People v. Conyac, Court of Appeals No. 09CA2409

Docket NºCourt of Appeals No. 09CA2409
Citation361 P.3d 1005
Case DateJanuary 30, 2014
CourtCourt of Appeals of Colorado

361 P.3d 1005

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
v.

Edward Peter CONYAC, Defendant–Appellant.

Court of Appeals No. 09CA2409

Colorado Court of Appeals, Div. II.

Announced January 30, 2014
As Modified on Denial of Rehearing March 27, 2014


361 P.3d 1014

John W. Suthers, Attorney General, Katharine Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion

Opinion by JUDGE CASEBOLT

¶ 1 Defendant, Edward Peter Conyac, appeals the judgment of conviction entered on jury verdicts finding him guilty of three counts of incest, three counts of sexual assault on a child—position of trust, and one count of sexual assault on a child—position of trust pattern of abuse, all concerning his stepdaughter, KT. He also appeals his habitual criminal adjudication. We affirm.

I. Background

¶ 2 KT informed her mother, LC, that defendant, her stepfather, had molested her. KT told the police and a forensic interviewer that defendant had vaginally and anally assaulted her three times between 2006 and 2008 at three different residences where the family had lived.

¶ 3 During a police interview, defendant confessed to “four or five” incidents of sexual assault, but asserted that KT had initiated it. Defendant's confession mirrored KT's factual allegations concerning the three different residences where the abuse had occurred and the intercourse positions, and in several other particulars discussed below.

¶ 4 Several days after KT's outcry, Dr. Crawford, a pediatrician who specialized in sexual assault examinations, examined KT. Dr. Crawford's report stated that the examination revealed no abnormalities, but also noted that the lack of findings did not necessarily mean that the sexual assaults did not happen.

¶ 5 By the time of trial, defendant had recanted his confession. He contended that KT had fabricated the allegations because she desired to exclude defendant, the household disciplinarian, from the home. Defendant presented evidence that one of KT's friends had confided to KT that she was being abused and that KT was in a sexual education class at school. He argued that KT knew how to make a sexual assault allegation and the consequences of doing so.

¶ 6 Defense counsel asserted in opening statements that defendant's confession was coerced and that he told the police merely what they wanted to hear. Counsel asserted that defendant had confessed only so he could timely participate in an upcoming hearing on a previously-filed dependency and neglect (D & N) case concerning the family, and so that LC could retain custody of the children. Defense counsel also asserted that defendant had confessed because of lack of sleep and the effect of medications he was taking.

¶ 7 During trial, the prosecution was allowed to elicit information that defendant had requested anal sex from LC, but she had declined. Defendant attempted to introduce evidence of KT's prior sexual acts, which included acting out sexually at age nine and a Utah Department of Human Services investigation indicating that she may have sexually assaulted a younger child. The court excluded the evidence.

¶ 8 Defendant also sought to introduce detailed information regarding LC's involvement with Utah and Colorado social services departments. This evidence included LC's belief that at age nine KT may have been sexually abused by her biological father and LC's agreement with Colorado authorities to “support” KT in her allegations of defendant's abuse. The trial court excluded the evidence.

¶ 9 During the prosecution's rebuttal closing argument, the prosecutor responded to defendant's theory that KT had fabricated the allegations and that the confession was false by asserting that defendant's presumption of innocence was “gone”; that to believe defendant's story, the jury would have to conclude that KT told a lie so well that both the police and social services “followed through”; and implored the jury to “do justice” for KT.

¶ 10 Following defendant's conviction, the trial court found defendant was a habitual criminal and imposed seven concurrent sentences of forty-eight years to life in the custody

361 P.3d 1015

of the Department of Corrections. Defendant brought this appeal.

II. Challenge for Cause

¶ 11 Defendant asserts the trial court erred in denying a challenge for cause to Juror M. We disagree.

A. Preservation and Standard of Review

¶ 12 We first reject the People's contention that this issue is unpreserved. While defense counsel's challenge did not expressly state that it was for cause, the challenge took place in chambers, the trial court understood it to be a causal challenge, and the context of the challenge makes clear it was a challenge for cause. We thus conclude the issue is preserved.

¶ 13 We review the trial court's denial of a challenge for cause for an abuse of discretion and will reverse its determination only if there is no evidence in the record to support it. People v. Palomo, 272 P.3d 1106, 1108 (Colo.App.2011). The abuse of discretion standard gives deference to the trial court's credibility assessments, recognizing that court's unique perspective in evaluating the demeanor and body language of live witnesses, and it serves to discourage an appellate court from second-guessing the trial court's assessments based on a cold record. People v. Samson, 2012 COA 167, ¶ 15, 302 P.3d 311.

¶ 14 We review the entire voir dire to determine whether the trial court abused its discretion. Carrillo v. People, 974 P.2d 478, 486 (Colo.1999).

B. Applicable Law

¶ 15 To ensure a defendant's right to a fair trial before an impartial jury, a trial court must sustain a challenge for cause when “[t]he existence of a state of mind in the juror evinc[es] enmity or bias toward the defendant or the state.” § 16–10–103(1)(j), C.R.S.2013. However, section 16–10–103(1)(j) also states that no prospective juror “shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.” Id. Thus, a trial court is entitled to afford considerable weight to a juror's commitment to set aside biases and to be fair. Samson, ¶ 14.

¶ 16 A juror who cannot adhere to the principle that a defendant has a presumption of innocence must be excused. People v. Gurule, 628 P.2d 99, 102 (Colo.1981).

C. Application

¶ 17 Here, during a chambers interview to discuss her juror questionnaire responses, Juror M explained that, seven years previously, her niece had been sexually assaulted and murdered by her sister's live-in boyfriend, and that she had testified at the trial against her sister and the boyfriend. When the trial court inquired whether her experience would affect her ability to be a fair and impartial juror, she stated:

I don't believe so. I have been a preschool teacher for twelve years. I'm not currently right now, but I understand there are things that, you know, children may make up. Adults lie, children lie. There are, you know, everyone has the right to be, you know, to prove their innocence, or prove their guilt, whatever the case may be.

(Emphasis added.)

¶ 18 In response to the court's questioning, Juror M stated that she could set aside the events in her past, follow the instructions of the court, and decide the case based on the evidence. And, during questioning by both defense counsel and the prosecutor, Juror M stated that, although the case would be hard for her, she could consider the evidence in the case and make a decision and follow the presumption of innocence, recognizing that defendant did not have to prove his innocence. She also stated that her experience gave her a better view of the case because she would be able to stay fair and balanced.

¶ 19 Given the full voir dire discussion with Juror M, we perceive no abuse of discretion in the court's determination that she had not

361 P.3d 1016

manifested unyielding bias for or against either party. Hence, we reject defendant's contention.

III. Expert Witness Testimony

¶ 20 Defendant asserts that the trial court erroneously allowed two unqualified prosecution witnesses to testify as experts about unreliable, irrelevant, and prejudicial sexual offender profiles and the statistical prevalence of physical evidence in sex assault cases. We disagree.

A. Standard of Review

¶ 21 A trial court has broad latitude in determining whether a witness is qualified to be an expert witness. People v. Whitman, 205 P.3d 371, 383 (Colo.App.2007).

¶ 22 We review the trial court's admission of expert testimony for an abuse of discretion, People v. Tunis, 2012 COA 126, ¶ 3, 2012 WL 3127296, and will not overturn the court's determination...

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36 practice notes
  • People v. Abu-Nantambu-El, Court of Appeals No. 14CA1234
    • United States
    • Colorado Court of Appeals of Colorado
    • December 14, 2017
    ...so obvious that a trial judge should have been able to avoid it without benefit of the objection?" People v. Conyac , 2014 COA 8M, ¶ 54, 361 P.3d 1005. Three factors suggest otherwise.¶ 146 First, how could the trial court have known that these convictions potentially implicated prosecution......
  • People v. Cardman, Court of Appeals No. 14CA0202
    • United States
    • Colorado Court of Appeals of Colorado
    • September 22, 2016
    ...and so obvious that a trial judge should have been able to avoid it without benefit of objection." People v. Conyac , 2014 COA 8M, ¶ 54, 361 P.3d 1005 ; People v. Ujaama , 2012 COA 36, ¶ 42, 302 P.3d 296. "The defendant must also establish that the error was so grave that it undermined the ......
  • People v. Carter, Court of Appeals No. 17CA2331
    • United States
    • Colorado Court of Appeals of Colorado
    • March 11, 2021
    ...of conviction. Hagos , ¶ 14. The defendant has the burden of showing that any error was plain. People v. Conyac , 2014 COA 8M, ¶ 54, 361 P.3d 1005 ; People v. Boykins , 140 P.3d 87, 95 (Colo. App. 2005).B. Analysis¶ 50 Carter and the People agree that the district court allowed a constructi......
  • People v. Tibbels, Court of Appeals No. 17CA0620
    • United States
    • Colorado Court of Appeals of Colorado
    • November 27, 2019
    ...passions or prejudices the jury. People v. Oliver , 745 P.2d 222, 228 (Colo. 1987) ; see, e.g. , People v. Conyac , 2014 COA 8M, ¶ 147, 361 P.3d 1005 ("Prosecutors may not pressure jurors by suggesting that guilty verdicts are necessary to do justice for a sympathetic victim."). But a prose......
  • Request a trial to view additional results
36 cases
  • People v. Abu-Nantambu-El, Court of Appeals No. 14CA1234
    • United States
    • Colorado Court of Appeals of Colorado
    • December 14, 2017
    ...so obvious that a trial judge should have been able to avoid it without benefit of the objection?" People v. Conyac , 2014 COA 8M, ¶ 54, 361 P.3d 1005. Three factors suggest otherwise.¶ 146 First, how could the trial court have known that these convictions potentially implicated prosecution......
  • People v. Cardman, Court of Appeals No. 14CA0202
    • United States
    • Colorado Court of Appeals of Colorado
    • September 22, 2016
    ...and so obvious that a trial judge should have been able to avoid it without benefit of objection." People v. Conyac , 2014 COA 8M, ¶ 54, 361 P.3d 1005 ; People v. Ujaama , 2012 COA 36, ¶ 42, 302 P.3d 296. "The defendant must also establish that the error was so grave that it undermined the ......
  • People v. Carter, Court of Appeals No. 17CA2331
    • United States
    • Colorado Court of Appeals of Colorado
    • March 11, 2021
    ...of conviction. Hagos , ¶ 14. The defendant has the burden of showing that any error was plain. People v. Conyac , 2014 COA 8M, ¶ 54, 361 P.3d 1005 ; People v. Boykins , 140 P.3d 87, 95 (Colo. App. 2005).B. Analysis¶ 50 Carter and the People agree that the district court allowed a constructi......
  • People v. Tibbels, Court of Appeals No. 17CA0620
    • United States
    • Colorado Court of Appeals of Colorado
    • November 27, 2019
    ...passions or prejudices the jury. People v. Oliver , 745 P.2d 222, 228 (Colo. 1987) ; see, e.g. , People v. Conyac , 2014 COA 8M, ¶ 147, 361 P.3d 1005 ("Prosecutors may not pressure jurors by suggesting that guilty verdicts are necessary to do justice for a sympathetic victim."). But a prose......
  • Request a trial to view additional results

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