Criminal
Jul. 26, 2002
Girls From Past Molestation Case May Testify
LOS ANGELES - The two young girls that Alejandro Avila was acquitted of molesting two years ago can be brought in to testify in the alleged murderer's current trial, criminal law experts said Wednesday.
Avila is charged with the murder, kidnapping and child molestation of 5-year-old Samantha Runnion in Orange County. In 2000, he was acquitted of molesting two 10-year-old girls, one of whom reportedly lived in a condominium near Runnion.
A special evidence rule for sex-crime trials, enacted by the state Legislature in 1995, will apply to Avila's case and probably bring those allegations back to haunt him, experts said.
The sex-crime evidence rule lets prosecutors in many cases introduce evidence about past sexual "bad acts" - even if a jury had acquitted a defendant of the older sex crime.
"If it's being offered to show intent - in other words, a lewd intent, a sexual intent - it can be offered for that. And there's no requirement that there be a conviction," said Los Angeles Deputy District Attorney Lydia Bodin.
And although a previous jury had at least a reasonable doubt that Avila molested the two previous children, prosecutors in the current case essentially will get a second chance to convince a jury that the incidents happened. Because of double jeopardy, Avila cannot be recharged with the crimes.
Under the sex-crimes evidence section, the prosecutors don't need to prove that the incidents happened beyond a reasonable doubt in order to use the girls' testimony to try and show past sexual misconduct.
"The idea of the admission of evidence ... for which a suspect or a defendant has been previously acquitted, on the face of it seems curious if not totally unfair," Southwestern University Criminal law professor Norman Garland said. "But the Supreme Court of the United States as well as courts of many other jurisdictions have consistently found that the higher standard of guilt or proof in a criminal trial does not preclude the prosecution from using relevant admissible evidence that a person did an act, when that act tends to support a charged crime."
Under the sex-crimes evidence section, 1108, the rules are less strict than for other types of crimes.
"Whereas you can't prove that once a thief always a thief, you can prove once a sexual offender, always a sexual offender," Garland said.
Normally, testimony of past bad actions would be inadmissible in court, because proving someone is essentially a bad person does not prove he or she has committed a specific crime.
But in sex-crime cases, past sexual offenses are admissible to the jury, unless the judge decides they are too prejudicial.
Bodin said the sexual evidence must connect in some way to the defendant's current charges.
"There would have to be some nexus shown," Bodin said. "If the issue is, This is a person who has a sexual preference and has a sexual intent toward little girls, there you have it. There's your nexus."
In cases that don't involve a sex crime, the link between the evidence of past wrongdoing and the current charges would have to be stronger. But in sex-crime cases, the evidence can be just generally relevant.
"It actually doesn't have to be that similar; it just has to be a sex crime," Garland said.
Several defendants, including Charles Falsetta, a convicted rapist who said the evidence rule violated his federal due process rights, challenged the 1995 change to the evidence. But in November 1999, the California Supreme Court unanimously upheld the evidence law. People v. Falsetta, 1999 DJDAR 11175 (Cal. November 1999).
Experts said that, in order to introduce the evidence, the two girls likely would be brought in to testify at Avila's trial.
"If they're going to go after him using the previous acquittal, they're going to have to bring in witnesses from that case, because those witnesses are going to have to be cross-examined," criminal defense attorney Charles Lindner said.
Katherine Gaidos
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