P. v. Cogswell 10/31/07 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D049038

Case Date: 02/13/2008

Preview:Filed 10/31/07

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. HENRY IVAN COGSWELL, Defendant and Appellant.

D049038

(Super. Ct. No. SCN201693)

APPEAL from a judgment of the Superior Court of San Diego County, John S. Einhorn, Judge. Reversed.

Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda CartwrightLadendorf and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

Henry Ivan Cogswell was found guilty of three counts of forcible rape, one count of rape by a foreign object and one count of forcible oral copulation. It was found true Cogswell was previously convicted of forcible rape within the meaning of Penal Code1 section 667.61, subdivisions (a), (c), (d), had served a prison term within the meaning of section 667.5, subdivision (a), was previously convicted on a felony within the meaning of section 667.6, subdivision (a), and was previously convicted of a serious felony within the meaning of sections 667, subdivision (a)(1), and 667, subdivisions (b) through (i). Cogswell was sentenced to a term of 105 years in prison. He appeals, arguing the trial court erred in allowing the prior testimony of an absent witness to be admitted in evidence and in admitting evidence of his prior sexual assaults. FACTS A. Prosecution Case 1. Charged Offenses On the afternoon of June 9, 2004, Lorene B., her sister and their children went to an apartment in San Marcos to see Lorene's friend Henrieta Cogswell (Henrieta). Appellant is Henrieta's brother. He also lived at the apartment. He told Lorene that Henrieta was not home. Lorene and the others returned to the home of Lorene's sister in Riverside. Lorene met appellant on several occasions. Crystal G., the mother of appellant's two children, was Lorene's best friend. Lorene was aware Crystal and appellant broke

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All further statutory references are to the Penal Code unless otherwise specified. 2

up. Appellant, Lorene, Crystal and Henrieta were deaf and communicated by sign language. On the evening of June 9, Lorene, by means of instant messages on her computer, communicated with someone she believed was Henrieta. In fact, the messages were sent by appellant. Later, Lorene also exchanged instant messages understanding she was communicating with appellant. Appellant begged Lorene to see him about a very important matter concerning their children. Lorene, believing the matter was serious, left Riverside and drove to San Marcos. She arrived at around midnight. Lorene parked her car in a lot at appellant's apartment and got out. Appellant approached her. Lorene asked if Henrieta was there. Appellant stated she was asleep. Appellant kissed Lorene on the mouth. When Lorene asked why he kissed her, appellant pushed her against the car. Lorene asked appellant if he was drunk and asked why he was treating her that way. Appellant told Lorene they needed to talk and asked her to get into the car. Lorene got into the driver's seat. Appellant sat in the passenger seat. Lorene asked appellant why he kissed her and told him he should not have done so. When Lorene asked appellant what he wanted to talk about, he climbed on top of her and reclined the driver's seat. As Lorene resisted, appellant sexually assaulted her. Eventually appellant returned to the passenger seat, removed his clothes and told Lorene to undress. Afraid of appellant, Lorene removed her pants. Appellant grabbed Lorene and placed her in a straddling position above him. Appellant inserted his penis and finger into her vagina.

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Lorene was able to climb into the back seat. Within a few moments appellant followed. Lorene told him she wanted to go home. Appellant told her she could "suck [his] penis." She did not want to. However, Lorene orally copulated appellant believing if she did he would let her go. When Lorene thought appellant fell asleep, she tried to get her clothes and leave. Appellant grabbed her, pinned her down and raped her again. Lorene passed out. The next morning she awoke still in the car with appellant. Eventually the two dressed. Appellant drove the car to a bank and to a gas station. Appellant then drove back to his apartment complex. He told Lorene not to tell anyone what happened. Appellant climbed into the back seat and Lorene got out of the car. Appellant ordered Lorene to get back in the car. Afraid of appellant, she got in. Appellant raped her again. Appellant got out of the car and Lorene drove back to Riverside. A few days later, Lorene e-mailed Crystal telling her she wanted to meet because someone raped her. Crystal guessed the attacker was appellant because he mentioned the rape a few days before. Lorene told Crystal it was difficult for her to report the rape because both she and appellant belonged to the small deaf community and because she knew appellant's family. Crystal suggested she, appellant and Lorene discuss the matter in an electronic chat room. They did so. Lorene, unsatisfied with the conversation, reported the sexual assault to the police. On June 13, 2004, Sheriff's Detective David Schaller contacted appellant. The detective noticed appellant had a large bruise on his leg and scratches on his face, head,

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arms, hand, legs and back. Crystal told Lorene that appellant was abusive to her. However, Crystal did not think she ever told Lorene that appellant raped her. 2. Prior Uncharged Offenses In 1996 Crystal met appellant at school in New York and they began a sexual relationship. A few weeks after the relationship began, appellant physically assaulted her. Crystal reported the assault to school authorities, and in November 1996 appellant was expelled. Crystal moved with appellant to his parent's home in New York. His violence toward her increased. Appellant's assaultive behavior was reported to the police. Crystal first moved to Texas, and in February 1997 she moved to San Diego. In February 1997 Crystal called appellant and told him she was pregnant with his child. Crystal agreed to see appellant. Because she was afraid of him, she asked him to bring someone with him. On February 6 or 7, 1997, appellant came to Crystal's apartment with his cousin Roy. Appellant told Crystal she had the choice of having sex with him or being abused. Crystal asked appellant to go for a walk hoping he would cool off. Appellant agreed. During the walk, appellant demanded Crystal have sex with him and told her to take off her pants. Afraid he would hurt her if she resisted, Crystal removed her pants and appellant raped her. Crystal and appellant went with Roy to Roy's parent's house in Riverside. The next day, Crystal and appellant drove back to San Diego. During the drive, appellant stopped in a parking lot, hit Crystal in the head and ordered her to have sex with him. Crystal removed her pants and appellant raped her.

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On arriving in San Diego, Crystal could not get into her apartment so she and appellant remained in the car. While in the car, appellant again ordered Crystal to have sex with him. Fearful of appellant, she orally copulated him. She then removed her clothes. Appellant raped her. Later that day, appellant raped Crystal again. Crystal reported the rapes to her prenatal counselor. The counselor reported the crimes to the police and appellant was arrested. Appellant called Crystal from jail and asked her to say she had not been raped but only sexually harassed. At appellant's trial on those charges, Crystal recanted the claim of rape and testified appellant sexually harassed her. Appellant, nonetheless, was convicted of rape. Crystal later, at a habeas corpus proceeding, also falsely denied appellant raped her. Crystal stated she lied because she did not want appellant to go to prison for six years and was worried about her relationship with others in the deaf community. Crystal continued to see appellant after he was released from prison and had a second child with him. Crystal admitted having falsely accused her stepfather of raping her. B. Defense Case A social worker, Diana Spencer, interviewed Lorene. During that interview, Lorene told Spencer she was arrested for "park[ing] in the wrong spot." Spencer checked the arrest report and learned Lorene was arrested for driving under the influence. Spencer concluded Lorene did not tell her the truth and was attempting to minimize the incident.

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Julio Medina, the father of Lorene's son, testified Lorene falsely accused him of sexually molesting their then-six or seven-year-old son. Henrieta, appellant's sister, testified that on June 10 to 13, 2004, appellant did not have large bruises, scratches or marks on his body. DISCUSSION A. Unavailable Witness Prosecutrix Lorene did not appear at trial. Appellant argues the trial court erred when it allowed the prosecution to offer in evidence her testimony from a preliminary hearing. Appellant contends that contrary to the finding of the trial court, the prosecution did not show due diligence in attempting to secure Lorene's presence at trial. More particularly, he argues that in seeking Lorene's testimony the prosecution did not fully utilize the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases (

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