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Certain Bad Acts Evidence Admissible in Sexual Assault Cases

By Robyn Hagan Cain | Last updated on

Air travel chicanery isn’t limited to celebrity shenanigans like Alec Baldwin's “Words With Friends” episode on an American Airlines flight in December. Real people get in trouble on airplanes, too.

One such person is today’s featured Tenth Circuit Court of Appeals appellant, Alan Johnson. Johnson was convicted on one count of interference with a flight attendant by assault and intimidation and three counts of abusive sexual contact on an aircraft.

On a flight from Chicago to Denver in February 2010, Johnson touched a flight attendant on her buttocks and upper leg, and grabbed a second flight attendant's buttocks on two separate occasions. He also threw a full cup of water at the second flight attendant, and thrust his genitals against a female passenger's buttocks as she exited the airplane bathroom. The passenger had to "wriggle away" to get by him.

(All the time you've dreaded flights with crying children, you should have just been happy you avoided a passenger like this guy.)

At trial, Johnson argued he had a mental illness that prevented him from forming the requisite intent for the sexual contact counts, and that any contact was incidental.

The government responded with evidence that Johnson had engaged in similar acts on three occasions in February 2010, intending to show that the physical contacts at issue were not inadvertent but rather intentional acts designed to arouse or gratify Johnson's sexual desires. The government admitted the evidence under Federal Rules of Evidence 404(b) and 413.

On appeal, Johnson argued to the Tenth Circuit Court of Appeals that the evidence was inadmissible under Rules 404(b) and 413, and unduly prejudicial under Rule 403.

The Tenth Circuit ruled that there was no abuse of discretion in admitting the evidence.

While Rule 404(a) prohibits the admission of evidence for the purpose of showing a defendant's propensity to commit bad acts, Rule 413 specifically allows a court to admit evidence that a defendant charged with sexual assault committed any other sexual assault.

The Tenth Circuit also noted that the court's decision to admit the evidence didn't violate the Rule 403 balancing test, particularly because the court gave the jury a limiting instruction with regard to the prior bad acts evidence.

If you represent a defendant charged with sexual assault, remember that Rule 413 allows the admission of evidence of other sexual assaults.

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