United States v. Mann

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 27 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 99-2013

DAVID KEE MANN,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D. Ct. No. CR-94-732-LH)

Judith A. Rosenstein, Assistant Federal Public Defender, Albuquerque, New
Mexico, appearing for Appellant.

Kathleen Bliss, Assistant United States Attorney (John J. Kelly, United States
Attorney, with her on the brief), Office of the United States Attorney,
Albuquerque, New Mexico, appearing for Appellee.

Before TACHA , McWILLIAMS , and EBEL , Circuit Judges.

TACHA , Circuit Judge.
A jury acquitted David Kee Mann on one count of aggravated sexual abuse

and convicted him on another similar count. During the trial, the court allowed

R.K. to testify pursuant to Federal Rule of Evidence 414. On appeal, defendant

argued that the trial court should have excluded R.K.’s testimony because, inter

alia, its probative value was substantially outweighed by its prejudicial effect

under the balancing test set forth in Federal Rule of Evidence 403. We concluded

that the district court’s explanation of its decision to admit the Rule 414 evidence

was insufficient for our review. United States v. Mann , No. 96-2283, 1998 WL

171845, at *2 (10th Cir. Apr. 13, 1998). Therefore, we remanded this case for the

district court to explain its Rule 403 ruling in detail. Id. Defendant now appeals

from the district court’s thorough decision on remand that the Rule 414 evidence

was properly admitted pursuant to Rule 403. We exercise jurisdiction under 28

U.S.C. § 1291 and affirm.

We review the admission of Rule 414 evidence for an abuse of discretion.

United States v. Castillo , 140 F.3d 874, 884 (10th Cir. 1998). Rule 414(a)

permits a court, in a criminal case, to admit evidence against a defendant accused

of child molestation which shows that the defendant has committed another child

molestation offense. Under Rule 403, however, a court must exclude Rule 414

evidence “if its probative value is substantially outweighed by the danger of

unfair prejudice.” “[C]ourts are to ‘liberally’ admit evidence of prior uncharged

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sex offenses,” but cannot ignore the balancing requirement of Rule 403. United

States v. Meacham , 115 F.3d 1488, 1492 (10th Cir. 1997).

In the sexual assault context, Rule 403 requires district courts to consider

the following factors:

“1) how clearly the prior act has been proved; 2) how probative
the evidence is of the material fact it is admitted to prove; 3)
how seriously disputed the material fact is; and 4) whether the
government can avail itself of any less prejudicial evidence.
When analyzing the probative dangers, a court considers:
1) how likely is it such evidence will contribute to an
improperly-based jury verdict; 2) the extent to which such
evidence will distract the jury from the central issues of the
trial; and 3) how time consuming it will be to prove the
prior conduct.”

United States v. Enjady , 134 F.3d 1427, 1433 (10th Cir. 1998) (quoting Mark A.

Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 Am. Crim.

L. Rev. 57, 59 n.16 (1995)). Based upon our review of the record, we hold that

the district court properly applied these factors and did not abuse its discretion

under Rule 403 in permitting R.K. to testify.

The first Enjady factor requires the district court to “make a preliminary

finding that a jury could reasonably find by a preponderance of the evidence that

the [prior similar sexual act] occurred.” Id. In this case, the district court found

that R.K. was a credible witness and the government had sufficiently proved

defendant’s sexual contact with her, even though her initial statements about

defendant’s prior acts were inconsistent. The district court noted that the trial

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record was replete with references to defendant’s prominent position in R.K.’s

community, which explained R.K.’s reluctance to identify defendant as a

pedophile and accounted for her inconsistent stories. Furthermore, R.K. testified

on direct examination that when she was six or seven years old defendant began

to touch her breasts and vaginal area and eventually had sexual intercourse with

her.

In addition, the district court correctly found that the trial transcripts did

not support defendant’s position that R.K.’s mother somehow forced R.K. to

accuse defendant. Thus, the district court did not abuse its discretion in finding

that the government had sufficiently proved the prior similar sexual acts.

The second Enjady factor requires Rule 414 evidence to be probative of the

material fact it is admitted to prove. Uncharged prior sexual acts are probative if

they are similar to the charged crimes. See United States v. Guardia , 135 F.3d

1326, 1331 (10th Cir. 1998) (citing United States v. Edwards , 69 F.3d 419, 436

(10th Cir. 1995). In this case, the government offered R.K.’s testimony to

demonstrate defendant’s propensity to sexually abuse his young great nieces. As

the district court found, the similarities between the prior acts and the charged

acts are substantial. Defendant was charged with two counts of aggravated sexual

abuse against S.Y. and K.C. The district court noted that (1) S.Y., K.C. and R.K.

are all defendant’s great nieces; (2) all three of the girls lived on or regularly

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came within close physical proximity to defendant’s property during the time of

the alleged abuse; (3) defendant allegedly began to abuse each of the girls when

they were approximately the same age; and (4) defendant allegedly had vaginal

intercourse with each child. Given these similarities, the district court did not

abuse its discretion in finding that R.K.’s testimony was highly probative of the

material fact it was admitted to prove.

Furthermore, we note that R.K. was seventeen at the time of trial, while

S.Y. and K.C. were much younger. Thus, R.K.’s age at the time she testified

significantly increased the probative value of her testimony.

The third Enjady factor requires the district court to evaluate the

seriousness of the dispute over the material fact the Rule 414 evidence is admitted

to prove. In this case, there was no question that defendant disputed R.K.’s

allegations and denied all of the charges against him. However, the district court

refused to exclude R.K.’s testimony based solely on this factor. We find that the

district court did not abuse its discretion in so doing because the Enjady test

requires trial courts to balance several factors and no single factor is dispositive.

The fourth Enjady factor requires the district court to determine whether

the government can avail itself of any less prejudicial evidence. According to the

government, R.K.’s testimony tended to show that defendant (1) wanted to engage

in sexual acts, including vaginal intercourse, with girls around the ages of the

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charged offense victims; (2) regarded his great nieces as suitable objects of his

sexual aggression; and (3) lacked effective inhibitions to control this aggression.

We agree with the district court that nothing in the record suggests the

government had access to any less prejudicial evidence on these issues.

The final Enjady factor requires trial courts to assess the “probative

dangers” associated with the Rule 414 evidence. As the district court found, the

record in this case demonstrates that R.K.’s testimony created no danger of unfair

prejudice. The jury convicted defendant on the charges involving S.Y., but

acquitted him on the charges involving K.C. Thus, we agree that R.K.’s

testimony did not cause the jury to improperly convict defendant based on his

prior uncharged sexual abuse of R.K. or distract the jury from the central issues

of the trial.

We find that the district court properly applied the Enjady factors and

explained adequately the basis for its decision to admit R.K.’s testimony.

AFFIRMED .