Fremont County District Court No. 10CR107 Honorable David M. Thorson, Judge
John W. Suthers, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Joseph P. Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, Franklyn J. Whitlock, appeals the judgments of conviction entered on jury verdicts finding him guilty of sexual assault on a child and sexual assault on a child by one in a position of trust. He also appeals the denial of probation. We affirm.
¶ 2 The victim's mother, D.Q., married defendant when the victim was six months old. When the victim was eleven years old, D.Q. and defendant separated, and defendant moved out of their house. Sometime during the next six months, the victim stayed at defendant's house for a weekend. According to the victim, one night while she was sleeping, defendant went into the bedroom, lay down beside her, removed her underwear, and touched her vagina. When she woke up and told him to stop, defendant left the room. Several years later, the victim told her new stepfather and her mother, who then contacted the police.
¶ 3 The People charged defendant with sexual assault on a child and sexual assault on a child by one in a position of trust (victim under fifteen years old). At trial, the prosecution presented, in addition to the victim's testimony, evidence of (1) admissions made by defendant during two pretextual telephone calls initiated by the victim; and (2) other bad acts committed by defendant.
¶ 4 Four defense witnesses (who were also present at defendant's apartment the entire evening of the incident) testified that the victim slept in the living room on a loveseat (as she always had), right next to the couch where defendant's mother slept. Defendant, his mother said, slept in a bedroom with his then girlfriend. The defense posited, as a reason why the victim might falsely accuse defendant, that she was upset with him for divorcing her mother and starting a new life with a new girlfriend.
¶ 5 The jury convicted defendant as charged, and the court sentenced him to a total of four years to life imprisonment in the custody of the Department of Corrections (DOC).
II. Evidence of Other Bad Acts
¶ 6 Defendant contends that the trial court reversibly erred when it admitted evidence of his prior bad acts. We are not persuaded.
¶ 7 Before trial, the People filed a motion to admit evidence of defendant's other acts concerning the victim's mother, D.Q., and D.Q.'s younger sister, J.N., for the purposes of proving identity, motive, and intent, and to rebut a defense of fabrication by the victim.
¶ 8 During a hearing, D.Q. testified that, in 2005, during the last year she lived with defendant, she would "wake up at night to him having sex with [D.Q.] and [she] would tell him to stop, " but he would not. J.N. testified that, in 1996, when she was fifteen years old, one time after she changed clothes in the bedroom shared by D.Q. and defendant, defendant told her that he had watched her through the window and she had a "nice ass." J.N. also testified that defendant picked her up from work one night, pulled the car to the side of the road, and said, "[L]ook at this." When she looked over, defendant had his pants and underwear completely down and said, "Do you think that I have a nice set or what?"
¶ 9 The trial court found that it was "a very close question" as to whether any of the evidence should be admitted, but allowed the other acts evidence concerning both D.Q. and J.N, for purposes of proving identity, motive, and intent.
¶ 10 At trial, D.Q. and J.N. testified consistently with their testimony at the hearing.
¶ 11 Section 16-10-301, C.R.S. 2014, and CRE 404(b) govern the admissibility of other sexual misconduct evidence in sexual assault cases. The General Assembly has recognized that sexual offenses "are a matter of grave statewide concern, " § 16-10-301(1), and has delineated the requirements for the admissibility of other acts evidence in those cases. People v. Jones, 2013 CO 59, ¶ 13. Specifically, "[t]he prosecution may introduce evidence of other acts of the defendant to prove the commission of the offense as charged for any purpose other than propensity, " including motive, intent, and identity, and to refute the defense of recent fabrication. § 16-10-301(3).
¶ 12 Such evidence is admissible, under a CRE 404(b) analysis, if, as pertinent here, (1) its relevance to a material issue in the case is independent of the intermediate inference that the defendant has a bad character and acted in conformity with that bad character; and (2) its probative value is not substantially outweighed by the ...