State v. Johnson

944 P.2d 869 (1997)

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Nature of the Case

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Facts

P contends that on or about August 25, 1991, D enticed T.A. to enter his car by indicating that he was a law enforcement officer and needed to speak to her; and that on or about October 11, 1992, he offered T.S. a ride, which she accepted. After each woman entered his car, he drove her to a secluded area where he assaulted and raped her. D told the jury during opening statement that D approached each woman believing her to be a prostitute, that each incident was 'a commercial relationship, not forced sex,' and that during the course of 'these acts for which D was paying money, he did things which annoyed, angered and, in some ways, frightened these women.' D filed a motion in limine asking the court to consider the 'admissibility of evidence of the prior sexual conduct of the alleged victims.' P opposed his motion and filed its own motion in limine seeking to preclude evidence 'of any sexual conduct by any victim with any person other than D' and any reference 'to any alleged illicit sexual activity performed by any victim in this case.' In an in camera hearing D elicited from Detective Arbogast evidence that T.A. told him she had not been working as a prostitute when she got into the car with D, but on occasions, in the past, she had engaged in acts of prostitution in order to pay her rent. D argued that this admission went 'to a central issue' and also 'to her credibility.' The trial court denied D's request and granted P's motion. At trial, D attempted to cross-examine T.S. on whether she was frightened while she was with D; he also attempted to ask her whether she had stopped entering cars of strangers. The court sustained P's objection. D admitted that he engaged in acts of sexual intercourse with each woman. He testified that they consented to some acts but not to others. The jury acquitted D on a number of counts, including one that charged him with kidnapping and one that charged him with impersonating a police officer. The jury convicted D of aggravated assault, second-degree criminal penetration, and false imprisonment. The Court of Appeals reversed Defendant's conviction and remanded the case for a new trial on grounds that the evidence in question should have been admitted for the purpose of showing possible motive to fabricate. The Court of Appeals reasoned that Defendant's proffer of evidence 'went beyond an attempt to show that the sexual acts were consensual,' and 'went to the issue of whether the victims had reason to fabricate the rape to avenge Defendant's failure or refusal to pay them.' P appealed.