People v. Bolton, 92CA0162

• Decision Date: 01 July 1993
• Docket Number: No. 92CA0162,92CA0162
• Citation: 859 P.2d 311
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James BOLTON, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 311

859 P.2d 311

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James BOLTON, Defendant-Appellant.

No. 92CA0162.

Colorado Court of Appeals,

Div. II.

July 1, 1993.

Rehearing Denied Aug. 26, 1993.

Certiorari Denied January 8, 1996 (95SC509).

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Koehler Asst. Atty. Gen., Denver, for plaintiff-appellee.

John R. Olsen, Boulder, for defendant-appellant.

Opinion by Judge PIERCE.

Defendant, James P. Bolton, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of three counts each of sexual assault on a child and second degree burglary, and one count of second degree kidnapping, stemming from separate incidents during 1990 involving three young girls. We affirm.

I.

On appeal, defendant first contends that the trial court erred in failing to follow the procedural safeguards required by § 13-25-129, C.R.S. (1987 Repl.Vol. 6A), when it permitted the prosecution to present hearsay statements of the victims. Specifically, he contends that the trial court erred by failing to hold a hearing to determine the reliability of the victim's statements and to give the jury cautionary instructions regarding the statements. He concludes that, because of the prejudicial nature of the hearsay statements, these errors mandate reversal. We disagree.

Section 13-25-129 creates an exception to the general exclusion of hearsay for the out-of-court statement of a child describing acts of sexual contact performed "with, by, on, or in the presence of the child declarant." Under the statute, if child hearsay is admitted under this statute, the prosecution must provide the defense with prior notice of its intent to introduce such statements and the trial court must make specific findings of fact concerning the reliability of the statements and provide the jury with cautionary instructions.

In People v. Bolton, 859 P.2d 303 (Colo.App.1993) (Bolton I ), we held that:

Section 13-25-129 is controlling only to child hearsay which is not otherwise admissible by a statute or court rule which provides an exception to the objection of hearsay. Section 13-25-129(1), C.R.S. (1987 Repl. Vol. 6A). If the child's hearsay statement is specifically admissible under another statute or court rule which provides an exception to the hearsay rule, § 13-25-129 is not applicable. People v. Diefenderfer, 784 P.2d 741 (Colo.1989); § 13-25-129(1).

....

However, if a child's hearsay statement would be admissible only under § 13-25-129 or the residual hearsay exceptions of CRE 803(24) or CRE 804(b)(5), our supreme court has recognized that the more specific statute, § 13-25-129, is controlling, as the residual exceptions contain different requirements for the admission of hearsay. See People v. Bowers, 801 P.2d 511 (Colo.1990).

Thus, § 13-25-129 is not controlling if the prosecution seeks to introduce child hearsay under another specific exception to the hearsay rule. See People v. Galloway, 726 P.2d 249 (Colo.App.1986) (in prosecution for sexual assault on a child, victim's statements to his mother were admissible hearsay under either CRE 803(2) or § 13-25-129); cf. People v. Jones, 843 P.2d 67 (Colo.App.1992) and People v. McClure, 779 P.2d 864 (Colo.1989) (procedural safeguards must be followed if prosecutors seek to admit child hearsay only under § 13-25-129 and not under any other statutory exception to the hearsay rule).

Here, prior to trial, prosecutors initially filed a motion in limine to admit hearsay statements of the victims under § 13-25-129 and CRE 803(24). However, before the trial court could rule on the motion, a prosecutor stated that "the People will withdraw any child hearsay statements, so that motion does not need to be addressed."

Subsequently, prosecutors indicated, without objection by defendant, that statements of the victims might be admitted under another exception to the hearsay rule.

Therefore, because it is apparent from our reading of the record that the prosecution did not seek to admit the statements under § 13-25-129, the trial court was not required to follow the procedural requirements of that statute.

We reject defendant's contention that the prosecutor's statement above, standing alone, would, under the doctrine of judicial estoppel, bar the admission of any such statements. The applicability of judicial estoppel was not raised before the trial court. Therefore, we decline to address this issue for the first time on appeal. See People v. Chetelat, 833 P.2d 771 (Colo.App.1991).

II.

Defendant next argues that the trial court erred in admitting hearsay statements of the victims offered through the victims' parents and investigating officers. The People contend that the statements were properly admitted as "excited utterances" under CRE 803(2). We agree with the People.

An "excited utterance" is a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Cheney v. Hailey, 686 P.2d 808 (Colo.App.1984); CRE 803(2).

Because the trial court is in the best position to consider the effect of the startling event on the declarant, it is afforded wide discretion in determining whether a statement is admissible under the "excited utterance" exception. People in Interest of O.E.P., 654 P.2d 312 (Colo.1982).

A sexual assault may constitute a sufficiently startling event to admit hearsay statements of a child-victim. See People v. Galloway, 726 P.2d 249 (Colo.App.1986); People v. Sandoval, 709 P.2d 90 (Colo.App.1985). Therefore, in considering the admissibility of the victims' hearsay statements here, we focus our inquiry on whether the statement was a spontaneous reaction to the event or a result of reflective thought. See W.C.L. v. People, 685 P.2d 176 (Colo.1984).

A.

At trial, the grandmother of the first victim testified, over defendant's continuing objection, as to statements made by the victim on the afternoon of the alleged assault. According to the grandmother, the victim stated that a man had grabbed her as she was attempting to enter her home and pulled her into a neighboring apartment. The victim had stated that the man had sexually assaulted her in the basement of the apartment and that he might still be in the apartment. In addition, the victim described her assailant as either a "dark-skinned white man or a light skinned black man."

The record shows that the victim made these statements immediately after the grandmother arrived home from work, within, at most, a few hours of the assault. The grandmother also stated that the victim was "crying and incoherent" as she related what had happened.

In addition, an investigating officer testified at trial as to the victim's description of her assailant and the details of the assault. The officer testified that he had interviewed the victim only a few hours after the assault and that she was "hysterical" during the interview.

Under these circumstances, we conclude that the hearsay statements of the first victim were properly admissible as excited utterances. Each of the statements was made within a short time of the assault, and the testimony of the grandmother and the investigating officer indicate that the victim was still under the stress of the assault when she made the statements. Therefore, the trial court did not err in admitting the statements. See People v. Sandoval, supra.

Moreover, the hearsay statements were cumulative with the victim's in-court testimony during which she described her assailant and the details of the assault. Thus, even if we assume the victim's statements to her grandmother and the investigating officer were inadmissible, the trial court's error, if any, would be harmless. See Williams v. People, 724 P.2d 1279 (Colo.1986).

B.

Defendant also objected to the testimony of the mother of the second victim at trial. She testified that early in the morning on the date of the alleged assault, her child told her that a man had entered her room during the night and sexually assaulted her. In addition, the mother testified that her child had stated that the man had taken her underwear and had threatened to come back and hurt her family if she told anyone what had happened.

An investigating police officer who interviewed the second victim on that same morning, essentially confirmed the mother's testimony.

However, there is no evidence in the record as to the victim's state of mind when the statements were made. Thus, we cannot determine whether the statements were properly admissible as "excited utterances." See W.C.L. v. People, supra.

Nevertheless, the hearsay statements admitted through the testimony of the mother and the investigating officer were cumulative with the second victim's own in-court testimony and the police report prepared by the investigating officer which was offered into evidence by the defense. Therefore, the admission of the victim's hearsay, if error, was harmless. See Williams v. People, supra.

In addition, although neither the mother nor the investigating officer testified on direct examination as to the second victim's description of her assailant, defense counsel interrogated both witnesses extensively on that issue during cross-examination. Thus, because defendant injected the second victim's identification of her assailant into the proceedings, he may not now assert error based upon the admission of those statements at trial. See People v. Valdez, 725 P.2d 29 (Colo.App.1986).

C.

The mother of the third victim also testified at trial, over defendant's objection, that, in the early morning hours of August 17, 1990, her daughter told her that a man had broken into the house that night, assaulted her, and taken her underwear. The mother further testified that her daughter was "standing there with her hands in her mouth crying" as she made these statements to her.

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