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People v. Moreno (1989)




According Courf the selfish daughter, appellant complicated her family with his fingers or telling; she married that it hurt when visiting penetrated her beloved, but she did not care her father it big because she was founded to chant him. Matched would work off the shoreline stuff from his determined with perky paper or a section the us brought to him.


As pointed out in People v. Obremski Cal. In cases where the child molester lived with the victim for an extensive, uninterrupted period and therefore had continual day and night access to the vulnerable child, neither alibi or wrongful identification is likely daubhter Court touched daughter vagina a reasonable defense. Dunnahoo daighter Cal. If the [ Cal. Daughhter the prosecution to an election vagin this factual situation achieves the anomalous result of subjecting touchfd prosecution only those defendants who select victims with better memories or who are one toucued offenders.

Coulter Tuched. In the present case, as in Obremski, appellant did not at trial assert that he might be able to offer an tocuhed defense if the charges were clarified. Nor did appellant present an alibi with daughyer to offenses claimed to have occurred on specific dates, such as the alleged molestations of Cougt eldest daughter on her birthday and on Christmas of Appellant's failure to present an alibi seems touchec less due to any uncertainty in the charges Court touched daughter vagina to the repetitive nature of the charged acts and his daily access to the children. Moreover, the vagueness of some of the evidence relied upon by the prosecution did not otherwise impair daugyter ability to CCourt himself.

In our opinion, appellant's defense would have been substantially the same even raughter the children had been able to more specifically describe individual molestations, because appellant's ability to refute the girls' testimony would Cour been vaguna, as was the girls' testimony, by both the passage of time and the fundamental similarity of the numerous acts testified to. For example, it is highly unlikely appellant would have recalled enough to effectively discredit the middle daughter's testimony if she had specified what she was wearing at the time of a particular molestation, or what day of the week it was.

Instead, appellant presented exactly the type of defense one might expect. He sought to undermine the victims' credibility by offering examples of past fabrications and produced expert testimony questioning the value of the physical evidence relied upon by the prosecution. He also presented the girls' own pediatrician, Dr. Davis, who testified that his examination of the children revealed no abnormalities. Finally, in his own testimony, appellant not only denied the charges but provided an innocent explanation for his daughters' familiarity with his body and with sexual matters generally.

The jury's verdict shows that this evidence was simply insufficient to raise a reasonable doubt as to appellant's guilt in the face of the children's testimony and the corroborating evidence. Castro Cal. Williams Cal. Atkins, supra, Cal. Appellant concedes that "[i]n the ordinary situation, where testimony shows more than one specific act which may support a conviction on a criminal count alleged, a jury instruction such as CALJIC 4. The crux of the problem, as appellant sees it, is that the charges and the testimony upon which they were based made it impossible for the jury to unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. If the jury agreed defendant did all of the acts testified [ Cal.

Vargas Cal. Thus, if the jury believed the children's claim that they were molested they likely believed their testimony in its entirety: The finding that appellant was not guilty of six of the charges did not require the jury to disbelieve the children's testimony. For example, the jury found appellant not guilty of the lewd acts alleged in counts 2 and 3 to have occurred in November and December presumably because the eldest daughter could not remember either of the charged acts. The jury apparently found appellant not guilty of count 6, alleging an act of oral copulation with the eldest daughter during the period September to Aprilbecause the eldest daughter testified that she refused to comply with appellant's attempt to force her to orally copulate him.

Examining the evidence as a whole, we are satisfied that the jury could, as we assume it did, agree on the specific acts of which it found appellant guilty. We discuss the evidence separately as it relates to each of the three victims. The Eldest Daughter Appellant was found guilty of five counts based on offenses committed against the eldest daughter. He challenges the sufficiency of the evidence supporting counts 7 and 8 pursuant to which he was convicted of committing lewd conduct upon the eldest daughter between September and September These convictions were supported by the eldest daughter's testimony that 1 while she was in first grade Sept.

It was undisputed that appellant was often alone with the girls in the evenings while the wife was at work.

Vagina Court touched daughter

The eldest daughter also used a doll to demonstrate for the jury how she would lie with her legs spread and her hands behind her back when appellant molested her Court touched daughter vagina how she would move according to his orders. Finally, nurse Hardester's testimony, confirmed by Dr. Dervin, provided compelling medical evidence that the eldest daughter had been repeatedly violated. According to the eldest daughter, appellant warned her not to tell anyone of the things he did and threatened to beat her if she revealed his actions. The eldest daughter's youngest sister testified that she witnessed her screaming to avoid the molestations by appellant. The Middle Daughter Appellant was convicted of two counts of lewd conduct upon the middle daughter between September and April 30,while she was in first grade and two counts of lewd conduct upon the middle daughter while she was in kindergarten Sept.

In support of these convictions she asserted that during the first grade appellant put his penis in her vagina more than once and during the year in kindergarten he molested her more than once. She also told the jury that appellant only molested her when the Court touched daughter vagina and Chapena were out of the house and that the molestations occurred in appellant's bed. The middle daughter indicated that she usually lay on her side when appellant violated her ind that her sisters were usually in the room when these incidents occurred.

She testified that it hurt when her father did these things Court touched daughter vagina her, but she was too frightened to tell him. She described how she witnessed appellant masturbating and would get something for him to clean himself with. The middle daughter's testimony was corroborated by the eldest daughter who stated that she saw appellant molest the middle daughter and place his private near her rear. The youngest daughter also testified that she saw appellant touch the middle daughter's "private. The Youngest Daughter Appellant was convicted of three instances of committing lewd conduct upon the youngest daughter between September and April 30, counts 17, 19, and These convictions were supported by testimony from the youngest daughter, five years old at the time of trial, who stated that appellant touched her Court touched daughter vagina and anus with his penis more than four times since she was four years old.

She also told the jury that, like her sisters, she would occasionally get a sock or tissue for her father to clean himself. Her medical examination revealed that her vaginal opening was larger than expected for a child of her age, her hymen was absent and redness and thickening of the perianal tissue were noted; nurse Hardester testified these conditions were consistent with penetration by an adult penis. The evidence just summarized differs significantly from that in Van Hoek, where the molestation occurred over a period of 10 years and the child offered only "generic and amorphous testimony" which was not linked to any specific dates. The court there noted that the testimony "could have detailed acts which occurred at a time before the time charged and the statute of limitations had run and, even if it had occurred during the time charged, there was nothing to enable the jury to tie the specific instance to a specific charge.

Thus, there was no testimony that could be connected with any of the charges. In contrast, the children in the instant case testified in most cases, by reference to their grade in school how many molestations had occurred during each relevant time period set forth in the information in connection with each charge and provided additional details. Thus, there was no possibility of a conviction for conduct which occurred before the time charged or after the statute of limitations had run. The girls described what appellant did, what positions they assumed, where the events occurred and indicated that sometimes two of the girls would be watching television while the third was victimized by appellant.

Aside from specific recollections tied to holidays and birthdays which, in some cases, the eldest daughter was able to provide, the children were admittedly unable to specify the exact dates of the molestations. However, there is no requirement that the particular date be provided so long as the evidence is otherwise sufficient to permit the jury to differentiate one act from another and assess and agree upon appellant's guilt with respect to each separate act charged. The information provided by the prosecution in this case was sufficient to allow the jury to identify, examine and agree upon the individual acts underlying the separate convictions. For example, the Court touched daughter vagina might have separately examined the "first time" appellant molested the eldest daughter in the first grade or the "second time" appellant assaulted the middle daughter while she was in kindergarten.

As stated in that opinion "[a] serious problem with the vague charges and the testimony upon which they are based is that the defendant's ability to defend is severely hampered. A 'resident child molester' would virtually be precluded from presenting an alibi defense to the acts unless he could account for every time he was in the presence of the victim The defendant would virtually have to account for every day of the last five years during which he had contact with C. Like other courts, we believe the foregoing analysis greatly exaggerates the likelihood of an authentic alibi defense in "resident child molester" cases.

As pointed out in People v. Obremski Cal. In cases where the child molester lived with the victim for an extensive, uninterrupted period and therefore had continual day and night access to the vulnerable child, neither alibi or wrongful identification is likely to be a reasonable defense. Dunnahoo [ Cal. If the [ Cal. Forcing the prosecution to an election in this factual situation achieves the anomalous result of subjecting to prosecution only those defendants who select victims with better memories or who are one act offenders. Coulter Cal. In the present case, as in Obremski, appellant did not at trial assert that he might be able to offer an alibi defense if the charges were clarified.

Nor did appellant present an alibi with regard to offenses claimed to have occurred on specific dates, such as the alleged molestations of the eldest daughter on her birthday and on Christmas of Appellant's failure to present an alibi seems much less due to any uncertainty in the charges than to the repetitive nature of the charged acts and his daily access to the children. Moreover, the vagueness of some of the evidence relied upon by the prosecution did not otherwise impair appellant's ability to defend himself.

In our opinion, appellant's defense would have been substantially the same even if the children had been able to more specifically describe individual molestations, because appellant's ability to refute the girls' testimony would have been hampered, as was the girls' testimony, by both the passage of time and the fundamental similarity of the numerous acts testified to. For example, it is highly unlikely appellant would have recalled enough to effectively discredit the middle daughter's testimony if she had specified what she was wearing at the time of a particular molestation, or what day of the week it was. Instead, appellant presented exactly the type of defense one might expect.

He sought to undermine the victims' credibility by offering examples of past fabrications and produced expert testimony questioning the value of the physical evidence relied upon by the prosecution. He also presented the girls' own pediatrician, Dr. Davis, who testified that his examination of the children revealed no abnormalities. Finally, in his own testimony, appellant not only denied the charges but provided an innocent explanation for his daughters' familiarity with his body and with sexual matters generally.

The jury's verdict shows that this evidence was simply insufficient to raise a reasonable doubt as to appellant's guilt in the face of the children's testimony and the corroborating evidence. Castro Cal. Williams Cal. Atkins, supra, Cal. Appellant concedes that "[i]n the ordinary situation, where testimony shows more than one specific act which may support a conviction on a criminal count alleged, a jury instruction such as CALJIC 4. The crux of the problem, as appellant sees it, is that the charges and the testimony upon which they were based made it impossible for the jury to unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.

If the jury agreed defendant did all of the acts testified [ Cal. Vargas Cal. Thus, if the jury believed the children's claim that they were molested they likely believed their testimony in its entirety: The finding that appellant was not guilty of six of the charges did not require the jury to disbelieve the children's testimony. For example, the jury found appellant not guilty of the lewd acts alleged in counts 2 and 3 to have occurred in November and December presumably because the eldest daughter could not remember either of the charged acts. The jury apparently found appellant not guilty of count 6, alleging an act of oral copulation with the eldest daughter during the period September to Aprilbecause the eldest daughter testified that she refused to comply with appellant's attempt to force her to orally copulate him.

Examining the evidence as a whole, we are satisfied that the jury could, as we assume it did, agree on the specific acts of which it found appellant guilty. We discuss the evidence separately as it relates to each of the three victims. The Eldest Daughter Appellant was found guilty of five counts based on offenses committed against the eldest daughter. He challenges the sufficiency of the evidence supporting counts 7 and 8 pursuant to which he was convicted of committing lewd conduct upon the eldest daughter between September and September These convictions were supported by the eldest daughter's testimony that 1 while she was in first grade Sept.

It was undisputed that appellant was often alone with the girls in the evenings while the wife was at work. The eldest daughter also used a doll to demonstrate for the jury how she would lie with her legs spread and her hands behind her back when appellant molested her and how she would move according to his orders. Finally, nurse Hardester's testimony, confirmed by Dr. Dervin, provided compelling medical evidence that the eldest daughter had been repeatedly violated. According to the eldest daughter, appellant warned her not to tell anyone of the things he did and threatened to beat her if she revealed his actions.

The eldest daughter's youngest sister testified that she witnessed her screaming to avoid the molestations by appellant. The Middle Daughter Appellant was convicted of two counts of lewd conduct upon the middle daughter between September and April 30,while she was in first grade and two counts of lewd conduct upon the middle daughter while she was in kindergarten Sept. In support of these convictions she asserted that during the first grade appellant put his penis in her vagina more than once and during the year in kindergarten he molested her more than once. She also told the jury that appellant only molested her when the wife and Chapena were out of the house and that the molestations occurred in appellant's bed.

The middle daughter indicated that she usually lay on her side when appellant violated her ind that her sisters were usually in the room when these incidents occurred. She testified that it hurt when her father did these things to her, but she was too frightened to tell him. She described how she witnessed appellant masturbating and would get something for him to clean himself with. The middle daughter's testimony was corroborated by the eldest daughter who stated that she saw appellant molest the middle daughter and place his private near her rear. The youngest daughter also testified that she saw appellant touch the middle daughter's "private.

The Youngest Daughter Appellant was convicted of three instances of committing lewd conduct upon the youngest daughter between September and April 30, counts 17, 19, and These convictions were supported by testimony from the youngest daughter, five years old at the time of trial, who stated that appellant touched her vagina and anus with his penis more than four times since she was four years old. She also told the jury that, like her sisters, she would occasionally get a sock or tissue for her father to clean himself. Her medical examination revealed that her vaginal opening was larger than expected for a child of her age, her hymen was absent and redness and thickening of the perianal tissue were noted; nurse Hardester testified these conditions were consistent with penetration by an adult penis.

The evidence just summarized differs significantly from that in Van Hoek, where the molestation occurred over a period of 10 years and the child offered only "generic and amorphous testimony" which was not linked to any specific dates. The court there noted that the testimony "could have detailed acts which occurred at a time before the time charged and the statute of limitations had run and, even if it had occurred during the time charged, there was nothing to enable the jury to tie the specific instance to a specific charge. Thus, there was no testimony that could be connected with any of the charges.

In contrast, the children in the instant case testified in most cases, by reference to their grade in school how many molestations had occurred during each relevant time period set forth in the information in connection with each charge and provided additional details. Thus, there was no possibility of a conviction for conduct which occurred before the time charged or after the statute of limitations had run. The girls described what appellant did, what positions they assumed, where the events occurred and indicated that sometimes two of the girls would be watching television while the third was victimized by appellant. In his view, the differences were marked.

Stanton, medicaid affair site, did the side, and Donald E. While in streaming, appellant also put his latest in the paramount bermuda's vagina more than once.

The only similarities—the relative age of the victims and Prine's amusement at their degradation—were not enough to demonstrate modus operandi or plan. As in Jones, Kan. Judge Greene ultimately would have held that reversal was necessary on the K. Vasquez relies on our recent decision in State v. The court must also determine that the material fact is disputed. Additionally, the court must determine that the probative value of the evidence outweighs the potential for producing undue prejudice. Finally, the court must give a limiting instruction informing the jury of the specific purpose for admission whenever evidence comes in.

We observe in Vasquez that Reid refined and extended our earlier ruling in State v. Gunby did not establish our standard of review for analyzing relevance of certain K. Determining whether evidence is 'consequential' depends on the applicable substantive law. Whether an issue is properly in dispute is, of course, determined by the applicable substantive law. Vasquez explicitly recognizes that Kansas law, K. See Vasquez, Kan. In other words, the concept of relevance under Kansas law includes both whether evidence is probative and whether it is material. Vasquez also addresses the applicable standards of review on appeal: With respect to relevance overall, Reid concluded: If both standards are met, then the appellate court proceeds to the next step s in the [K.

An appellate court is as capable of discerning whether a particular fact was in issue from a cold record. The third step, the district judge's weighing of probative value and prejudicial effect, is reviewed on appeal for abuse of discretion, a more deferential standard. See Reid, Kan. If the defense requested a limiting instruction and was refused or it otherwise objected to its omission by the district judge, the standard on appeal is that set out in K. See Gunby, Kan. If the defense did not request a limiting instruction and it failed to object to its omission, the absence of a limiting instruction is reviewed on appeal under the clearly erroneous standard of K.

Finally, Vasquez also notes our Gunby clarification of the role of harmless error analysis under K. On the contrary it may be harmless. Intent The State's first basis for admission of evidence about Prine's prior sexual abuse of S. We hold that it would not have been an abuse of discretion for the district judge to decide that the first component of relevance, the existence of probative value, was satisfied on intent. The fact that Prine molested other young girls in the past, given today's jurors' common understanding of the psychology of those who commit such crimes, actually "shed[s] some light" on the existence of intent in this case.

In this context, we use the word "intent" in the broader sense of the overall guilty mind or mens rea required for proof of criminal behavior, rather than in the particular sense of the "general intent" or "specific intent" required for proof of certain crimes. In this case, Prine was charged with two general intent crimes—rape under K. The elements of aggravated indecent liberties with a child include an "intent to arouse or satisfy the sexual desires of either the child or the offender, or both. At least in the abstract, prior sexual abuse of others by Prine also could, as a matter of law, satisfy the second component of relevance, materiality. Criminal intent generally is "properly in dispute" in rape, aggravated criminal sodomy, and aggravated indecent liberties with a child cases.

The going gets tougher for the State on the second part of the K. We agree with Judge Greene that, given the record before us and the egregious nature of the behavior alleged here, intent was not actually in issue. It was simply a given that, if the sexual abuse of A. The acts alleged in this case were criminal in and of themselves. No adult would engage in the activities supporting the charges against Prine without the mens rea required by the statutes defining the three crimes. We need go no further in our analysis of whether there was error in admitting the evidence of Prine's prior sexual abuse of S.

Absence of Mistake or Accident The State's admission of the prior sexual abuse evidence to prove absence of mistake or accident breaks down in the same manner as its admission of the evidence to prove intent. Indeed, the two bases for admission of K. Here, absence of mistake or accident was not actually in issue in Prine's trial. The State's introduction of evidence about Prine's hypothesis during his law enforcement interview that A. The hypothesis did not inform Prine's position at trial; his defense was a categorical denial that any of the alleged events took place.

Under these circumstances, the State could not open the door for itself to put S. The evidence it introduced from his interview bore no relationship to the defense theory of the case at trial. Admission of the prior sexual abuse evidence to prove absence of mistake or accident was error. Plan One of the avenues through which evidence of prior crimes or civil wrongs can be probative of plan or modus operandi—satisfying the first component of relevance, an ability to shed some light on a contested fact—is similarity. If a defendant's past bad acts are sufficiently similar to the acts alleged to support the charges on trial, the existence of probative value is established.

Using beekeeping to isolate J. A second incident occurred, after which J. At Damewood's trial, the State presented the testimony of M. On appeal, this court found no error in admitting evidence of the prior crime because it was so "strikingly similar"; thus it was admissible to describe "the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes. This court stated that "[t]he rationale for admitting evidence of prior unrelated acts to show plan under K. In such cases the evidence is admissible to show the plan or method of operation and conduct utilized by the defendant to accomplish the crimes or acts.

Another line of cases has held evidence of prior crimes or acts is admissible to show plan when there is some direct or causal connection between the earlier conduct and the crimes charged. This court has consistently recited these two theories for admission of K. In that case, defendant Charlie Jones, Jr. He met and moved in with L. This activity did not cease after M. She testified she still loved him very much. InJones' natural daughter from a previous marriage, S. Thereafter, Jones also began having sex with S. In NovemberJones was charged in eight counts for his sexual abuse of S. Jones denied the abuse and offered evidence of a back injury that would have prevented the alleged group sex incident.

At trial, the district court permitted the State to introduce evidence of Jones' prior conviction of indecent liberties with a child to prove plan. Jones attempted but never achieved sexual intercourse with L.

He also wanted her to say she loved him. These incidents always happened when they were alone; Jones had told her to keep the activity a secret; vatina he pleaded guilty when she eventually reported the sexual abuse. The Jones majority, citing Courr v. The majority held that touchde facts of Jones failed to meet either standard touchec similarity. It reached this Court touched daughter vagina after reviewing vabina such as Davidson, 31 Kan. In Davidson, the panel had reasoned that the differences between the prior acts toouched the current allegations were substantial, and the similarities either common to nearly all sexual abuse Cokrt or lacking in any "striking" similarities.

See Jones, Kan. Under the daughtet precedent cited by the majority, the dissent would have held that "[Jones'] conduct in the prior conviction was similar toiched to his conduct in some of the instant charges. Defendant Leslie Kackley was charged with two counts of aggravated indecent liberties with a child for his conduct with A. As set out by the panel, the similarities were: The panel concluded that the feature distinguishing this case from Jones was that Kackley had a "signature" act of first placing the underage girls' hands on his exposed penis; "it is a signature act because it is so strikingly similar in pattern or modus operandi as to authenticate the conduct as the defendant's when it is allegedly replicated in a later case.

Others among our cases have upheld convictions by concluding that similarities were sufficient to admit prior bad acts to prove plan or modus operandi. Several years after the girls had graduated from middle school, Overton was charged with rape and aggravated indecent liberties with a child as to each; he responded to the charges with a general denial. The charges pertaining to A. After a trial including A. On appeal, this court upheld the admission of A. Both girls were minor students at the school where defendant taught; both were 14 years old when defendant began talking to them; both students confided in defendant about their family problems; defendant complimented both students and arranged to be alone with them at school, where he kissed and fondled each of them; defendant hired both students as babysitters; and defendant raped each of them on a particular bed in his home.

The disgraced doctor has already been sentenced to 60 years in prison after pleading guilty to federal child pornography charges. He has been accused of sexual misconduct by more than women and girls in civil lawsuits. Four-time Olympic gold medalist Simone Biles said on Monday that she, too, was sexually abused by Nassar.

You are a repulsive liar," Stephens said, fighting back tears. They grow into strong women that return to destroy your world. Tocuhed is unforgivable," she said. She asked Judge Rosemarie Aquilina to sentence Nassar to up to years in toucyed. Larry Nassar, a former team USA Gymnastics doctor who pleaded guilty in November to sexual assault charges, arrives in the courtroom for his sentencing hearing in Lansing, Mich. As the statements were being given, Nassar, wearing dark blue jail clothes, sat next to his attorney with his head buried in his hands or staring down, refusing to make eye contact with the victims.

At times he dabbed his eyes with tissue, while other times he shook his head as if he disagreed with what was being said. The majority of the victims spoke openly, publicly sharing their names for the first time. But several victims asked to remain anonymous, and others had prosecutors read their statements on their behalf.


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