Here is the situation. I have an indecency w/ child case going to trial in a few months and I have been pounding my head against the wall in attempting to figure out a way to get in some extraneous conduct. Here are the facts:

Defendant, picks up his grandson who is 12 years old to take him hunting over the weekend. During the trip the victim goes to sleep one night on the couch. The vicitm awakes from sleep while the defendant is carrying him to his, the defendant's bed. The defendant then lays down next to the victim and puts his hand down his boxers and rubs his penis. The victim then pushed the defendant away and went to the next room. A few months after the trip the victim makes the outcry.

In 1986 the Defendant confessed in writing to the police (in another jurisdiction that will not be disclosed) to molesting all four of his daughters. The defendant was never prosecuted for this offense (gurr!).

In his confession from 1986 he states:

"A number of years ago when my oldest daughter **** was about seven or eight years old **** I think she was wearing a little gown and panties **** I dont know why but I put my hands inside her panties and felt of her vagina and put my finger in her vagina."

"With my daughter ****, I have done a great many things. Sometimes I would go into her room and get her out of bed and take her into another room. I knwo that I've felt of her vagina and put my fingers in her vagina, I've also had my mouth on her breast and sucked on them. Also, I'd take her hand and make her feel and rub my penis. I also remember laying with her side by side so that my penis rubbed against her butt. I may have told her pretty harshly not to tell anyone about what happened. It happened a good many times."

And so on with the other two daughters the same story goes. I set out the confession in detail for several reasons: (1) So that you understand my anger that this sorry @#$! wasn't prosecuted when he gave a confession and they had a great case; (2) The #$%! did it again (which the other jurisdiction should have known he would); and most importantly (3) I have to prosecute a much weaker case UNLESS I CAN SOMEHOW GET THIS EVIDENCE IN GUILT/INNOCENCE.

Thats what I'm here for...looking for some help on trying to get the extraneous bad acts in my case in chief. The Defendant won't testify and I'm sure this defense attorney will not open the door. The case law that I have found does not help me in the least bit.

If you have any ideas, suggestions, or case law that helps please respond. I want this arrogant, wealthy 3#$@# to go down for a long time.

In my experience, the only way this type of extraneous evidence might come in is for rebuttal. There is a line of cases (I don't have the cites handy) that suggest that in sex cases extraneous sexual assaults or acts might rebut any number of defensive theories such as accident or mistake, identity or lack of opportunity. In the case of grown victims, extraneous sexual assaults can also come in to rebut a claim that the victim consented to the sexual contact.

These defensive issues can be raised through the aggressive (but not ordinary) cross-examination of the victim or other State's witnesses. Of course, if the defendant were to testify or call witnesses of his own, then defensive claims might be asserted which could open the door.

You didn't mention whether your defendant had given a statement/and or confession. I had a case several years ago (Davis v. State--Beaumont Court of Appeals) where I had prosecuted an aggravated sexual assault involving a grown victim. The defendant admitted in a written statement that he had had sex with the victim but claimed it was consensual. I offered a severely redacted version of his statement including only the portion where he said he had sex with the victim (I had to prove penetration). The defense attorney offered the self-serving remainder of the statement under the rule of optional completeness. The court of appeals upheld the trial judge's decision that the defense, by offering the remainder of his statement, had raised the defensive theory of consent. I was allowed to call two extraneous rape victims (on cases which had not been prosecuted!) to rebut the consent claim. Just be aware that when you try this, you're still going to probably have to have a Rule 403 determination by the judge. Be ready to show how relevant your extraneous offenses are to whatever defensive theory is on the table. There will probably also be a claim of remoteness so there probably needs to be a very high degree of similarity between the facts of the charged offense and any extraneous offenses you want to get into. Bottom line: Better not try to get into it in your own case in chief. Wait on the defense to open the door with some defensive theory and then shoot for rebuttal. Good luck.

It's going to have to come in under Rule 404(b), if at all. The defendant is obviously going to plead not guilty which means that he is going to have some sort of defensive theory. The most likely is that he may have somehow touched the kid without the intent required in the statute. Ok, I carried the kid to bed but had no intent for sexual gratification. Proof of intent is one of the areas in Rule 404(b)when other acts may be admissible. I think that's your best argument and you should be able to find some caselaw allowing other sexual acts for this purpose although I think most of them will deal with prior acts on the same victim (which is now explicitly allowed by statute). Frankly, I don't think you are going to be able to get it in with most judges unless he testifies or offers some evidence that he has never done or never would do such a thing. In other words, opens up his own character. I can see why you would want it but if he remains silent and doesn't open the door I don't see how it comes in.

I went to an Investigating Sexual Assaults of Children Seminar in 2002 (TDCAA sponsored, naturally) the seminar book has SEVERAL great outlines covering this issue loaded with cases to numerous to list here.

Email me and I'll either send you the book itself or copies of the outlines (with permission to copy, of course)

Stacey.brownlee@co.gregg.tx.us

Its been 17 years since your crook confessed to sexually abusing his young daughers, which he said occured some years before. The jurisdiction where this took place may still have several viable cases they could make against him, since the statute of limitations for such crimes is 10 years, and it doesn't start to run until the victim is 18. Even if the statute of limitations has run on those earlier victims, it would be worthwhile to contact them to see if they were violated after age 18--he might have some additional crimes that might be within the statute of limitations.

If there are any viable cases to be made in that county, I'd approach the DA in that district and ask him to prosecute. There may have been "Regime Change" at that DA's office in the last decade and a half, or he may have learned to be more aggressive about taking such cases. A lot can happen in that span of time.

If that jurisdiction indicts your crook, perhaps you can make a united front with that office in some kind of plea offer which will spare your victim having to testify in court.

Keep us posted.