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Joinder of sexual assault claims and admission of evidence showing change in victim’s personality upheld

State v. John M. Lattimore, 2013AP911-CR, District 4, 9/11/14 (not recommended for publication); case activity

Lattimore was convicted of 2nd-degree sexual assault with use of force and false imprisonment against S.M.  He appealed trial court decisions to: (1) join a count of 3rd-degree sexual assault against a different victim, M.H., to S.M.’s trial, (2) exclude the text of a Facebook message sent by S.M.’s brother to the defendant right after the assault, and (3) admit testimony about S.M.’s personality change after the assault.  He had no luck with the court of appeals.

Joinder of counts against 2 different victims.

The jury found the defendant guilty only on the counts relating to S.M. They acquitted him of the charges relating to M.H.  Ducking the merits of the claim, the court ruled against the defendant based on harmless error:

[W]e do not see how the jury’s not according M.H. testimony credibility on the issue of consent, would have influenced the jury’s weighing of Lattimore’s credibility on the issue of consent as to S.M., except perhaps to Lattimore’s benefit.  Slip op. ¶11.

In sum, we are convinced that in this case, where culpability turned on consent and no third party was present to testify as to consent, and where the jury acquitted Lattimore of the charges involving M.H., M.H.’s testimony did not influence the jury adversely to Lattimore in its consideration of the charges involving S.M. Accordingly, we conclude that any error in joining the S.M. counts with the M.H. count for trial was harmless. Slip op. ¶13.

Admission of Facebook message from S.M.’s brother

While the trial court excluded the actual Facebook message, it did allow counsel to question witnesses about the message and the defendant’s response to it. (The assaults occurred at college; the defendant threatened to have S.M.’s brother banned from campus). That actual message, the court of appeals held, was not relevant to the defense that S.M. was motivated to lie and claim rape based on the defendant’s threat in response to her brother’s Facebook message.

 Admission of evidence of the victim’s post-assault demeanor

 The defendant argued such evidence is irrelevant and only aimed at eliciting the jury’s sympathy. But the court of appeals found it “highly probative of whether S.M. was telling the truth on the issue of consent” and shrugged off its prejudicial effect: “while the evidence regarding changes in S.M.’s demeanor may have made her more sympathetic, the evidence was limited in scope and tone.” Id., ¶30 & 31.

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