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Description: Tulsa, Oklahoma criminal defense lawyer represented Defendant charged with assault of an intimate or dating partner by strangulation in Indian Country.


On March 9, 2022, a grand jury returned a four-count indictment charging defendant with assault of an intimate or dating partner by strangulation in Indian country, and attempt to do the same (count 1); assault with a dangerous weapon with intent to do bodily harm in Indian country (count 2); carrying, using, and brandishing a firearm during and in relation to a crime of violence (count 3); and being a felon in possession of a firearm and ammunition (count 4). Dkt. # 15.

Plaintiff filed a 404(b) notice of its intent “to offer evidence at trial about prior instances [defendant] strangled [the alleged victim,] M.D., assaulted her with a firearm, and otherwise abused her based on his belief that she was cheating on him.” Dkt. # 42, at 1.

Specifically, plaintiff provides notice of six prior acts: 1) May 2021 strangulation following defendant's accusation that M.D. was cheating on him; 2) June 2021 strangulation and holding a revolver against M.D.'s head; 3) July 2021 strangulation; 4) July-November 2021 “attempting to prevent M.D. from interacting with her male co-workers and accused her of cheating on him . . . regularly threaten[ed] harm . . . [and] physically pushed M.D. around at work”; 5) December 2021 strangulation; and 6) February 3, 2022 strangulation following accusation that M.D. (who was 18 weeks pregnant) was cheating on defendant. Id. at 1-3. Notably, the February 3, 2022 incident took place the day before M.D. “expressed reservations about raising a child with [defendant] given his violent behavior and told him [that] she was considering giving up their unborn child for adoption[,]” which is the exchange that directly preceded the charged offenses on February 4, 2022. Id. at 3.

Plaintiff argues that the February 3, 2022 incident is admissible as res gestae “because it is central to the events that led to the indicted offenses.” Id. at 6. Plaintiff further argues that “[p]rior instances when [defendant] strangled M.D., assaulted her with a firearm, and otherwise abused her because he believed she was cheating on him are admissible to establish motive and intent to commit the charged offenses. Id. at 7. Defendant requests that the Court exclude certain evidence contained in plaintiff's 404(b) notice. Dkt. # 46, at 1. Defendant concedes that should the alleged victim, M.D., “testify in accordance with [plaintiff's] notice” as to the February 3, 2022 incident, that incident is intrinsic to the charged offense. Id. at 3-4. However, defendant argues that the other incidents described in plaintiff's 404(b) notice are either 1) not offered for a proper purpose; 2) not relevant; or 3) their probative value is substantially outweighed by the danger of unfair prejudice. Id. at 4-5.

Rule 404(b) provides, in pertinent part:

Evidence of a crime, wrong or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

...

This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

However, Rule 404(b) does not apply to “other act” evidence which is admitted as proof of the charged conduct; it applies only to evidence of acts extrinsic to the charged crime. United States v. Irving, 665 F.3d 1184, 1212 (10th Cir. 2011). “An uncharged act is admissible as res gestae-intrinsic evidence not subject to [Rule 404(b)]- if ‘it was inextricably intertwined with the charged crime such that a witness's testimony would have been confusing and incomplete without mention of the prior act.'” United States v. Ford, 613 F.3d 1263, 1267 (10th Cir. 2010) (quoting United States v. Johnson, 42 F.3d 1312, 1316 (10th Cir. 1994)). Specifically, the other act and “the evidence of the crime charged . . . are part of a single criminal episode or the other acts were necessary preliminaries to the crime charged.” United States v. Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993) (internal quotations omitted). The Court agrees with plaintiff that the February 3, 2022 incident is admissible as res gestae because the incident is inextricably intertwined with the charged offenses. Moreover, defendant concedes that the February 3, 2022 incident, as described in plaintiff's notice, constitutes res gestae.

As to the other acts contained in plaintiff's 404(b) notice, the Court's “threshold inquiry” before admitting prior acts evidence under Rule 404(b) is “whether that evidence is probative of a material issue other than character.” Huddleston v. United States, 485 U.S. 681, 686 (1988). Rule 404(b)'s limitations are specifically designed to prevent the introduction of evidence that does nothing more than demonstrate a defendant's general propensity for violence. See United States v. Commanche, 577 F.3d 1261, 1268 (citing United States v. Sanders, 964 F.2d 295, 298-99 (4th Cir. 1992)). While propensity may be relevant to the charged conduct, “the risk that a jury will convict for crimes other than those charged--or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment--creates a prejudicial effect that outweighs ordinary relevance.” Old Chief v. United States, 519 U.S. 172, 181 (1997) (internal quotations omitted). In weighing the admissibility of evidence under Rule 404(b), the Court must consider four factors: 1) whether the evidence is offered for a proper purpose; 2) its relevance; 3) whether the probative value of the evidence is substantially outweighed by its prejudicial effect; and 4) a limiting instruction if the defendant so requests. Huddleston, 485 U.S. 681, 691 (1988); United States v. Mares, 441 F.3d 1152, 1156 (10th Cir. 2006); United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000).

Here, the Court finds that those incidents of assault that were accompanied by accusations of M.D. cheating on defendant are relevant to--and highly probative of--motive, and are thus admissible under 404(b) for the proper purpose of establishing motive. Moreover, such evidence of motive is not substantially outweighed by the risk of unfair prejudice.

Outcome: In sum, the Court finds that defendant's motion to limit or exclude the expert testimony of Leah Oliver should be denied.

IT IS THEREFORE ORDERED that those incidents in plaintiff's 404(b) notice (Dkt. # 42) that are either res gestae or offered to prove motive are admissible at trial; however, the remaining other acts are not admissible because they would tend to prove little other than defendant's propensity to violence.

IT IS FURTHER ORDERED that defendant's motion in limine as to expert Lori Gonzalez (Dkt. # 45) is denied in part as to excluding Ms. Gonzalez's testimony as unreliable; granted in part as to limiting Ms. Gonzalez's expert testimony--as to typical behaviors and dynamics--to only those opinions that are directly relevant to the conduct at issue in this case; and denied in part as to excluding Ms. Gonzalez's expert testimony as cumulative.

IT IS FURTHER ORDERED that defendant's motion to exclude or limit the expert testimony of Leah Oliver (Dkt. # 47) is denied.

Plaintiff's Experts:

Defendant's Experts:

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