Propensity Evidence Admitted in Child Abuse Case

The evidence was significant in that it strongly suggested Ms. Thomas hated children and never wanted to have them, although she had several children. She had abused her children that she had given birth to earlier, including admissions that she had strangled another child “until he stopped breathing.” In this earlier incident, a friend had reported Ms. Thomas to child protective services.

Additional evidence was introduced that Ms. Thomas was addicted to heroin and methamphetamine and that she lost custody of her first and second children due to neglect and suspected child abuse.

The jury convicted Thomas of second-degree murder of K., for assault with force likely to cause great bodily injury of K., and for permitting both K. and B. to suffer unjustifiable physical pain and mental suffering, which she willfully caused or permitted as to K. that resulted in his death.

The trial court sentenced Thomas to a total of 21 years to life in prison. This sentence consisted of 15 years to life for K.’s second degree murder and the upper term of six years for the abuse of B. The judge imposed, then stayed pursuant to Penal Code § 654, one year for assault with force likely to cause great bodily injury to K. and two years, eight months for permitting K. to suffer unjustifiable physical pain and mental suffering resulting in his death.

Ms. Thomas appealed to the Third Appellate District court in Sacramento, arguing many issues, but this article will narrow its scope only to the issue of whether the trial court erred in admitting evidence of Ms. Thomas’ propensity to commit child abuse.

The Third Appellate District affirmed the trial court’s ruling to permit the introduction of propensity evidence. The district court explained that Evidence Code § 1109 provides, in part, “in a criminal action in which defendant is accused of an offense involving child abuse, evidence of defendant’s commission of the child abuse is not made inadmissible by Evidence Code § 1101 if the evidence is not inadmissible pursuant to § 352.” Evidence of acts occurring more than ten years before the charged offense is inadmissible under the section, unless the court determines that the admission of the evidence is in the interest of justice.

Here, Ms. Thomas argued that the People can introduce such evidence, but a co-defendant cannot. The appellate court rejected this argument, finding all defendants have the right to present a defense. California v. Trombetta (1984) 467 U.S. 479, 485, 81 L. Ed. 2d 413, 419. Moreover, it is of no consequence that a co-defendant offered this evidence, as he was adversarial to Ms. Thomas, just as was the State.

Second, Ms. Thomas objected to such evidence as being more than ten years old. The appellate court found this unavailing, as the type of prior evidence, strangling, was the exact same as the conduct at issue here.

Third, Ms. Thomas argued that the prior evidence was more prejudicial than probative. The appellate court rejected this argument, pointing out that the child protective services report from then testified to the report’s uncertainty, in a way protecting Ms. Thomas.

We present this summary to exemplify how in child abuse cases, judges seem inclined to admit propensity evidence.

The citation for the Third Appellate District Court ruling discussed above is People v. Rebecca Thomas (3rd App. Dist., 2021) 63 Cal. App. 5th 612, 277 Cal. Rptr. 3d 818.

For more information about admission of uncharged prior act evidence and child abuse/endangerment, please click on the following articles: