On Appeal from the District Court of the Virgin Islands. (D.C. Criminal No. 91-00110).
Before: Becker, Cowen and Roth, Circuit Judges.
Alan Archibald appeals his conviction on three counts of aggravated rape in violation of V.I. Code Ann. tit. 14, § 1700(a)(1) (Supp. 1990).*fn1 Archibald asserts that the district court committed reversible error by admitting evidence of prior criminal conduct and improper hearsay testimony. We agree and therefore will reverse Archibald's conviction and remand for a new trial.
The alleged victim in this case is Latoya Chinnery. At the time of the events in question, Latoya was ten years of age and living with her aunt, Marlene Chinnery. In October 1991, Marlene Chinnery noticed that the screen from Latoya's bedroom window and several stones were lying on Latoya's bedroom floor. The aunt also found a long curtain rod and a piece of board outside Latoya's bedroom window and stains on Latoya's bedspread.
When confronted by her mother, Ursula Williams, Latoya stated that she had engaged in sexual intercourse with Archibald. Latoya testified that she and Archibald had intercourse on three separate occasions beginning in October 1991. According to Latoya, Archibald would attract her attention at night by throwing rocks at her screen or by knocking on the window. She would let Archibald in through a screen door and have intercourse with him. Archibald would then leave the house. Latoya admitted that she liked Archibald and knew that he was her sister Tasha's boyfriend.
Dr. O.R. Ramos examined Latoya and found that her hymen had been torn. Dr. Ramos testified that Latoya had experienced several penetrations in the past, but did not expressly state whether he believed Latoya had engaged in intercourse. He offered no testimony implicating Archibald.
On direct examination Ursula Williams testified that she knew Archibald because he was a neighbor and because he had fathered the child of her daughter Tasha. She further testified that, at the time of trial, Tasha was fifteen years of age and the child was six months old. Williams' testimony thus revealed that Archibald had engaged in sexual intercourse with Tasha when she was thirteen or fourteen years old.*fn2 Under Virgin Islands law, such intercourse constitutes third degree rape. V.I. Code Ann. tit. 14, § 1703 (Supp. 1990).*fn3
Archibald asserts that evidence of his prior criminal act should have been excluded under Fed. R. Evid. 404(b). Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Archibald argues that the evidence of his sexual relations with Tasha was not probative of any material issue in the case other than to show that he had a propensity to engage in intercourse with underage females. The government offers three arguments in response. First, it suggests that Archibald waived his right to challenge admission of the evidence by failing to make a timely objection. Second, the government argues that Rule 404(b) does not preclude evidence of Archibald's sexual encounter with Tasha because a jury probably would not view the encounter as a bad act. Third, the government asserts that the evidence was admissible under Rule 404(b) because it was introduced to support the in-court identification of Archibald by Williams and Latoya, not to show Archibald's propensity to engage in illicit sex with children. We will address each argument separately.
The government suggests that Archibald failed to preserve his Rule 404(b) objection by not objecting immediately after Williams testified that Archibald fathered Tasha's ...