109A), it is a crime to penetrate the genital opening of another with an object when the person is physically incapable of declining participation in, or incapable of communicating an unwillingness to engage in, the sexual act. See 18 U.S.C. §§ 2242(2)(B) and 2246(2)(C).
In United States v. Hollow Horn, 523 F.3d 882 (8th Cir. 2008), the Eighth Circuit considered whether Rule 413(a) evidence was admissible when the evidence was of a sexual assault that had occurred eleven years prior to the offenses charged in the indictment. In Hollow Horn, the defendant was charged with engaging in abusive sexual contact of two children in July 1999. The first incident involved the defendant rubbing a seven-year-old's vagina through her underwear. The second incident involved the defendant rubbing the breasts of a ten-year-old while trying to remove her underwear. Both incidents occurred while the victims were asleep. Both victims awoke and told the defendant to stop, which he did. At trial, the government introduced testimony of an adult female, Laudine, pursuant to Rule 413. Laudine testified that the defendant raped her at a New Year's Eve party on the night of December 31, 1987 or in the early morning hours of January 1, 1988, when she was twenty years old. She testified that the rape occurred while she was passed out from drinking. She awoke and told the defendant to stop, which he did. The jury found the defendant guilty of both counts, and the defendant was sentenced to 34-months' imprisonment. On appeal, the defendant argued that the trial court improperly admitted Laudine's Rule 413 testimony.
Laudine was the mother of one of the victims.
The Eighth Circuit Court of Appeals determined that Laudine's testimony was properly admitted pursuant to Rule 413 of the Federal Rules of Evidence. First, the Eighth Circuit found that the testimony of Laudine undeniably qualified as Rule 413 evidence because it was evidence that the defendant committed another offense of sexual assault. Second, the Eighth Circuit found that the evidence was relevant and probative because (1) each of the offenses involved sexual assaults of defenseless victims by the defendant, (2) the defendant was related to each of the victims, and (3) the incidents were similar in that once the victim realized what the defendant was doing, the victim told the defendant to stop, which he did. Third, the Eighth Circuit found that the probative value of the evidence was not substantially outweighed by its prejudicial effect. The court said,
Laudine's testimony was undoubtedly prejudicial to Hollow Horn as evidence admitted under Rule 413 is very likely to be. Rule 403, however, "is concerned only with `unfair prejudice, that is, an undue tendency to suggest decision on an improper basis.'" Laudine's testimony is prejudicial to Hollow Horn for the same reason it is probative — it tends to prove his propensity to commit sexual assaults on vulnerable female members of his family when presented with an opportunity to do so undetected. . . . Because this specific type of propensity evidence is admissible under Rule 413, Hollow Horn has not shown that its prejudice was unfair.
Although the prior sexual assault alleged against Hollow Horn was over 11 years prior to the alleged sexual offenses at issue here, "Congress expressly rejected imposing any time limit on prior sex offense evidence," when it enacted Rule 413.Hollow Horn, 523 F.3d at 888-89 (internal citations omitted) (emphasis in original). The Eighth Circuit further stated that the trial court gave a limiting instruction which mitigated the danger that the defendant was unfairly prejudiced. Accordingly, the Eighth Circuit determined that the trial court did not abuse its discretion in admitting Laudine's Rule 413 testimony.
In this case, the evidence at trial is expected to show that in November 2009 Mariner inserted a foreign object (a carpenter's level) into Shawna Wells's vagina without her consent while she was passed out from drinking. The Government seeks to introduce testimony by Shawna Wells that on prior occasions she awoke to vaginal soreness and, upon confronting Mariner, Mariner admitted to inserting beer bottles into her vagina without her consent while she was asleep. The Court finds that the proposed testimony of Shawna Wells qualifies as Rule 413 evidence because it is evidence of prior sexual assaults by Mariner. The prior incidents are factually similar to the charged conduct in that all incidents involve the Defendant inserting a foreign object into Shawna Wells's vagina without her consent while she was asleep or unconscious and, therefore, the proposed testimony is relevant and probative.
Upon a finding that the proposed evidence is relevant and probative, the Court must determine whether its probative value is substantially outweighed by the danger of unfair prejudice. Although evidence of the prior incidents is undeniably prejudicial, it does not amount to unfair prejudice under Rule 403. "`Rule 403 does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party's case. The rule protects against evidence that is unfairly prejudicial.'" United States v. Betcher, 534 F.3d 820, 825 (8th Cir. 2008) (quoting United States v. McCourt, 468 F.3d 1088, 1092 (8th Cir. 2006)) (emphasis in original). "Unfair prejudice" means "`an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir. 2007) (quoting Fed.R.Evid. 403 Advisory Committee's Notes). The proposed testimony of Shawna Wells is probative for the same reason that it is prejudicial — it tends to prove Mariner's propensity to commit sexual assaults on Shawna Wells by inserting a foreign object into her vagina when she is either asleep or unconscious. The prior assaults are similar in many respects to the crime charged in count three, including the fact that the assaults involved the same victim and the sexual assaults involved the use of a foreign object.
The Court finds, in its broad discretion, that the proposed testimony of Shawna Wells as to prior incidents of sexual assaults is not unfairly prejudicial. This evidence shows Mariner's propensity to sexually assault Shawna Wells with a foreign object, which is a valid purpose and a basis for admissibility under Rule 413. Any prejudice resulting from the admission of the evidence may be mitigated by providing a limiting instruction. Accordingly, the Court DENIES Mariner's motion as to the admissibility of evidence of prior acts of sexual assault committed by Mariner against Shawna Wells.
II. CONCLUSION
IT IS SO ORDERED.
DENIES IN PART RESERVES RULING