HSC: Evidence of prior Sexual Relations Relevant to show Opportunity to Engage in the Charged Conduct in Sex Assault Trial

State v. Behrendt (HSC August 19, 2010)

Background. Robert Behrendt was charged with three counts of sexual assault in the first degree and one count of kidnapping. The sex assault charges stem from three incidents of alleged sexual contact with Behrendt and SI, a minor under the age of 16. SI grew up in Kona and moved to live with her sister, LI, and LI's husband, Behrendt, in South Dakota, when she was 11. The circuit court allowed SI and LI to testify about instances of sexual contact between SI and Behrendt that allegedly took place in South Dakota and Washington State. The circuit court allowed this evidence as HRE Rule 404(b) evidence establishing a motive, opportunity, and plan. At the end of trial, the circuit court provided a limiting instruction for the evidence of sexual contact on the mainland.

The circuit court also provided instructions for sexual assault in the third degree as a lesser-included offense. Behrendt did not object to its inclusion, but objected on the grounds that the instruction did not properly assert the state of mind. During deliberations, the jury asked the circuit court "[w]hat purpose do we put to the evidence and testimony from S. Dakota?" The circuit court directed the jury back to its limiting instruction. The jury found Behrendt guilty of three counts of the lesser-included offense of sexual assault in the third degree and one count of the lesser-included offense of unlawful imprisonment. The circuit court sentenced Behrendt to five years prison. Behrendt appealed. The ICA affirmed in part, but remanded the case for a new trial on the grounds that the circuit court failed to define "sexual contact" for sexual assault in the third degree.

Prior Bad Acts Admissible when Related to a Relevant Purpose Other than Propensity or Bad Character and can Withstand 403 Scrutiny. Evidence of bad acts "is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident." Hawai'i Rules of Evidence Rule 404(b). The list is not exhaustive. State v. Clark, 83 Hawai'i 289, 300-01, 926 P.2d 194, 205-06 (1996). Even if the non-propensity purpose is a fact of consequence, the trial court must still determine whether 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." HRE Rule 403; State v. Castro, 69 Haw. 633, 643, 756 P.2d 1033, 1041 (1988).

Prior Sexual Contacts Relevant to Show Opportunity to Engage in the Offense Conduct Without Being Reported. According to the HSC, the first count of sexual assault occurred in Kona. The count is based on evidence that Behrendt and SI had intercourse in SI's bed. According to the HSC, the evidence of prior sexual contact on the mainland "is relevant to establish Behrendt's opportunity to engage in the sexual contacts in Hawai[']i without being detected. . . . Absent that evidence, it would be implausible that Behrendt could suddenly engage in sexual intercourse with SI in a house they shared with her family while SI's sister slept in the same bed, without SI reporting it." The HSC also pointed out that there was an evidentiary foundation for the evidence. The expert testimony and the testimony of SI established that by the time SI returned to Hawai'i, she had become acclimated to the sexual contact and had a sexual relationship with Behrendt. This was the proper foundation for the 404(b) evidence. The HSC emphasized that "this is not a situation where the state offered a pretextual reason for the admission of the evidence, but in fact appeared to be using it to establish the bad character of the defendant." See State v. Fetelee, 117 Hawai'i 53, 82-85, 175 P.3d 709, 738-41 (2008).

But what about 403? The HSC held that the circuit court did not abuse its discretion in determining that the probative value was not outweighed by prejudice. In examining the prejudicial effect of 404(b) evidence, the court must examine certain factors:

the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.

State v. Renon, 73 Haw. 23, 38, 828 P.2d 1266, 1273 (1992). According to the HSC, these factors cut in favor of admitting the evidence.

First, the strength of the evidence "is essentially the same as" evidence of the charged conduct. Second, the conduct is essentially the same too and there was little time between the 404(b) evidence and the charged conduct. There was also a need for the evidence, which is considered an important factor, State v. Clark, 83 Hawai'i at 303, 926 P.2d at 208, because without the evidence of prior sexual conduct in South Dakota and Washington, the jury would be left with the impression that the first sexual encounters took place in Kona. The jury would not know that the sexual contact escalated to a complete sexual relationship. Finally, the HSC held that it was not likely to rouse the jury's hostility. The 404(b) is essentially the same kind of conduct as the charged conduct; albeit SI was younger and it happened more frequently. The HSC also noted that there was little chance of juror confusion since the circuit court provided a limiting instruction and referred the jury back to that instruction when it sought clarification.

There was Sufficient Evidence for the Lesser-Included Sexual Offenses. The HSC rejected Behrendt's argument that there was insufficient evidence for the lesser-included offenses. "[I]n the absence of [] a rational basis in the evidence, the trial court should not instruct the jury as to included offenses[.]" State v. Kinnane, 79 Hawai'i 46, 49, 987 P.2d 973, 976 (1995). Behrendt argued that the evidence showed only repeated instances of "sexual penetration." Sexual assault in the third degree, however, calls for "sexual contact" rather than "sexual penetration." HRS § 707-732(1)(c). "Sexual contact" includes "any touching . . . of the sexual or other intimate parts of a person not married to the actor, or of the sexual or other intimate parts of the actor by the person, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts." HRS § 707-700. The HSC held that there was sufficient evidence establishing "sexual contact." In fact, the HSC stated although there was evidence that "would support a conviction for sexual assault in the first degree, a rational juror could have inferred that there was 'sexual contact' prior to the penetration[.]"

Justice Acoba's Dissent. Justice Acoba believed that the evidence of sexual relations on the mainland should not have been admitted. Justice Acoba essentially cited the same authorities as the majority on this issue of HRE Rules 404(b) and 403, but arrived at a much different conclusion. Justice Acoba wrote that the admission of the "prior bad acts was nothing more than evidence used to show that [Behrendt] was a person of bad character. The testimony was admitted to establish that [Behrendt] had sexual relations with complainant prior to moving to Hawai'i, but was probative of nothing more than that fact." This allowed the jury to infer that Behrendt was "predisposed to commit the offenses with which he was charged by placing before it evidence of prior incidents without establishing that the prior acts were probative of some other fact of consequence." It "permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened." Commentary to HRE Rule 404. Justice Acoba also pointed out that the majority concluded that the 404(b) evidence showed an opportunity, but the circuit court instructed the jury to consider it for opportunity, motive, and plan. The evidence was not relevant to establishing motive or plan so, wrote Justice Acoba, it is possible that the jury could have erroneously viewed the evidence.

As for the purpose of establishing opportunity, Justice Acoba wrote that there was sufficient evidence establishing a submissive sexual relationship taking place in Hawai'i without needing the evidence from the mainland. Moreover, even if the evidence was able to withstand 404(b) purposes, it still could not get past HRE Rule 403. Justice Acoba believed that the "majority overstate[d] the need for the evidence and disregard[ed] the substantial prejudice in admitting such evidence." One of the factors in 403 balancing that was not mentioned by the majority was "the efficacy of alternative proof[.]" State v. Pineiro, 70 Haw. 509, 518, 778 P.2d 704, 711 (1989). Justice Acoba wrote that "the evidence relating to acts in Hawai'i was far more effective in explaining [Behrendt's] ability to commit the charged offenses." The Hawai'i evidence is far superior to evidence of prior sexual relations on the mainland because it related directly to the purported 404(b) purpose: opportunity to commit the offense. That alternative--believed Justice Acoba--was far less likely to rouse juror hostility too and it was far less likely to confuse the issues at trial.

Justice Acoba: Sexual Contact Cannot be Inferred from Evidence of Penetration, but there was Enough to Provide the Instructions for the Lesser-Included Offenses. Justice Acoba agreed that there was a rational basis for the lesser-included offenses because SI testified that she engaged in sexual contact other than sexual penetration. It was wrong, wrote Justice Acoba, for the majority to hold that sexual contact can be inferred from the same evidence of sexual penetration. A guilty verdict for the lesser-included offense is an acquittal for the greater offense. See Green v. United States, 355 U.S. 184, 190 (1957). For Justice Acoba, that meant that "the jury's conclusion that [Behrendt] did not penetrate [SI] would preclude it from inferring that sexual contact occurred in the course of penetration." In reviewing the record, however, there was some evidence of "sexual contact" thereby establishing the rational basis for the instruction.


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