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People v. Gholston5/11/2000
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE ROTHENBERG
Kapelke and Casebolt, JJ., concur
Defendant, Michael Gholston, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of sexual assault on a child as part of a pattern of sexual abuse, three counts of sexual assault on a child by one in a position of trust, three counts of second degree sexual assault, and two counts of contributing to the delinquency of a minor. We affirm in part, reverse in part, and remand with directions.
The charges involved three victims, all of whom were minors at the time of the offenses. Seven counts arose from allegations that defendant sexually abused victim, D.P., between August 1989 and March 7, 1994, during which time the victim was under fifteen years of age.
The charges of contributing to the delinquency of a minor involved two other victims, C.C. and J.D. According to the prosecution's evidence, defendant provided marijuana to these victims.
Limitations on Cross-Examination
Defendant first contends the trial court abused its discretion in limiting the defense's cross-examination of two of the victims by: (1) ruling that the rape shield statute precluded evidence that D.P. had sexually assaulted his younger half-brother, and (2) refusing, based on a lack of foundation, to allow evidence that C.C. had taken a breathalyzer test which had resulted in a zero blood alcohol level. We reject both arguments.
A. Rape Shield Statute
The first issue is whether the trial court erred in applying the rape shield statute, §18-3-407, C.R.S. 1999, to bar evidence by the defense that D.P. –- the victim of the sexual crimes -- had himself committed a sexual assault on a younger sibling. Defendant contends that by precluding him from cross-examining D.P. on that issue, the trial court misapplied the rape shield statute and denied defendant the right to confront witnesses against him. We are not persuaded.
The purpose of rape shield statutes is:
o prevent a trial from shifting its focus away from the culpability of the accused towards the virtue and chastity of the victim . . . [and to aid] in the fact finder's search for the truth by excluding evidence which might distract from legitimate issues involved in sexual assault cases. In other words, the purpose of the statute is to prevent trial of the victim instead of the accused.
Commonwealth v. Fernsler, 715 A.2d 435, 438 (Pa. Super. 1998). See People v. McKenna, 196 Colo. 367, 372, 585 P.2d 275, 278 (l978)(rape shield statute was enacted to protect victims of sexual assaults from being "subjected to psychological or emotional abuse in court as the price of their cooperation in prosecuting sex offenders.").
Colorado's rape shield statute provides that evidence of specific instances of the victim's or a witness' prior or subsequent sexual conduct is presumed to be irrelevant unless it is evidence of sexual conduct with the defendant or other evidence of sexual intercourse offered to show that the act or acts charged were or were not committed by the defendant. Section 18-3-407(1); In re People in Interest of K.N., 977 P.2d 868 (Colo. 1999); People v. Aldrich, 849 P.2d 821 (Colo. App. 1992).
Under the statute, if neither of these exceptions is applicable and a defendant wishes to present evidence of a victim's prior or subsequent sexual conduct, the defendant must file a written motion and an affidavit stating an offer of proof thirty days prior to trial, or later for good cause shown, after
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