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December 6, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Kaye K. Christian, Trial Judge)

Before Ferren, Steadman, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: After a bench trial, the trial court convicted appellant Jose Garibay *fn1 of simple assault, a violation of D.C. Code § 22-504 (1989). Appellant's sole contention on appeal is that the trial court erred in admitting evidence of his previous assault on the same victim, his wife. We affirm.


The government's assault charge against appellant stemmed from appellant's alleged attack on his estranged wife, Joel Garibay, on November 12, 1991. Before trial, the government filed notice of its intent to introduce testimony tending to prove that appellant had also sexually assaulted his wife over 15 months earlier on July 21, 1990. After reviewing the government's proffer, including police reports documenting Joel Garibay's complaint, the trial court found by clear and convincing evidence that the July 21, 1990, assault had taken place. *fn2 The court then ruled that evidence of this earlier assault was admissible because its probative value, in negating appellant's proposed self-defense argument, outweighed any prejudice it might generate. The court also alluded to the admissibility of such evidence in domestic violence cases. Pursuant to this ruling, Joel Garibay testified at trial that on July 21, 1990, several months after she and appellant had separated, appellant raped and sodomized her at gunpoint in her home, using her police service revolver.

Joel Garibay also gave the following account of the events of November 12, 1991. In the morning, before her planned leave for California, she visited her father-in-law's home on Kenyon Street, N.W., to pick up her daughter, Malea. Malea had spent the night at the Kenyon Street home with appellant, her adoptive father. After Joel Garibay entered the Kenyon Street home, she noticed a blanket and towels that appellant had borrowed from her. When she picked up a towel, appellant snatched it from her and hit her with it. Appellant then struck her repeatedly in the face with his fist and kicked her in the stomach after she fell on the floor. To defend herself, Ms. Garibay tried to scratch appellant. Finally, appellant's father arrived and pulled appellant off her.

The government also presented testimony from a police officer who arrived on the scene in response to Ms. Garibay's subsequent call to the police from a neighborhood phone. This officer testified that when he saw Ms. Garibay her face was swollen and scratched and her lip was cut.

Appellant testified that after he had let his wife into the Kenyon Street home on November 12, 1991, she had attacked him in his bedroom, hitting and scratching him. Appellant further testified that he had pushed Ms. Garibay away, held her arms, and then forced her outside of the bedroom. The struggle between them ceased when appellant's father appeared. Appellant denied that his wife had ever been on the floor or that he had ever kicked her.

With regard to the July 21, 1990, incident, appellant claimed that his sexual contact with his wife had been consensual and that no weapon had been involved. He said that later that evening, however, he had found his wife's service revolver in her living room.

Appellant's father also testified for the defense. He stated that on November 12, 1991, he had seen Ms. Garibay on top of appellant, wrestling with him, in appellant's bedroom and that he had not seen appellant strike Ms. Garibay. The father, however, also testified that appellant "pushed her hard" and "threw her four or five feet . . . to the wall in the hallway."


Appellant contends on appeal that the trial court's admission of evidence concerning the alleged sexual assault on July 21, 1990, violated this jurisdiction's longstanding prohibition on the admission of evidence of other crimes to prove preDisposition to commit the crime charged. *fn3 See Drew v. United States, 118 U.S. App. D.C. 11, 15, 331 F.2d 85, 89 (1964). As the trial court recognized, however, our case law also clearly indicates that, in cases involving domestic violence, evidence of previous hostility between spouses or lovers may be of particular relevance to show motive and intent and therefore will be admissible under the state of mind exceptions to Drew when these mental states are at issue in the case. See Mitchell v. United States, 629 A.2d 10 (D.C. 1993); Hill v. United States, 600 A.2d 58, 61 (D.C. 1991); Clark v. United States, 593 A.2d 186, 195-96 (D.C. 1991); see also Green v. United States, 580 A.2d 1325, 1327-28 (D.C. 1990); cf. Rink v. United States, 388 A.2d 52, 56 (D.C. 1978); Gezmu v. United States, 375 A.2d 520, 522 (D.C. 1977). *fn4

Appellant attempts to distinguish this line of cases on the ground that his state of mind was not a material issue in this case. But that is incorrect. Although appellant denied kicking his wife, he admitted that he used force to remove her from his room, suggesting that he did so only in response to his wife's attacks. Insofar as appellant thus attempted to justify his actions as self-defense, he put his state of mind at issue. See Pounds v. United States, 529 A.2d 791, 795 n.6 (D.C. 1987) ("The Drew exceptions for intent, motive, and absence of mistake are applicable . . . when the defendant raises affirmative defenses (e.g., . . . self defense) thus putting his state of mind in issue. . . ."); Campbell v. United States, 450 A.2d 428, 431 (D.C. 1982) ("a claim of . . . self-defense . . . might have made appellant's state of mind a contested issue on which prior wrongful conduct evidence could be received"). Specifically, a self-defense claim raises the issue of whether the defendant was acting out of an actual and reasonable fear of imminent bodily harm, or whether, instead, the defendant had some other motive and was, in fact, the aggressor. See Criminal Jury Instructions for the District of Columbia, Nos. 5.12, 5.16 (4th ed. 1993).

In domestic violence cases such as this, we have repeatedly said that "'evidence concerning appellant's prior relationship with the decedent and the state of that relationship prior to and at the time of the is . . . indicative of the motive appellant may have possessed for committing the act.'" Mitchell, 629 A.2d at 13 (quoting Hill, 600 A.2d at 61). Thus, in Hill, where the defendant stood accused of murdering his girlfriend, we held that evidence of the defendant's previous assault on the victim was relevant and admissible under the motive exception to Drew. See Hill, 600 A.2d at 61-63. Similarly, in this case, once appellant's self-defense claim rendered motive a material issue, the trial court could properly admit evidence of the July 1990 assault under the Drew motive exception to show that appellant's malice toward his wife, rather than fear of harm, prompted his acts. *fn5 Cf. Rink, 388 A.2d at 56 ("evidence of prior aggressive conduct of the defendant ...

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