P. v. MacDougall
Filed 9/13/13
P. v. MacDougall CA4/1
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH
APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE
PEOPLE,
Plaintiff and Respondent,
v.
KYLE
ROBERTSON MACDOUGALL,
Defendant and Appellant.
D062461
(Super. Ct. No. SCD236710)
APPEAL
from a judgment of the Superior Court of
County, Robert F. O'Neill, Judge. Affirmed.
John
L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Seth Friedman and Randall D. Einhorn, Deputy Attorneys
General, for Plaintiff and Respondent.
A
jury convicted Kyle Robertson MacDougall of attempting to rape an unconscious
person, attempting to rape an intoxicated person and assault with intent to
rape. The court sentenced MacDougall to three
years formal probation, including a term of 365 days in county jail. He appeals, contending the trial court erred
when it (1) admitted his out of court statements and (2) excluded
certain photographs of the victim. He
asserts that the cumulative effect of these errors deprived him of
imposing the restitution fines. We
reject his arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
MacDougall
and Rodolfo M. were Marines stationed at Marine Corps Air Station Miramar in San Diego. Rodolfo lived with his girlfriend, Stephanie
S., in a one-bedroom apartment near the base.
On the evening of August 25,
2011, Rodolfo, Stephanie, and Jose Guzman walked to a bar from Rodolfo
and Stephanie's apartment. At the bar,
they were joined by MacDougall and some other people. Stephanie said hello to MacDougall, but did
not otherwise have any conversation with him.
Stephanie
and Guzman became very intoxicated. When
Rodolfo, Stephanie, and Guzman decided to leave the bar, Rodolfo asked
MacDougall how he was going to get home (to the Marine base). MacDougall replied that he was going to walk. Rodolfoasked MacDougall if he wanted to stay
at his apartment because it was not safe for MacDougall to walk to the base
entrance. Rodolfo also asked Stephanie
if MacDougall could stay at their apartment and she agreed. Rodolfo, Stephanie, Guzman, and MacDougall then
walked back to the apartment.
After
arriving at the apartment, Stephanie vomited several times in the
bathroom. Rodolfo took off Stephanie's
clothes and put her in the bathtub with cold water to try and sober her up. After helping Stephanie out of the bathtub, Rodolfo
put her on an air mattress on the bedroom floor and covered her naked body with
a blanket. Rodolfo then put blankets
over MacDougall and Guzman who were sleeping in the living room. Rodolfo lay near Stephanie and fell asleep.
Rodolfo
woke up to the sound of heavy breathing. He saw Stephanie lying on her back with her
arms at her sides and her legs spread apart.
MacDougall was between Stephanie's legs with his face by her breasts. MacDougall was thrusting his hips into Stephanie's
crotch, but Stephanie was not moving or reacting at all. Rodolfo yelled at MacDougall to get off
Stephanie. When MacDougall got up, Rodolfo
saw that MacDougall had an erect penis. Rodolfo
yelled at MacDougall and had him leave.
Rodolfo
shook Stephanie awake, but she fell back asleep. After Rodolfo slapped Stephanie awake, she asked
what was going on. Stephanie cried when Rodolfo
explained that MacDougall was having sex with her. Stephanie dialed 911, but she hung up after Rodolfo
told her it was probably not a good idea to call the police yet because he
wanted to be sure of what he saw before he ruined someone's life. When the 911 dispatcher called back,
Stephanie said that everything was okay. Stephanie was still intoxicated and fell back
asleep.
The
following morning, Rodolfo and Stephanie discussed whether he should report the
incident and whether they should call the police. Rodolfo said he would support whatever
decision she made. Rodolfo went to work
and eventually told Sergeant Thomas Dailey what had happened. Someone called MacDougall over and Rodolfo
angrily confronted him.
After
Rodolfo challenged MacDougall to tell Sergeant Dailey what had happened,
MacDougall replied he had sex with Rodolfo's girlfriend and she was passed out.
Sergeant Dailey asked MacDougall what he
expected to happen when he came to work, and MacDougall replied, "[G]et
hit." Sergeant Dailey recalled that
Rodolfo then hit MacDougall two times on the cheek until he told Rodolfo to
stop.
After
hearing that Rodolfo had reported the incident, Stephanie called 911 and relayed
that she believed she had been raped. A
physical examination of Stephanie revealed areas of redness on her neck and
breast. Stephanie's vaginal area had a
dried white substance present. Stephanie
was quiet and tearful during the examination. DNA swabs were taken from Stephanie's mouth,
vaginal area, breasts, and neck. MacDougall's
DNA was found on Stephanie's right breast. A test done on Stephanie's vaginal area
revealed some injury.
A
San Diego police detective later spoke with MacDougall. MacDougall stated that he did not remember
what happened at the apartment, but doubted his DNA would be in Stephanie. MacDougall said he knew it was not right to
have sex with an unconscious person, but had no memory of having sex with
Stephanie. MacDougall expressed remorse,
but did not know whether he had sex with Stephanie and did not think he had
raped her. MacDougall claimed he was
unable to get an erection when he is " 'blackout drunk.' "
DISCUSSION
I.
Generally,
all relevant evidence is admissible. (
879, 922.) Relevant evidence is that
which has any tendency in reason to prove or disprove any disputed fact
material to the outcome of the case. (Evid.
Code, § 210; undesignated statutory references are to this code.) A trial court has broad discretion in
determining the relevance of evidence, but lacks discretion to admit irrelevant
evidence. (People v. Hamilton (2009) 45 Cal.4th 863, 940.) Nonetheless, even relevant evidence may be
excluded if the trial court finds that its probative value is substantially
outweighed by its prejudicial effect. (
We
review a trial court's ruling on the admissibility of evidence for abuse of
discretion. (People v. Williams (1997) 16 Cal.4th 153, 196–197.) " 'It is . . . well settled that the erroneous admission
or exclusion of evidence does not require reversal except where the error or
errors caused a miscarriage of justice. [Citation.]
"A 'miscarriage of justice' should
be declared only when the court, 'after an examination of the entire cause,
including the evidence,' is of the 'opinion' that it is reasonably probable
that a result more favorable to the appealing party would have been reached in
the absence of the error." [Citations.]'
[Citations.]" (People
v. Fields (2009) 175 Cal.App.4th 1001, 1018.)
II.
A. Background
MacDougall
moved in limine to exclude the statements he made in front of Rodolfo and
Sergeant Dailey, claiming they were the result of coercion and taken in
violation of Article 31 of the Uniform Code of Military Justice. The trial court held a section 402 hearing to
determine the voluntariness of MacDougall's statements, with the court hearing
testimony from MacDougall, Rodolfo and Sergeant Dailey.
MacDougall
testified that after he went outside with Rodolfo, that Rodolfo pushed him up
against a wall and yelled at him for about 20 to 25 minutes. During that time period, Rodolfo threatened
to kill him and MacDougall believed that Rodolfo, who had a black belt in the
martial arts, would kill him. MacDougall
admitted having sex with Stephanie to temporarily defuse the situation. After he made this admission, Sergeant Dailey
asked him what he thought would happen and then Rodolfo hit him several times
until Sergeant Dailey separated the men.
MacDougall claimed that he answered Rodolfo's questions because he was
afraid and because Sergeant Dailey outranked him.
Rodolfo
and Sergeant Dailey's statements regarding the confrontation were fairly
similar to MacDougall's. Sergeant
Dailey, however, testified that he stepped outside about three to five minutes after
Rodolfo and MacDougall had gone outside.
Sergeant Dailey did not hear Rodolfo threaten to kill MacDougall and
claimed that MacDougall did not appear to be afraid.
Based
on the evidence and the totality of the circumstances, the trial court
concluded that MacDougall's statements during the "highly charged"
confrontation were voluntary. It
specifically found that Rodolfo's threat of violence and Sergeant Dailey's rank
did not render the statements involuntary.
B. Analysis
MacDougall
claims the evidence did not support the trial court's finding that his
statements were voluntary. He asserts
that his admissions to Rodolfo and Sergeant Dailey were involuntary because
they were the result of threats, coercion or violence. He contends a due process violation occurred
because Rodolfo and Sergeant Dailey were state actors or agents. He claims that even if Rodolfo and Sergeant
Dailey acted as private parties, that his coerced statements should have been
excluded as involuntary and unreliable.
MacDougall's
arguments rely on his claim that the trial court erred in finding that his
statements were voluntary and not the product of threats, coercion or
violence. As a general matter, we accept
the trial court's resolution of factual issues when it is supported by
substantial evidence, and independently review its legal conclusions. (People
v. Gonzales and Soliz (2011) 52 Cal.4th 254, 284 [alleged violation under
the uncontradicted facts to determine independently whether the trial court's
conclusion of voluntariness was properly found." (Id.
at p. 290.) At first blush,
rule. Critically, however, the evidence
in Berve was "uncontradicted"
(ibid.), which is not the case here.
After
considering the evidence and the circumstances, the trial court found that
MacDougall's statements were voluntary and that military rank was not used to
force his response. Our review of the
testimony of these witnesses shows substantial evidence supported these
findings. Namely, Sergeant Dailey did
not hear Rodolfo threaten to kill MacDougall.
Even assuming Rodolfo had threatened to kill MacDougall, Sergeant Dailey
testified that MacDougall did not appear to be afraid. Other than MacDougall's testimony that he
answered Rodolfo's question "to a degree" because Sergeant Dailey
outranked him, there is absolutely no evidence that Sergeant Dailey used his
position to force MacDougall to answer Rodolfo's questions. Moreover, the trial court found Rodolfo and
Sergeant Dailey's testimony to be credible.
On appeal, we do not reweigh evidence or reevaluate a witness's
credibility. (People v. Nelson (2011) 51 Cal.4th 198, 210.)
Because
the evidence supported the trial court's findings regarding the voluntariness
of MacDougall's statements, we reject his argument that the admission of these
statements resulted in a due process violation.
Even assuming the trial court erred in admitting MacDougall's statement,
that he "had sex" with Stephanie, MacDougall has not shown that the
admission of this evidence prejudiced him whether we review the issue under
836 [whether it is reasonably probable that a result more favorable to the
appellant would result in the absence of the error] or under
18, 24 [whether the error was harmless beyond a reasonable doubt].
Significantly,
the jury found MacDougall not guilty of raping an intoxicated person and not
guilty of raping an unconscious person.
Thus, the jury clearly disbelieved MacDougall's admission to Rodolfo
that he "had sex" with Stephanie.
Rather, the jury found MacDougall guilty of attempting to rape an
intoxicated person, attempting to rape an unconscious person and assault with
intent to commit rape. Rodolfo's
testimony regarding his observations of MacDougall's actions and Stephanie's
condition combined with the physical evidence found on Stephanie,
overwhelmingly supported these findings.
Thus, the assumed error was harmless.
III.
A. Background
MacDougall
moved in limine to admit three photographs taken from Stephanie's Facebook page
about a month after the incident. The
pictures depicted Stephanie, Rodolfo and others at a party where there was
drinking going on. One photograph showed
Stephanie in a group hug where she and another woman were grabbing the breast
of a third woman. Another showed
Stephanie "grinding" her pelvis against Rodolfo's buttocks. The last photograph showed Stephanie "grinding"
her pelvis against another female.
MacDougall
argued that the photographs were relevant to impeach Stephanie regarding the
alleged emotional distress she suffered.
He also argued that the photographs revealed Stephanie's propensity to
rub herself against people in a party setting and could explain why his DNA was
found on Stephanie's breast.
After the
prosecutor and the court viewed the photographs, the court allowed MacDougall
to introduce the photograph depicting Stephanie grinding against the buttocks
of another woman as it related to Stephanie's credibility. It excluded the other photographs as highly
prejudicial, not relevant to the night in question, and potentially confusing
to the jury. It also found that these photographs
did not specifically relate to credibility and raised issues associated with
sexual promiscuity that is prohibited.
During
trial, Rodolfo testified that Stephanie would get "clingy" with him when
intoxicated. When shown the one admitted
photograph, Rodolfo testified that Stephanie was the designated driver on that
evening and was not drinking. He also agreed
that Stephanie was "clinging" on the woman in front of her, but explained
that the woman was Stephanie's best friend who was really drunk and that Stephanie
had just been holding her up before the picture was taken.
MacDougall
asked the court to reconsider the exclusion of the two smaller photographs
because the photo showing Stephanie grabbing the breast of another female
should be admitted as impeachment because she was "clinging" to the
female in that picture. Rodolfo
testified she was not intoxicated when the photo was taken and that she was
only clingy when she was intoxicated. The
court rejected the argument and confirmed its prior ruling to exclude the two
photographs.
B. Analysis
MacDougall
contends the trial court committed prejudicial error by excluding the two
photographs because they were inconsistent with Stephanie's claim that she had
been the victim of an emotionally traumatic sexual assault and they would have
impeached Rodolfo's testimony that Stephanie became "clingy" only
when she was intoxicated. We conclude
the trial court did not abuse its discretion in excluding the photographs under
section 352.
The
photographs had minimal probative value to undermine Stephanie's credibility about
the incident because they were taken weeks after the incident with
MacDougall. This slight probative value
was far outweighed by the prejudice the photographs would have caused to confuse
the issues for the jurors. Contrary to MacDougall's
suggestion, exclusion of the two photographs did not interfere with his
constitutional rights to present a defense or confront the witnesses against
him. MacDougall had a full and complete opportunity
to impeach Stephanie's credibility about the emotional trauma she suffered
based on the photograph that the court admitted. In any event, the erroneous exclusion of
evidence having only slight probative value or on a minor or subsidiary issue
does not violate a defendant's federal constitutional rights. (People
v. Cunningham (2001) 25 Cal.4th 926, 999.)
We deem the emotional trauma suffered by Stephanie to be a secondary
issue as it is not an element of any of the charged crimes.
MacDougall's
argument that the photographs would have impeached Rodolfo's testimony that
Stephanie became "clingy" when she was intoxicated misstates Rodolfo's
testimony. Rodolfo testified at trial
that Stephanie got "clingy" with
him when intoxicated. He never
testified that this only occurred when Stephanie was intoxicated, nor did he
claim that Stephanie never became "clingy" with others while not
intoxicated. Moreover, Rodolfo never
defined what the term "clingy" meant.
We agree with the Attorney General that the impeachment value of the
photograph showing Stephanie in a group hug with four other people where she
and another woman are touching the breast of another woman was minimal. (People
v. Ayala (2000) 23 Cal.4th 225, 301 [" '[T]he latitude section 352 allows for exclusion of
impeachment evidence in individual cases is broad. The statute empowers courts to prevent
criminal trials from degenerating into nitpicking wars of attrition over
collateral credibility issues.' "].)
IV.
MacDougall argues
that the cumulative effect of the alleged errors deprived him of his due
process right to a fair trial. Because
we have rejected his individual arguments on the merits, we conclude the
cumulative error doctrine is inapplicable.
(People v. Watkins (2012) 55
Cal.4th 999, 1036.)
V.
A. Background
MacDougall
committed the offenses in August 2011. At
sentencing, the trial court stated that the restitution fine (Pen. Code, §
1202.4, subd. (b)) and the probation revocation fine (Pen. Code, § 1202.44) would
be $240 each. The probation officer then
noted that the $240 amount only applied to offenses committed after January 1,
2012. Accordingly, the trial court
changed the fines to $200 each. The
order granting probation and the court minutes listed the fine amounts as $200.
B. Analysis
MacDougall
contends that the ex post facto clause requires that the restitution fine and
the parole revocation fine be reduced to $200 each because he committed the
current offenses before January 1, 2012, when the amount of the fines increased
from $200 to $240. Here, there is no ex
post facto violation as the trial court properly imposed $200 fine amounts.
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
