People v. Banks, 97CA1404.

• Decision Date: 07 January 1999
• Docket Number: No. 97CA1404.,97CA1404.
• Citation: 983 P.2d 102
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas L. BANKS, Defendant-Appellant.
• Court: Colorado Court of Appeals

983 P.2d 102

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas L. BANKS, Defendant-Appellant.

No. 97CA1404.

Colorado Court of Appeals, Div. I.

January 7, 1999.

Rehearing Denied February 18, 1999.

Certiorari Granted September 13, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Julia A. Thomas, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

David F. Vela, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by Judge ROTHENBERG.

Defendant, Thomas L. Banks, appeals the judgment of conviction entered on jury verdicts finding him guilty of one count of second degree assault on a peace officer, one count of third degree assault on a peace officer, and one count of resisting arrest. He also appeals the sentence imposed for the second degree assault conviction. We affirm the convictions, but remand for resentencing.

Defendant's convictions arose after he assaulted two police officers when they attempted to arrest him. He bit one officer in the arm and kicked the second officer in the chest.

At trial, during the opening statement, the prosecutor told the jury the evidence would show that: (1) the officers were advised by the dispatcher that defendant was "dangerous;" and (2) the officers were further advised to "use caution" when approaching defendant. The trial court overruled defendant's objection to these remarks by the prosecutor.

Consistent with the prosecutor's opening statement, the two officers later testified about the dispatcher's remarks. Defendant did not object, but after each officer's testimony, the trial court sua sponte instructed the jury that the evidence about the dispatcher's statements was admitted for the limited purpose of showing each officer's state of mind.

Defendant then moved for a mistrial based on the prosecutor's comments during the opening statement and the officers' testimony during the prosecution's case-in-chief. He claimed that the evidence was hearsay, and that it was irrelevant and unfairly prejudicial. The trial court denied the motion.

I.

Defendant first contends the trial court erred: (1) by admitting the officers' testimony regarding the dispatcher's comments; and (2) by denying his motion for mistrial based on the admission of that evidence and on the prosecutor's earlier reference to the dispatcher's comments in her opening statement. We disagree.

A mistrial is a drastic remedy warranted only when the prejudice to the accused is so substantial that its effect on the jury cannot be remedied by other means. People v. Collins, 730 P.2d 293 (Colo.1986); People v. Salazar, 920 P.2d 893 (Colo.App. 1996). The determination whether to grant a motion for mistrial is within the sound discretion of the trial court. People v. Evans, 886 P.2d 288 (Colo.App. 1994).

A trial court can better evaluate any adverse effect improper testimony might have upon a jury than can a reviewing court. People v. Price, 903 P.2d 1190 (Colo.App. 1995). Thus, absent a gross abuse of discretion and a showing of substantial and undue prejudice to the defendant, the trial court's denial of a motion for a mistrial on the basis of improperly admitted evidence will not be disturbed on review. People v. Smith, 620 P.2d 232 (Colo.1980); People v. Bell, 809 P.2d 1026 (Colo.App.1990). To show an abuse of discretion, the defendant must establish that the trial court's decision was manifestly arbitrary, unreasonable, or unfair. People v. Lee, 914 P.2d 441 (Colo.App.1995).

A.

We first reject defendant's assertion that the trial court erred by admitting the officers' testimony and by denying his motion for mistrial on that basis.

The Colorado Rules of Evidence strongly favor the admission of material evidence, and a trial court has broad discretion in determining the admissibility of evidence. People v. District Court, 869 P.2d 1281 (Colo. 1994); see also CRE 403. We will not disturb the trial court's evidentiary rulings on review absent a clear abuse of discretion. See People v. Quintana, 882 P.2d 1366 (Colo. 1994); People v. Workman, 885 P.2d 298 (Colo.App.1994).

Here, contrary to defendant's assertion, the trial court properly concluded that the officers' testimony was not hearsay evidence. It was not offered to show the truth of the dispatcher's comments, but to show the state of mind of the officers and to provide a context for their descriptions of how they approached defendant and why they interacted with him as they did. See People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979); CRE 801(c); see also People v. Walters, 821 P.2d 887 (Colo.App.1991).

Nor are we persuaded by defendant's assertion that the officers' testimony constituted prior misconduct evidence. The evidence did not suggest that defendant had actually committed other crimes.

Accordingly, we reject defendant's contention that the trial court erred by admitting the officers' testimony and by denying his motion for mistrial on that basis.

B.

Defendant next contends that the evidence was inadmissible because its probative value was substantially outweighed by the danger of unfair prejudice, and that the trial court abused its discretion in not excluding it on that basis and by denying his motion for a mistrial. Again, we disagree.

CRE 403 provides that the trial court may exclude evidence "if its probative value is substantially outweighed by the danger of unfair prejudice." In examining evidence under CRE 403, the evidence should be accorded its maximum probative weight and its minimum prejudicial effect. People v. Lowe, 660 P.2d 1261 (Colo.1983).

All effective evidence is prejudicial in the sense of being damaging or detrimental to the party against whom it is offered. However, unfair prejudice refers only to evidence which tends to cause a decision to be made on an improper basis. People v. District Court, supra.

A trial court's determination that the probative value of evidence outweighs the prejudice to a defendant will not be disturbed on appeal absent an abuse of discretion. People v. Czemerynski, 786 P.2d 1100 (Colo. 1990); People v. Hogan, 703 P.2d 634 (Colo. App.1985). The trial court abuses its discretion only when its evidentiary ruling is arbitrary, unreasonable, or unfair. People v. Milton, 732 P.2d 1199 (Colo.1987).

While we agree that the evidence regarding the dispatcher's comments was harmful to defendant's case, there is no basis for us to conclude that the evidence led the jury to make its decision on an improper basis. After each officer's testimony, the trial court sua sponte instructed the jury that the evidence about the dispatcher's statements was admitted for the limited purpose of showing that officer's state of mind, and it is presumed that the jury followed the court's instructions.

Accordingly, we conclude that the trial court did not abuse its discretion by not excluding the evidence as unfairly prejudicial, and by denying his motion for a mistrial based on the admission of that evidence.

II.

Defendant next asserts that the comments made by the prosecutor during opening statement constituted prosecutorial misconduct, and that the trial court should have granted his motion for mistrial on that basis. We are not persuaded.

Arguments of counsel are not evidence. Accordingly, to the extent defendant asserts that the prosecutor's comments constituted inadmissible evidence, we disagree.

Claims of improper argument must be evaluated in the context of the argument as a whole and in light of the evidence before the jury. The trial court is in the best position to make such an evaluation, and its ruling will not be disturbed on appeal in the absence of a gross abuse of discretion resulting in prejudice and denial of justice. People v. Moody, 676 P.2d 691 (Colo.1984).

Here, the prosecutor's comments called the jury's attention to evidence that would be later admitted at trial. Because that evidence was properly admitted later to show the state of mind of the officers, we conclude there was nothing improper about the prosecutor's comments.

III.

However, we do agree with defendant's contention that, in regard to the sentence imposed, the trial court erred by concluding that second degree assault on a peace officer was an extraordinary risk crime, and by enhancing his sentence pursuant to § 18-1-105(9.7), C.R.S.1998.

Defendant was convicted of second degree assault on a peace officer under § 18-3-203(1)(c), C.R.S.1998. Section 18-3-203(2)(c), C.R.S.1998, states that upon such a conviction, the defendant shall be sentenced in accordance with § 16-11-309, C.R.S.1998, which provides for enhanced sentencing for offenses which constitute "crimes of violence."

The trial court determined that defendant had been convicted of a crime of violence and had to be sentenced pursuant to § 16-11-309 and also pursuant to § 18-1-105(9.7)(a), C.R.S.1998. Defendant agrees that he had to receive an enhanced sentence under § 16-11-309. However, he maintains, and we agree, that the trial court erred in determining he also was subject to the additional enhanced sentencing provision in § 18-1-105(9.7)(a).

A.

We first address and reject the People's assertion that defendant was not sentenced for an extraordinary risk crime because the mittimus does not specifically mention the extraordinary risk crime enhancer.

At the sentencing hearing, the trial court stated that:

I am going to impose a sentence of five years in the Department of Corrections; that's minimum, but also the mandatory sentence that I have to impose. It is a crime of violence. It's [an] extraordinary risk crime, and also is a crime against a peace officer. (emphasis added)

If the trial court had not applied the extraordinary risk crime sentence enhancer, the minimum allowable sentence would have been four years, rather than the five years the trial...