United States v. Preston, No. 15-10521 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit reversed defendant's conviction on two counts of aggravated sexual abuse of a child. The panel held that there were a number of trial errors and, considering that evidence of guilt was not overwhelming, their cumulative effect prejudiced defendant. The trial errors included the following: (1) improper witness testimony that bolstered the victim's credibility and offered opinion on the credibility of sex abuse allegations in general; (2) prejudicial propensity evidence in the form of defendant's ex-wife's testimony regarding a child-incest fantasy defendant allegedly had in 2003; and (3) prosecutorial misconduct, namely: commenting on defendant's decision not to testify, witness vouching, and misstating the evidence in summation. Accordingly, the panel remanded for a new trial.
Court Description: Criminal Law The panel reversed a conviction on two counts of aggravated sexual abuse of a child, and remanded for a new trial. The panel held that the cumulative effect of the following errors rendered the defendant’s trial fundamentally unfair: (1) improper witness testimony that bolstered the alleged victim’s credibility and offered opinion on the credibility of sex abuse allegations in general; (2) prejudicial propensity evidence in the form of the defendant’s ex-wife’s testimony regarding a child-incest fantasy the defendant allegedly had in 2003; and (3) prosecutorial misconduct – namely, commenting on the defendant’s decision not to testify, witness vouching, and misstating the evidence in summation. Concurring, Judge Kozinski joined the majority opinion, including Part III.B, because the district court erred in admitting testimony about the defendant’s masturbation to establish intent, where the government provided no other rationale for introduction of this evidence. Judge Kozinski wrote that in the event of a retrial, he does not read this court’s ruling as precluding the government from identifying a different basis on which to seek admission of the testimony, such as to show that the defendant was sexually aroused by young boys.
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