Filed 9/10/14 P. v. Ahern CA2/1 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION ONE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

KEVIN MICHAEL AHERN, 

 Defendant and Appellant. 

 B248596 

 (Los Angeles County 

 Super. Ct. No. LA068747) 

APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph 

A. Brandolino, Judge. Affirmed. 

 Vanessa Place, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee and William 

H. Shin, Deputy Attorneys General, for Plaintiff and Respondent. 

________________________________ 
2 

 Kevin Ahern appeals from a judgment following a jury trial in which he was 

convicted of lewd acts upon a child of 14 years (Pen. Code, § 288, subd. (c)(1)) and oral 

copulation with a person under 16 years of age (Pen. Code, § 288a, subd. (b)(2)). He 

contends the trial court abused its discretion in excluding evidence of photographs and 

online content of the victim engaged in graphic or sexual behavior. We affirm. 

Statement of Facts 

1. Evidence Presented at Trial 

 I.H. was 13 years old and living in Hidden Hills with her family when Ahern sent 

her a message through Facebook on July 18, 2011. Ahern was 37 years old. They began 

to exchange Facebook messages, through which I.H. told Ahern she was only 13 years 

old. A few days later, I.H. and Ahern exchanged phone numbers and began to send each 

other text messages. They discussed their common interests, I.H.’s interest in writing and 

drawing, and events going on in their lives. Ahern repeatedly said such things as, “Sweet 

dreams [I.H.]. Nite nite,” followed by a heart symbol, and frequently asked I.H. to meet 

him. When I.H. asked him why he wanted to meet, he responded, “You seem so sweet 

and down to earth. I love that! I just rly wanna get to know u better. Hang out.” 

 Finally, on August 9, 2011, I.H. and Ahern agreed to meet at a local shopping 

area. I.H. rode her bike there and met Ahern at a bookstore. Ahern gave her a hug, and 

they left the bookstore to sit outside at some tables and talk. Ahern told I.H. he was 22 

years old. After talking for some time, I.H. went home. 

 That night, Ahern sent I.H. a text message which stated, “[I.H.]! It was so 

wonderful meeting u and hanging out with you!!! You’re beautiful in every way. . . truly. 

I can’t wait to see you again,” followed by a heart symbol. Later he wrote, “You’re 

gorgeous, srsly,” and “I wanna come over and cuddle up and watch movies with you!!!,” 

followed by a heart symbol. They then proceeded to make plans to get together for a 

“movie night.” 

 I.H. agreed to meet Ahern at his house on August 12, 2011. Once there, they went 

into his bedroom and Ahern showed her some of his music and music videos. Ahern then 

put on a movie and they laid down on his bed. At some point, Ahern and I.H. undressed. 
3 

He took her hand, put it on his penis, and made her rub it until he became erect. Ahern 

then put his penis in her mouth and used his hands to move her head until he ejaculated. 

Ahern next rubbed his penis against her vagina and whispered that they were not going to 

have sex. He then kissed I.H. and pushed his penis inside her vagina. He asked I.H. to 

bring her hand down, and she felt his penis all the way inside her. He then removed his 

penis and put it in her mouth until he ejaculated again. Afterwards, they got dressed and 

Ahern asked her to sleep over. She declined, and he drove her home. 

 In the following days, I.H. and Ahern continued to exchange text messages. I.H. 

repeatedly told him that her vagina hurt. She asked if she could tell her sister about what 

had happened, as she had missed her period and was scared. Ahern urged her not to tell 

her sister, counseling that doing so would cause significant problems and would “be more 

stressful than anything.” 

 On August 23, 2011, I.H.’s mother learned what had happened by reading I.H.’s 

text messages, and called the police. Two days later, a detective with the Los Angeles 

County Sheriff’s Department arranged for I.H. to place a phone call to Ahern, which the 

detective recorded. During the call, I.H. told Ahern she was sore, and Ahern replied, “I 

think that probably what happened was because you had sex you know, it . . . was . . . 

maybe a little traumatic for you . . . .” I.H. asked him if he ejaculated inside her, and 

Ahern responded that “nothing like that I think would have happened . . . I honestly think 

you’re ok.” He assured her with one hundred percent certainty she was not pregnant. 

When I.H. asked him to promise he did not ejaculate inside her, he stated he was 

“absolutely positive” that did not happen. When she asked if he used a condom and 

about the length of time they had sex, he responded that he could not recall. Ahern was 

subsequently arrested. 

 An information charged Ahern with two counts of lewd acts upon a child of 14 

years (Pen. Code, § 288, subd. (c)(1)) and one count of oral copulation with a person 

under 16 years of age (Pen. Code, § 288a, subd. (b)(2)). While released on bail, Ahern 

fled to Mexico, where he was found by Mexican authorities and returned to the United 

States. 
4 

 At trial, Ahern maintained that he did not have sex with I.H. He testified that 

while at his house on August 12, 2011, I.H. confided to him that the previous night she 

had sex for the first time with a man in the neighborhood, and was upset because he was 

now ignoring her. She asked Ahern if he would pose as her boyfriend when she called 

him or sent him a text message to make the other man jealous, and he agreed. Ahern 

explained that when I.H. contacted him to ask about their sexual encounter, he was 

playing along with her request that he act like her boyfriend. When he received the 

phone call, he thought she was talking about having sex with another man, but played 

along in case the man was listening, believing she wanted him to answer the questions in 

a manner that would make the other man jealous. 

 The jury found Ahern guilty on all three counts. Ahern also pled no contest to one 

count of failure to appear (Pen. Code, § 1320.5) in a second case. The trial court 

sentenced him to three years and eight months in state prison. Ahern timely appealed. 

2. Evidence at Issue on Appeal 

 Prior to trial, defense counsel proffered evidence of photographs and other 

material I.H. had posted online, offered to show she was abnormal and therefore not 

credible. Specifically, defense counsel sought to introduce the following: (1) two 

Facebook photographs of I.H. wearing zombie-like bloody face makeup; (2) a staged 

Facebook photograph of I.H. holding a handsaw over a topless young man who appeared 

to have blood on his chest; (3) a Facebook photograph of a person’s neck with a large 

welt; (4) a Facebook photograph of a forearm with three welts; (5) a Facebook 

photograph of a burning object in a field; (6) a Facebook photograph of what appeared to 

be a sofa burning in a field; (7) a Facebook photograph of a burning object on a sofa; (8) 

a Facebook photograph of a chalk drawing of a stick figure with breasts and a penis; (9) a 

Facebook photograph of I.H. in a yellow costume holding a long red balloon between her 

legs, simulating an erect penis; (10) a Facebook drawing of an ejaculating penis; (11) a 

Facebook photograph of I.H. and another person touching tongues; (12) a printout of 

I.H.’s profile on the website Scene Queen, accompanied by a definition of Scene Queen 

from Urban Dictionary as a female who dates a man in a band and/or sleeps with a lot of 
5 

men; and (13) a Facebook photograph of an anime drawing of a male labeled “Richtard!” 

with a speech bubble stating “I am So NOT a rapist.”1

 

 Defense counsel contended the photographs were relevant to I.H.’s credibility, as 

they showed moral turpitude, a character for dramatization or fantasy, and mental illness. 

Defense counsel argued the drawing of “Richtard” was relevant to show I.H. had 

previously accused someone of rape, and the Scene Queen profile was relevant to show 

I.H. wanted to date and have sex with someone in a band. 

 The trial court determined the photographs depicting violence or injury were 

irrelevant, as they did not relate to moral turpitude, and in any event would not survive an 

analysis under Evidence Code section 352. The court further determined that because 

consent was not at issue, the material depicting sexual content was irrelevant to show I.H. 

was interested in sex, and also would not survive a section 352 analysis. Finally, the trial 

court found the drawing of “Richtard” appeared to be a joke, not a rape accusation, and 

was therefore irrelevant. 

Discussion 

 Ahern argues the trial court abused its discretion in refusing to admit I.H.’s 

Facebook photographs and online content because they showed her “propensity to 

fabricate episodes of sexual transgression and victimization.” We disagree. 

 Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is 

“evidence having any tendency in reason to prove or disprove any disputed fact that is of 

consequence to the determination of the action.” (Evid. Code, § 210.) Relevant evidence 

may nonetheless be excluded under Evidence Code section 352 if its probative value is 

substantially outweighed by the probability that its admission will create substantial 

danger of undue prejudice or of misleading the jury. (Evid. Code, § 352.) The trial court 

has wide discretion in determining the relevancy and admissibility of evidence. (People 

 1

 For purposes of clarity, we will characterize exhibits 1-7 as photographs 

depicting violence or injury and exhibits 7-12 as material depicting sexual content. We 

will address exhibit 13 independently. 
6 

v. Benavides (2005) 35 Cal.4th 69, 90.) We review a trial court’s rulings on the 

admissibility of evidence for abuse of discretion. (Ibid.) 

 Ahern argues the excluded evidence showed I.H.’s capacity to falsely accuse 

someone of a crime, and was therefore relevant to impugn her credibility. Evidence of a 

victim’s character (in the form of an opinion, evidence of reputation, or evidence of 

specific instances of conduct) may be admissible to prove conduct of the victim in 

conformity with that character. (Evid. Code, § 1103, subd. (a).) To determine the 

credibility of a witness, Evidence Code section 780 provides that the court or jury may 

consider any matter that has any tendency in reason to prove or disprove the truthfulness 

of her testimony at the hearing, including but not limited to any of the following: (a) her 

demeanor while testifying; (b) the character of her testimony; (c) her capacity to perceive, 

recollect, or communicate; (d) her opportunity to perceive; (e) her character for honesty 

or veracity; (f) the existence or nonexistence of a bias, interest, or other motive; (g) a 

prior consistent statement; (h) a prior inconsistent statement; (i) the existence or 

nonexistence of any fact testified to by her; (j) her attitude toward the action or toward 

the giving of testimony; and (k) her admission of untruthfulness. Admission of evidence 

of a victim’s character or credibility, however, is still subject to evidentiary rules of 

relevance and undue prejudice. (See People v. Brown (2003) 31 Cal.4th 518, 544-545.) 

“The court is not required to admit evidence that merely makes the victim of a crime look 

bad.” (People v. Kelly (1992) 1 Cal.4th 495, 523.) 

 We fail to see how the proffered evidence has any tendency in reason to impugn 

I.H.’s credibility. First, the photographs depicting violence or injury have no bearing on 

I.H.’s capacity to tell the truth under oath. Photographs of a teenager wearing zombielike makeup, enacting violent scenes, documenting injuries, or burning objects evidences 

at most a graphic and perhaps peculiar imagination. Had I.H. testified she had never 

engaged in violent or graphic enactments, the photographs arguably would have been 

relevant to challenge her credibility, but no such testimony occurred. 

 Ahern contends the photographs are relevant to show mental illness. We disagree. 

Mental illness may be relevant to the issue of credibility if such illness affects the 
7 

witness’s ability to perceive, recall, or describe the events in question. (See People v. 

Gurule (2002) 28 Cal.4th 557, 591-592.) Nothing in the photographs depicting violence 

or injury suggests I.H. was unable to perceive, recall, or describe her sexual encounter 

with Ahern. 

 Second, evidence that I.H. was familiar with male sex organs, engaged in sexual 

conduct, or had a profile on a social networking site with an arguable connection to 

sexual activity has no tendency in reason to show I.H. would lie under oath.2

 Ahern 

argues the sexual images are relevant to explain I.H.’s knowledge of male anatomy and 

ejaculation from a source other than her sexual encounter with Ahern. But the source of 

I.H.’s knowledge of sexual conduct was not at issue, as I.H. made no claim that she was 

unfamiliar with sexual conduct prior to her encounter with Ahern.3

 Lastly, Ahern argues the stylized drawing of a male labeled “Richtard,” 

accompanied by a speech bubble stating “I am So NOT a rapist,” was relevant to show 

I.H. was likely to falsely accuse someone of rape. We disagree. The trial court 

concluded the drawing was a joke, and our examination of it sheds no additional light on 

its meaning or purpose. A joke about rape, however distasteful, does not evidence a 

propensity to lie about being raped. Had the drawing proven to be a prior false 

 2

 The parties agree the material depicting sexual content was not offered to show 

I.H.’s propensity to engage in sexual activity, nor would it have been admissible to show 

such propensity, as consent was not at issue. 

3

 We note that evidence of a victim’s prior sexual conduct may be used to attack 

the victim’s credibility (Evid. Code, § 1103, subd. (c)(5)), subject to the procedural 

mandates of Evidence Code section 782, which requires that the defense file a written 

motion accompanied by an offer of proof explaining the relevancy of evidence of sexual 

conduct sought to be admitted. (Evid. Code, § 782, subd. (a).) If the court finds the offer 

of proof to be sufficient, it shall permit the defense to question the victim outside the 

presence of the jury regarding the offer of proof. (Ibid.) If the court finds the proffered 

evidence is relevant and not unduly prejudicial, it shall allow the evidence to be 

introduced. (Ibid.) Here, had any of the proffered sexual material been relevant to attack 

I.H.’s credibility, Ahern would have had to comply with section 782. There is no 

evidence he did so. 
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accusation of rape, it would have been relevant to I.H.’s credibility. (See People v. 

Tidwell (2008) 163 Cal.App.4th 1447, 1456.) But nothing suggests the drawing was 

anything but a joke, which has no tendency in reason to show I.H. would lie under oath. 

 The trial court was well within its discretion to exclude admission of the proffered 

evidence. 

Disposition 

 The judgment is affirmed. 

 NOT TO BE PUBLISHED. 

 CHANEY, Acting P. J. 

We concur: 

 JOHNSON, J. 

 MILLER, J.*

 

 * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.