Under Evidence Code section 1101, subdivision (b), a prior sexual offense may be admissible to prove intent as to acts currently charged. While employed as a police officer with a school district, appellant stopped a young woman for a minor traffic offense and, under the pretext of a search for weapons, sexually assaulted her. Appellant was convicted of five counts of sexual assault. At trial, evidence had been presented that appellant had previously acted inappropriately with a female student at a school to which he had been assigned. The evidence was offered for the purpose of establishing appellant’s intent as to the instant offenses. The appellate court agreed that the admission of the evidence was error. Evidence of a prior uncharged offense for the purpose of proving intent as to the current offense is admissible only if the prior act is sufficiently similar to the charged offense to support a rational inference that a defendant probably harbored the same intent on both occasions. Further, the evidence of the prior act is relevant and, thus, admissible, only if the present act is conceded or presumed. Here, because the acts were dissimilar and appellant denied that he had committed the current offense, the evidence as to the prior was inadmissable. But because of the uncontradicted and overwhelming evidence as to the current offense, the error was harmless.
In a case involving an alleged forcible sexual assault, consent is defined in Penal Code section 261.6. Appellant argued that the trial court should have instructed the jury to use an objective standard to evaluate whether the victim had consented to the “search,” i.e., whether it was objectively reasonable that appellant believed she consented when she did not resist. The appellate court rejected the argument, finding that in sexual assault cases, the issue is whether the victim acted freely and voluntarily in an exercise of free will and cooperation, and that the jury here was properly so instructed.