United States District Court, D. Colorado
ORDER
PHILIP
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE
This
matter comes before the Court on the Motion to Exclude 404(b)
Evidence [Docket No. 60], wherein the defendant Dakota
Michael Heller seeks to exclude certain photographs and
videos of sleeping boys that the government intends to
introduce through Fed.R.Evid. 404(b).[1] See Docket No. 52
(Rule 404(b) notice). The government has filed a response.
See Docket No. 67.
The act
charged in this case is alleged to have taken place on April
3, 2017. The government anticipates introducing evidence at
trial that will show as follows: The defendant and Minor #1
were on an international flight returning to the United
States. The defendant swapped seats in order to sit next to
Minor #1, who was 16 years old at the time. At Minor #1's
request, the defendant gave Minor #1 Ambien. Docket No. 67 at
2. Two or three hours later, when Minor #1 was groggy, the
defendant placed a blanket over his and Minor #1's laps,
moved his hand inside Minor #1's shorts and underwear,
and had sexual contact with Minor #1. Minor #1 fell asleep
afterwards. When Minor #1 woke up to use the bathroom, Minor
#1 realized what had happened. Docket No. 52 at 3.
The
Rule 404(b) evidence that the government seeks to introduce
are videos and photographs from the defendant's cellular
telephone. Exhibits A1 to A4 to the government's Rule
404(b) notice consist of four video clips, apparently taken
in succession, of the crotch of a boy wearing shorts who is
sleeping in a moving vehicle. There is no interaction between
the boy and anyone else in the car. Exhibits B1 to B4 are two
very short videos and two photographs of the lower half of a
boy wearing shorts sleeping face down on a couch. There is no
interaction between anyone and the boy.
The
government represents that Exhibits A1 to A4 were created in
June 2018, a year after the charged conduct, and that
Exhibits B1 to B4 were created almost two years after the
charged conduct. Docket No. 67 at 4-5. The government states
that both boys were around 13 or 14 years old at the time.
Id. at 5.
In
determining whether to admit evidence under Rule 404(b), the
Court looks to the four-part test in Huddleston v. United
States, 485 U.S. 681, 691-92 (1988), which requires
that:
(1) the evidence must be offered for a proper purpose; (2)
the evidence must be relevant; (3) the trial court must make
a Rule 403 determination of whether the probative value of
the similar acts is substantially outweighed by its potential
for unfair prejudice; and (4) pursuant to Fed.R.Evid. 105,
the trial court shall, upon request, instruct the jury that
evidence of similar acts is to be considered only for the
proper purpose for which it was admitted.
United States v. Roberts, 185 F.3d 1125, 1141 (10th
Cir. 1999) (internal quotations and citation omitted). The
fact that similar acts occurred after the charged incident
does not necessarily preclude their admissibility. United
States v. Mares, 441 F.3d 1152, 1157 (10th Cir. 2006).
Although Rule 404(b) evidence must be similar to the charged
offense, it does not need to be identical. United States
v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000).
Similarity may be shown through “physical similarity of
the acts or through the ‘defendant's indulging
himself in the same state of mind in the perpetration of both
the extrinsic offense and charged offenses.'”
United States v. Queen, 132 F.3d 991, 996 (4th Cir.
1997) (quoting United States v. Beechum, 582 F.2d
898, 911 (5th Cir. 1978)). “The more similar the act or
state of mind is to the charged crime, the more relevant it
becomes.” Zamora, 222 F.3d at 762.
Both
sides agree that the only issue at trial is whether, when the
sexual contact with Minor #1 occurred, the defendant
reasonably believed that he acted with Minor #1's
permission. See Docket No. 52 at 5; Docket No. 60 at
5. There is no dispute that the defendant is sexually
attracted to teenage boys. The defendant does not deny that
he intended to engage in sexual contact with Minor #1. Docket
No. 60 at 4.
The
government claims that its Rule 404(b) evidence is probative
of the defendant's lack of mistake as to the issue of
whether Minor #1 consented to sexual contact. Docket No. 52
at 9. Specifically, the government argues that the Rule
404(b) evidence shows that the defendant “seeks
opportunities to sexualize sleeping teenage boys, knowing (or
simply not caring) that those boys have not granted
permission or expressed any reciprocal sexual interest in
him.” Id.
The
Court finds that, on the issue of consent or permission,
there are very few similarities between surreptitiously
photographing sleeping boys and the charged conduct. Given
that the boys in the Rule 404(b) evidence were asleep, there
is no question that the defendant did not have permission to
take their photographs. But, as the government concedes, the
defendant may not have needed any permission to take the
photographs. Docket No. 67 at 4 (“there is no legal bar
to recording someone in public”). Moreover, the
defendant did not touch the sleeping boys. Whatever mens rea
the defendant had when he took the photographs or videos
without touching the boys is materially different than the
defendant's mens rea when he had sexual contact with
Minor #1 while he was awake. The Rule 404(b) evidence would
not give the jury any insights into whether the defendant
believed, whether correctly or not, that he had Minor
#1's permission to have sexual contact. As a result, the
Court concludes that the government's Rule 404(b)
evidence is so dissimilar to the charged conduct as to be
irrelevant.[2]
Because
the government's Rule 404(b) evidence does not satisfy
the Huddleston test, it is ORDERED
that the Motion to Exclude 404(b) Evidence [Docket No. 60] is
granted.
---------