Severance Was Improperly Denied Where Evidence of Serious Crimes Dwarfed Evidence of Joined Misdemeanor Offenses

 

Alexander Hughes v. United States (decided December 15, 2016).

Players: Associate Judges Glickman and McLeese, Senior Judge Reid. Opinion by Senior Judge Reid.  Jason Kalafat for Mr. Hughes. Trial judge: John Ramsey Johnson.

Facts:  Mr. Hughes was indicted on twenty-six charges arising out of alleged long-term sexual abuse of three supervisees.  Six counts involved complainants Ms. Sanchez and Ms. Mohamud.  These were all misdemeanor charges arising out of incidents in which Mr. Hughes allegedly hit both women on the buttocks with wet towels, attempted to touch Ms. Sanchez’s breast, and threw bleach on Ms. Mohamud’s clothed buttocks.  The remaining twenty counts involved complainant Ms. Lopez.  These included misdemeanors similar to the others, but also first and second degree sexual assault and kidnapping charges arising out of repeated instances of forced anal and oral penetration, some accomplished via physical force and others via threats of firing.  All of the charged incidents occurred at the workplace where the appellant and three complainants worked together in food service. 

The trial court denied a pretrial motion to sever the charges relating to Ms. Lopez from those relating to the other two complainants, ruling that all of the offenses were mutually admissible under Toliver and Johnson, as context to help explain why the women did not report the alleged abuse sooner.  All three women thereafter testified at trial, describing a work environment in which Mr. Hughes routinely harassed and assaulted his female supervisees.  The prosecution also presented DNA evidence corroborating the more serious sexual assault charges relating to Ms. Lopez.  The defense theory was that the buttocks hitting and other minor incidents were consensual “horseplay” and that Ms. Lopez had fabricated the serious assaults.  Mr. Hughes was convicted of fourteen counts, including many of the serious and misdemeanor counts relating to Ms. Lopez, one count relating to Ms. Sanchez, and all three counts relating to Ms. Mohamud.

Issue: Did the trial court err in denying the motion for severance?

Holding: Yes.  The Court held that Mr. Hughes’s harassing and assaultive acts against each of the complainants were “inextricably linked,” as required for admission under Toliver.  The evidence of serious sexual assaults against Ms. Lopez, however, would have been so unduly prejudicial at a separate trial on the Ms. Sanchez and Ms. Mohamud misdemeanors that it could not be deemed mutually admissible.  The Court explained:  “In a case where a defendant is being tried for far less serious conduct, such as the misdemeanor offenses at issue in this case . . . the prejudicial effect of introducing evidence of graphic and far more serious other crimes can dwarf any legitimate value the evidence might have.”  Op. at 28 (citation and alteration omitted).  Here, this risk that the jury’s guilty verdicts for the charges relating to Ms. Sanchez and Ms. Mohamud were based on an impermissible propensity inference from the serious evidence relating to Ms. Lopez was serious enough to meet the requirement for reversal based on the erroneous denial of severance:  “the most compelling prejudice from which the trial court would be unable to afford protection” (Op. at 26-27).   Accordingly, the Court reversed the convictions related to Ms. Sanchez and Ms. Mohamud.  Finding no corresponding risk that evidence of the relatively minor Ms. Sanchez and Ms. Mohamud incidents would have been unduly prejudicial in a separate trial on the assaults against Ms. Lopez, the Court affirmed the convictions relating to conduct against Ms. Lopez.

 

Of Note:  

• The Court rejected appellant’s argument that Toliver only provides for the admission of uncharged other crimes evidence.  Whether charged or uncharged, the pertinent admissibility question under Toliver is whether the evidence is so “inextricably linked” to the charged offense that the latter “is not clearly explainable to the jury without the evidence” of the other crime.  Op. at 25.

• The trial court held, and the government argued on appeal, that the various offenses were also mutually admissible under Drew.  The Court of Appeals deemed it unnecessary to address this issue.

• The Court rejected appellant’s sufficiency challenges.  In particular, it found sufficient evidence that Ms. Lopez was reasonable in fearing she would be fired if she refused to perform the sexual acts at issue in the second degree sexual abuse charges, and held that the fact she sometimes laughed when Mr. Hughes hit her on the buttocks did not negate other evidence indicating such contacts were unwanted.  FT.

Read full opinion here.