Gezzi v. State

*973
GOLDEN, Justice.
Anthony Gezzi (Gezzi) was convicted of two counts of immoral or indecent acts with his daughter, in violation of W.S. 14-3-105 (July 1986 Repl.). On appeal, he contends that the trial court erroneously admitted evidence of' his prior bad acts involving earlier similar immoral or indecent acts with another of his daughters.
We affirm.
On Friday, December 4, 1987, the victim and daughter of Gezzi, seven-year old G.G., watched a good touch/bad touch film at school with her classmates. After the film, G.G. went to her regularly scheduled group counseling session with her counselor. While in session, G.G. revealed to her counselor that her father, Gezzi, had “bad touched” her or touched her private parts, and had been doing so since G.G. was in kindergarten. She stated that the latest incidents had occurred the previous Monday and Wednesday of that week, November 30 and December 2, 1987, when her father made her touch his penis, touched his penis to her and touched her with his hands between her legs. She further stated that her father had told her not to tell anyone because her mother and brothers would not love her anymore. After G.G. repeated her statements to the police and to the Department of Public Assistance and Social Services, Gezzi moved out of the family home. Following an investigation, on March 15, 1988, a criminal complaint was filed against Gezzi charging him with two counts of violating W.S. 14-3-105.
1
G.G. was examined by a pediatrician who concluded from the physical evidence, including scarring and thickening of the hymen and a larger than normal hymenal opening for a seven year old, that G.G. had been the victim of chronic sexual abuse, and that such physical symptoms could not have been caused by masturbation. A jury trial was held on June 7 through 10, 1988. At trial, a pediatrician for the defense testified that the physical evidence the first pediatrician relied on in making her conclusion could be consistent with but was inconclusive of sexual abuse, and could be consistent with masturbation. This pediatrician did not examine G.G.
Gezzi did not testify at trial; his counsel’s theory of defense was that Gezzi was innocent of the crime charged. In so defending, his counsel attacked G.G.’s credibility by introducing evidence at trial indicating that G.G. had several behavioral problems, the most important of which were a propensity to lie, to make up stories about her family and to distort reality more than most children her age. Because of these acknowledged behavioral problems, after an in-chambers hearing the prosecution introduced the testimony of G.G.’s older sister, P.G. P.G. testified that Gezzi had sexually abused her for almost five years before she finally ran away from home. She stated that she had reported the sexual abuse, that her father admitted it, that the family went into counseling after the report, but that no charges were brought against him. Further evidence of the sexual abuse of P.G. was introduced through other witnesses. Gezzi objected to the introduction of this evidence of prior bad acts under W.R.E. 404(b), stating that the only purpose the prosecution could have in introducing it was to inflame the jury. The trial court disagreed, finding that the evidence was admissible on the issue of G.G.’s credibility.
On June 10, 1988, the jury found Gezzi guilty of two counts of immoral or indecent acts with a child, as proscribed by W.S. 14-3-105. The trial court entered judgment on August 6,1988, sentenced Gezzi to two to three years on each count, suspended the sentence on the second count and imposed three years probation to be served at the end of the first sentence. This appeal followed.
Gezzi contends that P.G.’s testimony implicating him of prior sexual activi
*974
ty with her was inadmissible under W.R.E. 404(b). The rule provides:
Other crimes, wrongs or acts.
— Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
This rule generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect upon the accused’s character. Unquestionably, Wyoming is committed to applying the 404(b) general rule of exclusion in criminal cases.
Elliott v. State,
600 P.2d 1044, 1047
(Wyo.1979). Yet, several exceptions to the exclusionary rule exist. The exceptions noted in Rule 404(b) under which evidence of other crimes may be admissible are not exhaustive, but rather are illustrative.
United States v. Masters,
622 F.2d 83, 86
(4th Cir.1980);
United States v. Beechum,
582 F.2d 898, n. 15
(5th Cir.1978)
2
;
Makinen v. State,
737 P.2d 345, 347
(Wyo.1987);
Brown v. State,
736 P.2d 1110, 1111, n. 1
(Wyo.1987);
Hopkinson v. State,
632 P.2d 79, 127
(Wyo.1981), cert. denied
455 U.S. 922
,
102 S.Ct. 1280
,
71 L.Ed.2d 463
(1982). “We have previously recognized exceptions to the 404(b) exclusionary rule other than those catalogued in the rule.”
Brown,
736 P.2d at 1111, n. 1
. This recognition of exceptions apart from those suggested in the rule affords the trial courts greater discretion in the admission of such evidence. Consequently, in our review of a trial court’s admission of similar acts evidence we look to see if there has been an abuse of that discretion in light of our previous decisions.
Elliott,
600 P.2d at 1049
.
As early as 1927, this court held that in the context of sexual offenses other similar acts of the defendant could be admitted if they involved the victim of the charged offense.
Strand v. State,
36 Wyo. 78
,
252 P. 1030
(1927) (in prosecution for rape of a ten-year old, the court properly admitted evidence of other acts of intercourse occurring between the victim and the accused to show “the lustful disposition and intent of the defendant.”) See also
State v. Quirk,
38 Wyo. 462
,
268 P. 189
(1928) (citing
Strand,
for the rule of admission); and
State v. Koch,
64 Wyo. 175
,
189 P.2d 162
(1948) (citing
Strand
and
Quirk
for the general rule and noting that most jurisdictions permit such testimony to corroborate the victim’s testimony of the offense charged or to prove identity of the perpetrator). In recent years we have expanded on the exceptions to Rule 404(b) in the context of sexual offenses and have permitted the admission of testimony of third persons as to other similar acts between themselves and the accused.
3
Brown
;
and
Elliott
.
These cases, recognizing the nationally predominant trend towards admission of third party testimony of similar acts, are helpful to our determination here.
4
*976
The facts in
Brown
and
Elliott
are virtually identical to those in the case before us. In
Elliott
,
the defendant was charged with sexually assaulting his step-daughter; at trial the victim’s older sister testified regarding three prior instances of sexual assault involving the defendant and herself. In
Brown
,
the defendant was charged with incest with his natural daughter; at trial the victim’s half-sister and adopted daughter of the defendant testified about a continuing course of conduct involving sexual intercourse or sexual contact between herself and the defendant occurring over a period of several years beginning when the half-sister was about six years old. In each case, the trial court admitted the testimony for the purpose of showing motive.
Brown,
736 P.2d at 1113
;
Elliott,
600 P.2d at 1048
. We said:
*977
Incest involves aberrant sexual behavior — it is a type of sexual deviancy that is difficult to 'understand. Therefore, a trier of fact might well wonder what would motivate the accused to behave in such bizarre manner. The evidence of prior sexual acts then was probative under the motive exception because of the unusual sexual behavior involved. It seems, however, that motive is usually thought of as the reason the crime was committed. If motive equates to reason, then perhaps appellant’s motive for having sexual relations with his younger daughter was that the older daughter was no longer available and the younger daughter was taking her place. The older daughter’s testimony would be admissible for this purpose.
If the accused had a predilection to deviant sexual practices with young female relatives, it would not be unreasonable for the trier of fact to determine that he had a motive to commit the acts complained of by the victim in this case.
Consistent with our holding in
Elliott
,
we determine the admission of testimony regarding conduct of appellant described by the victim and her older sister was justified as proof of motive and was sufficiently similar to meet the relevancy requirements of Rule 404(b).
Brown,
736 P.2d at 1113
:
Gezzi began sexually molesting his older daughter, P.G., when she was ten years old, and often with G.G. present in the same bed. When P.G. was thirteen, she reported the sexual abuse, which Gezzi admitted to. No charges were brought and the family went into counseling. However, the sexual abuse of P.G. did not stop. Finally, when she turned fifteen, P.G. ran away from home to escape her father’s continued molestation and was ultimately removed from the home. Shortly after her departure, Gezzi began molesting five-year-old G.G. and continued the abuse for two years until G.G. reported the incidents involved here. In both situations, Gezzi told the girls that if they told anyone of his abuse, their mother and brothers would not love them anymore.
Under the facts of this case and the rationale of
Brown
and
Elliott
,
the evidence may have been properly admitted for the purpose of showing motive; the trial court ruled that the evidence was admissible on the issue of G.G.’s credibility, which was attacked by the defense. In discussing the admission of prior bad acts testimony for corroborative purposes, the author of Comment,
Defining Standards for Determining the Admissibility of Evidence of Other Sex Offenses,
25 UCLA L.Rev. 261 (1977), aptly notes that in sex offenses where the victim is acquainted with the accused the victim’s credibility will be of paramount importance.
The victim’s credibility or apparent lack thereof may be determinative on the question of the defendant’s ultimate guilt or innocence. In many sex crimes, where the only eyewitnesses are the complaining witness and the perpetrator, and where there is a dearth of any independent physical evidence tending to establish the crime’s commission, admission of corroborative evidence serves the dual purpose of reducing the probability that the prosecuting witness is lying, while at the same time increasing the probability that the defendant committed the crime.
Id.
at 286. Similarly, this court has noted that “one of the principal reasons for allowing evidence of prior acts or crimes in cases involving sex offenses is the fact that the usual situation places the testimony of a victim against that of the accused, increasing the pertinency of intent, knowledge, plan, motive, etc.”
Grabill v. State,
621 P.2d 802, 810
(Wyo.1980). See also C. Wright & K. Graham,
Federal Practice and Procedure: Evidence
§ 5248 (1978). We quote from a case cited by Justice Thomas in the
Elliott
opinion:
The [prior bad acts] testimony was also admissible * * * as evidence tending to buttress the credibility of M and S, minor witnesses who had been charged by the accused with fabricating the evidence against him. Where proof necessarily depends on the credibility of testimony of child witnesses about sexual acts performed in private, and where the accusations of misconduct are flatly denied by
*978
the accused, evidence of similar acts may be received on the issue of the credibility of the minor witnesses.
People v. Fritts,
72 Cal.App.3d 319, 325
,
140 Cal.Rptr. 94, 97
(1977). This language is particularly pertinent here. Although not testifying himself, Gezzi attacked G.G.’s credibility through the introduction, in defense to the charge, of the testimony of Mrs. Gezzi and a social worker that G.G. had a tendency to lie. Moreover, the physical evidence admitted at trial was inconclusive as to the cause of G.G.’s physical symptoms. P.G.’s testimony relating a course of sexual misconduct occurring between herself and Gezzi was sufficiently similar to the events of molestation occurring between Gezzi and G.G. to be particularly relevant under Rule 404(b) for the purpose of corroborating G.G.’s testimony.
Our inquiry does not end here, however. Although relevant, P.G.’s testimony may not be admissible if its prejudicial effect outweighs its probative value. W.R.E. 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.
In
Elliott,
600 P.2d at 1049
, we said:
The function of performing the comparisons required by Rule 403, W.R.E., generally is held to be discretionary with the trial court. The fact that the evidence is detrimental to the defendant is neutral. For the prejudice factor to come into play the court must conclude that it is unfair.
United States v. Dolliole,
597 F.2d 102
(7th Cir.1979).
Evaluating the evidence in this case in light of our earlier decisions and those of other jurisdictions, we cannot say that the danger of unfair prejudice to Gezzi outweighs the probative value of P.G.’s testimony of earlier acts of sexual misconduct involving Gezzi and herself. The evidence was properly admitted for the purpose of corroborating the testimony of G.G., whose credibility was directly placed in issue. The trial court did not abuse' its discretion.
Affirmed.
. W.S. 14-3-105 provides in part:
Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony * * *.
. Rule 404(b), Federal Rules of Evidence is identical to Rule 404(b), Wyoming Rules of Evidence. Therefore, we find federal cases addressing this rule instructive.
. In 2 D. Louisell and C. Mueller,
Federal Evidence,
§ 140, at 36 (Supp. Aug.1989), the authors characterize Rule 404(b) as an "inclusion-ary" rule, as opposed to the traditional characterization of the rule as "exclusionary," thus emphasizing the more liberal stance taken by most jurisdictions regarding the admission of prior bad acts evidence. Nine federal circuit courts have determined that Congress’ use of "such as" in Rule 404(b) commits the federal courts to this inclusionary approach. See e.g.
United States v. Moore, Til
F.2d 983 (D.C.Cir. 1984); and
United States v. Gustafson,
728 F.2d 1078
(8th Cir.1984),
cert. denied,
469 U.S. 979
,
105 S.Ct. 380
,
83 L.Ed.2d 315
(1984). Also, thirty state jurisdictions have adopted evidence codes patterned after the liberal federal rules. Under today's liberal position, exclusion is the exception to the rule of inclusion, which is the norm. "The true problem in administering this inclusionary principle is not to find a pigeonhole in which the proof might fit, but to determine whether the prior act does tend to prove something other than propensity and, if so, to determine whether its particular relevancy outweighs the risk of prejudice — that is, the risk that the jury will either draw the forbidden and deadly three-step inference from bad act to bad person to guilt, or give way to unthinking and emotional impulse to punish.”
Id.
.Several jurisdictions liberally recognize the admissibility of prior bad acts evidence in sexual offenses for various purposes. See
Bowden v. State,
538 So.2d 1226
(Ala.1988) (evidence ad
*975
missible to prove any "material other purpose,” including identity and motive);
Soper
v.
State,
731 P.2d 587
(Alaska App.1987) (evidence of prior acts with older sisters of victim, also daughters of defendant, was admissible to show the defendant’s lewd disposition and was highly corroborative of the victim’s testimony);
State
v.
Weatherbee,
158 Ariz. 303
,
762 P.2d 590
(1988) (admissible to show common scheme and emotional propensity);
Young v. State,
296 Ark. 394
,
757 S.W.2d 544
(1988) (evidence of prior occurrences between the victim and the accused is admissible under Arkansas Rule of Evidence 404(b) if it is independently relevant to the main issue in the sense of tending to prove some material point rather than to prove the defendant is a criminal, and can be admissible to show sexual instinct. A cautionary instruction must be given. Evidence of acts occurring between defendant and third party is not admissible under any of the exceptions.);
People
v.
Hunt,
72 Cal.App.3d 190
,
139 Cal.Rptr. 675
(2d Dist.1977) (corroboration);
Adrian v. People,
770 P.2d 1243
(Colo.1989) (evidence admissible if offered for the limited purpose of establishing a common plan, scheme, design, identity,
modus operandi,
motive, guilty knowledge or intent. However, the prosecution must first have a
prima facie
case before such evidence can be introduced. Moreover, a limiting instruction must be given. Finally, the remoteness of the crime (in this case, fifteen years) affects only the weight not the admissibility of the evidence.);
State v. Hauck,
172 Conn. 140
,
374 A.2d 150
(1976) (common scheme or design);
Snowden v. State,
537 So.2d 1383
(Fla. App.1989) (identity, credibility of witness);
Calloway v. State,
520 So.2d 665
(Fla.App.1988) (when crime occurs in the familial setting and the victim is the only witness to the crime, the victim’s credibility becomes a focal issue; therefore, the court relaxed the strict standard applicable to similar acts evidence and allowed evidence of a sexual battery of another family member as relevant to
modus operandi,
scheme, plan and design in order to corroborate the victim’s testimony);
Beasley
v.
State,
518 So.2d 917
(Fla.1988) (opportunity);
McGuire
v.
State,
188 Ga.App. 891
,
374 S.E.2d 816
(1988) (notes that an exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses; is admissible to show motive, scheme, plan, bent of mind and course of conduct);
Conaway
v.
State,
188 Ga.App. 561
,
373 S.E.2d 660
(1988) (evidence of prior bad acts with victim’s sister admissible to show lustful disposition and the defendant’s attitude toward the female members of his family);
State v. Greensweig,
102 Idaho 794
,
641 P.2d 340
(1982) (intent);
People v. Daniels,
172 Ill.App.3d 616
,
122 Ill.Dec. 687
,
527 N.E.2d 59
(2d Dist.1988) (evidence admissible to show motive, intent, identity, absence of mistake, knowledge, common design, scheme of plan and
modus operandi)-, Hickman v. State,
537 N.E.2d 64
(Ind.App. 1989) (depraved sexual instinct);
Bixler v. State,
537 N.E.2d 21
(Ind.1989) (depraved sexual instinct);
Lutz v. State,
536 N.E.2d 526
(Ind.App. 1989) (depraved sexual instinct);
Stwalley v. State,
534 N.E.2d 229
(Ind.1989) (evidence admissible to show a depraved sexual instinct and to bolster the credibility of the complaining witness where the acts seem improbable.);
Andrews v. State,
529 N.E.2d 360
(Ind.App.1988) (evidence is not admissible on question of guilt but is for depraved sexual instinct, motive, intent, purpose, identity, common scheme or plan. The rationale is to bolster the credibility of the prosecution’s witness when the acts chargeable seem improbable, or the acts are continuing, and it is likely that they occurred before or will occur again.);
State v. Plaster,
424 N.W.2d 226
(Iowa 1988) (evidence admissible to prove motive, opportunity, intent, preparation, plan, identity, knowledge, or absence of mistake or accident. The court noted that the list of purposes listed in I.R.E. 404(b) was not exclusive. "The key is whether the challenged evidence is relevant and material to some legitimate issue other than the defendant’s general propensity to commit wrongful acts. If the evidence meets this litmus test, it is
prima facie
admissible, notwity to demonstrate the accused’s bad character.” Sex cases, the court noted, are like signature crimes; thus, prior evidence would be highly relevant.);
State v. Hampton,
215 Kan. 907
,
529 P.2d 127
(1974) (intent, plan of operation);
State v. Walker,
540 So.2d 1059
(La.App.1989) (evidence admissible to prove
res gestae
if prior act is part of a whole deed);
State v. Baker,
535 So.2d 861
(La.App.1988) (evidence admitted for corroboration of the offense and to show the intimate relations between the parties, the defendant’s lustful disposition, probability of commission of the offense and to rebut defendant’s alibi);
State v. Howard,
520 So.2d 1150
(La.App. 1987) (citing
Elliott
,
the court held that evidence was admissible to show motive, plan, intent, lustful disposition, unnatural desires of sexual intercourse, propensity, inclination, disposition toward sex in general, opportunity to systematically engage in nonconsensual relations with daughters; was also permitted to corroborate the victim’s testimony);
State v. Ouellette,
544 A.2d 761
(Me.1988) (evidence of prior conviction on sex related crime was held admissible to show the relationship between the parties);
People v. Burton,
28 Mich.App. 253
,
184 N.W.2d 336
(1970) (credibility of complaining victim, intent, scheme, plan or system);
State v. Shamp,
422 N.W.2d 520
(Minn.App.1988) (common scheme);
State v. Lingle,
759 S.W.2d 638
(Mo. App.1988) (in rape of an adult, evidence of prior bad acts was admissible to show common plan, scheme or depraved sexual instinct);
State v. Simerly,
463 S.W.2d 846
(Mo.1971) (evidence of prior incestuous acts with sister of victim admissible for corroborative purposes.);
State v. Eiler,
762 P.2d 210
(Mont.1988) (evidence admissible. to show plan, motive, opportunity. The court applied a four-part test, first enunciated in
Just v. State,
184 Mont. 262
,
602 P.2d 957
(1979), to determine whether the evidence would be admitted. The four factors to be
*976
considered are: (1) similarity of the crimes or acts; (2) nearness in time; (3) tendency of the evidence to establish a common scheme, plan, or system; and (4) whether the probative value of the evidence was outweighed by its prejudicial effect. The court noted that the acts need not be identical but only "sufficiently similar” to justify their admission, and that a five-year lapse of time between the charged act and the prior acts was not too remote (defendant was stepfather to the complaining victim through one marriage and stepfather of the prior victim through a previous marriage). The lack of opportunity caused the time lapse to be insignificant);
State v. Gilpin,
756 P.2d 445
(Mont.1988) (admissible for general 404(b) purposes but must have: (1) notice to the defendant prior to trial of the intent to introduce such evidence; (2) an admonition to the jury of the evidence’s limited purpose; and (3) a similar cautionary instruction);
State v. Hoffmeyer,
187 Neb. 701
,
193 N.W.2d 760
(1972) (intent or motive);
Find-ley v. State,
94 Nev. 212
,
577 P.2d 867
(1978) (intent, lack of mistake);
State v. Johnson,
130 N.H. 578
,
547 A.2d 213
(1988) (evidence of prior bad acts with victim allowed to show mode of operation and on question of coercion to show system of the crime, activity, identity, motive, and context); •
People v. Velasquez,
141 A.D.2d 882
,
530 N.Y.S.2d 208
(2 Dept.1988) (state of mind);
People v. Bagarozy,
132 A.D.2d 225
,
522 N.Y.S.2d 848
(1 Dept.1987) (noting the general 404(b) exceptions of motive, intent, absence of mistake or accident, common scheme or plan and identity, the court admitted prior bad acts evidence to show the defendant's amorous design);
State v. Thomas,
310 N.C. 369
,
312 S.E.2d 458
(1984) (identity and in response to defense alibi);
State v. Jackson,
82 Ohio App. 318
,
81 N.E.2d 546
(1948) (motive, passion, emotion, or degeneracy of same type prompting commission of the offense);
Jett v. State,
525 P.2d 1247
(Okl.Cr.1974) (system or plan characterized by peculiar method of operation);
State v. Wood-son,
551 A.2d 1187
(R.I.1988) (evidence admissible to show design, plan, or scheme; also admissible to show defendant's lewd disposition or intent if it is reasonably necessary to show a material aspect of the case);
State v. Loop,
422 N.W.2d 420
(S.D.1988) (motive, intent, opportunity, plan, preparation, knowledge, absence of mistake or accident, or tending to show acts constituting continuous offenses);
Turner v. State,
754 S.W.2d 668
(Tex.Cr.App.1988) (citing
Albrecht v. State,
486 S.W.2d 97
(Tex.Cr.App. 1972), the court listed several common exceptions to the general rule prohibiting admission of extraneous offenses: evidence of extraneous offenses committed by accused has been held admissible: (1) to show the
context
in which the criminal act occurred — res gestae — under the reasoning that events do not occur in a vacuum and the jury has the right to hear what occurred immediately before and after commission of the act so that they may realistically evaluate the evidence; (2) to circumstantially prove
identity
where the state lacks direct evidence on the issue; (3) to prove
scienter,
where intent or guilty knowledge is an essential element of the state’s case and cannot be inferred from the act itself; (4) to prove
malice
or
state of mind,
when malice is essential and cannot be inferred from the criminal act; (5) to show
motive,
where the commission of the offense is either conditioned upon commission of extraneous offenses or is part of a continuing plan or scheme with the charged crime; and (6) to refute defense theories raised by the defendant. The court noted that while this list is not exhaustive, rote application of the exceptions should be avoided and an in-depth analysis of the probative value of the evidence should be performed in every case.);
State
v.
Hurley,
150 Vt. 165
,
552 A.2d 382
(1988) (citing
Elliott,
the court noted that although evidence of prior bad acts is admissible under the exceptions in V.R.E. 404(b) to show
modus operandi,
or consistency and similarity of plan or pattern, in this case a time lapse of ten to twelve years operated to make relevance of the prior acts not available; but Cf.
State
v.
Parker,
149 Vt. 393
,
545 A.2d 512
(1988) (probative value of defendant’s prior sexual assault on another male juvenile, although remote in time, was highly significant in its tendency to establish motive, plan, opportunity, intent, preparation);
State v. Schut,
71 Wash.2d 400
,
429 P.2d 126
(1967) (evidence of prior acts with victim admissible to show lustful inclination);
State v. Mink,
146 Wis.2d 1
,
429 N.W.2d 99
(App.1988) (noting the greater latitude of admissibility of prior bad acts in the context of sex crimes with a minor, the court permitted evidence to show motive and to corroborate the victim’s testimony against a credibility attack by the defense).