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PD-0366-17 09/13/2017

1. “The Court of Appeals misapplied the standard of review for admission of evidence under Rule 412 and 107 in a manner that so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of the Court of Criminal Appeals’ power of supervision.”

2. “The Court of Appeals’ failure to conduct a proper harm analysis so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of the Court of Criminal Appeals’ power of supervision.”

Ukwuachu was convicted of sexually assaulting an acquaintance in his apartment. The victim messaged a girlfriend from his bathroom, told her she had been raped, and asked her to pick her up. After the victim testified, defense counsel argued that an earlier message exchange between the victim and her friend was admissible under Rule of Evidence 107, the rule of optional completeness. The State objected and requested a hearing on Rule 412, which limits admission of evidence of the victim’s past sexual behavior. The substance of those messages is sealed, but the trial court’s ruling was not. It sustained the State’s objections because the other messages are “separate and distinct conversations.”

Ukwuachu appealed, claiming the messages were admissible under Rules 107 and 412. The court of appeals agreed. It held that “the text messages were part of an ongoing conversation,” “were made immediately prior to the offense and appeared to potentially relate to prior occasions where the victim and Ukwuachu had engaged in some type of sexual conduct.” It found the error harmful, “especially when considered with the other alleged errors in the trial of this cause.”

The State challenges every facet of the analysis. First, the court of appeals should not have reached the Rule 412 issue because the trial court never considered it; it sustained the State’s hearsay objection and so never conducted the required 412 hearing. Second, there is insufficient evidence to overturn the trial court’s stated Rule 107 ruling and the court of appeals did not address whether the other messages were “necessary to explain or allow the trier of fact to fully understand the part offered by the [State].” Third, the court’s conclusion that the messages were admissible under Rule 412 because they “appeared to potentially relate” to past sexual behavior with Ukwuachu all but guarantees the trial court’s ruling was within the zone of reasonable disagreement; a rule designed to protect victims should not be defeated by “apparent potential.” Fourth, both the victim and Ukwuachu agreed there had been no prior sexual contact, removing any ambiguity from the proffered messages. Fifth, the court of appeals considered unanalyzed errors in its harm analysis but not their agreement or the other evidence of forcible sexual assault.

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