No Error In Admission of Prior Bad Acts Evidence Under FRE 413, 414

U.S. v. Benally, --- F.3d ----, 2007 WL 2430133 (10th Cir. August 29, 2007)

Fed. R. Evid. 413 and 414 evidence of four earlier sexual abuse incidents properly admitted in trial of grandfather, who was convicted of sexual abuse of his 13 y/o granddaughter. The granddaughter was highly impeachable as a liar, and there was no physical evidence to back up her story. Other children in the hogan at the time, however, corroborated her account to varying degrees.

Two of the four earlier incidents occurred at least 40 years earlier, and the other 2 at least 20 years earlier. In one, the female was 20, in the others, she was 10 to 13 years old. All were family members either by marriage or blood (one was his sister, one was his daughter, the mother of the victim charged in the current case). Two of the cases resulted in a conviction of rape, one in a guilty plea to assault. The trial court followed the analysis outlined in U. S. v. Enjady, 134 F.3d 1427 (10th Cir.1998) and U. S. v. Guardia, 135 F.3d 1325 (10th Cir.1998) in determining admissibility. The 10th found no problem with any of its determinations, and no problem with its 403 balancing. READ THE CASE if you have this issue.