State v. Alonzo, ___ N.C. App. __, 819 S.E.2d 584 (Aug. 21, 2018)

In this child sexual assault case, the trial court did not err by finding that the defendant’s proffered testimony was not relevant. The defendant was charged with committing sexual acts on his daughter Sandy while home from the military on compassionate leave. At trial, the defendant attempted to testify that the reason for his compassionate leave was the rape of his other daughter by a neighbor. The defendant argued that his testimony constituted substantive evidence showing that he did not sexually assault the victim during his compassionate leave and would have allowed him to impeach his ex-wife, Ms. Alonzo, who testified that she witnessed the abuse. Specifically, he asserted that his testimony informing the jury of the sexual assault of his other daughter proves that he “would have been sufficiently deterred” from molesting Sandy during that same time period as “Ms. Alonzo [was] watching him like a hawk.” He further asserted that the testimony would “discredit[] Ms. Alonzo’s testimony” that she saw him sexually assault Sandy, making her explanation for not contacting the police after witnessing his acts “less convincing.” The trial court excluded the testimony under Rules 401 and 403.

     The court made swift work of the defendant’s Rule 401 argument, concluding that his proposed testimony does not have a logical tendency to prove that Defendant would not have sexually molested Sandy. The court went on to conclude that even if the testimony was relevant, the trial court did not abuse its discretion in excluding it under Rule 403. The court explained: “The testimony concerning the sexual assault of another child by an unrelated, third-party had the potential to confuse the jury, outweighing any probative value.”

     The court also rejected the defendant’s argument that his testimony could have been used to impeach Ms. Alonzo. Specifically, he argued that because Ms. Alonzo reported the sexual assault of their other daughter by a neighbor, she therefore would have reported any assault she witnessed him commit. Defendant further alleged that because Ms. Alonzo did not file any reports, the jury could have therefore determined there was no sexual assault. The court rejected this argument, concluding: “Ms. Alonzo turning in a neighbor for sexual assault is entirely different, psychologically and emotionally, than turning in her husband. Without an established correlation between turning in neighbors and husbands for sexual assault, Defendant’s proposed testimony does not ‘have a logical tendency to prove’ that Ms. Alonzo was incorrect or untruthful in her testimony.” Moreover, the trial court did not abuse its discretion in excluding this testimony under Rule 403. The court explained: “As previously stated, testimony concerning the sexual assault of another child by an unrelated, third-party had the potential to confuse the jury, outweighing any probative value.”