Argument that Evidence was Improperly Admitted Rejected; Life Sentence Remanded for Resentencing

United States v. Cerno, ___F.3d___, 2008 WL 2502526 (10th Cir. 2008)

Efforts to reverse the trial court’s admission of inflammatory and irrelevant information in a child sex abuse prosecution were rejected by the majority. McConnell dissented. However, the COA did grant resentencing for the defendant.

Evid. R. 402, 404(b) and 403: The only evidence against Defendant was his 16-year-old niece’s accusations. The trial court originally ruled that the following evidence was inadmissible: Victim and her family returned home unexpectedly early one evening to find Defendant passed out drunk while watching an adult porn video, with his penis exposed. After Defendant testified and was cross-examined, and after the trial court continually denied the government’s request to get into the evidence, the court reversed its ruling, determining that Defendant’s testimony that drinking did not impair his judgment, and that he was in control of his senses when he drank, allowed for impeachment with the evidence. That is, passing out drunk with his penis exposed showed that he lost judgment when drunk, and impeached Defendant’s truthfulness when he denied that he lost judgment. The COA said the evidence had some, not significant impeaching relevance, it had the potential of being and was undoubtedly prejudicial to the Defendant, but the trial court did not abuse its discretion, since it is in the front row seat, of determining that the prejudicial effect did not substantially outweigh the probative value of the evidence. Furthermore, as impeachment evidence, it was not improperly admitted under FRE 404(b).

The district court committed reversible, procedural error in refusing to consider, as a matter of law, Defendant’s mitigation argument that evidence of the minimal amount of force involved would support a lower sentence (as a first offender, he received a life sentence for 2 counts of touching and 3 counts of digital or oral penetration).

Dissenting in regard to the evidentiary issue, McConnell agrees with the determination that the evidence was prejudicial, and points to the district court’s original refusal to admit it as an unwavering determination that it was prejudicial. He disagrees with the majority determination on relevance. He would find it not relevant at all (thereby bypassing the majority’s need to determine whether there was an abuse of discretion in the district court’s FRE 403 weighing).