In a sexual assault case, what is the burden of proving that the court erred when it ruled in limine that evidence that he had committed sexual battery against two adult women by touching their buttocks against their will was admissible?

Defendant argues that the court erred when it ruled in limine that evidence that he had committed sexual battery against two adult women by touching their buttocks against their will was admissible. However, neither of the two women testified, and defendant does not directly address how he was prejudiced by this ruling. He does contend, in his reply brief, that he "had no choice" but to testify to address his police interview, which was played for the jury, in which it was discussed whether he had inappropriately grabbed women in the past. Defendant did not object to its admission nor, as far as we are aware, did he seek to have the interview redacted to exclude that portion. We are therefore not persuaded that he preserved any issue pertaining to that evidence for review. (See People v. Kennedy, supra, 36 Cal.4th at p. 612.)

Moreover, even if the issue has been preserved and error has been shown in the admission of either the evidence addressed in the motion in limine or the police interview, defendant has not met his burden to affirmatively demonstrate prejudice arising from the alleged error. The erroneous admission of evidence of prior misconduct is not per se reversible. Rather, a defendant must show how the error resulted in a miscarriage of justice. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019; People v. Coley (1997) 52 Cal.App.4th 964, 972 [defendant has the burden to show both error and prejudice].) By failing to do so, defendant has forfeited the issue.

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