People v. Everett

• Citation: 250 P.3d 649
• Decision Date: 04 February 2010
• Docket Number: No. 07CA2368.,07CA2368.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Barry Alan EVERETT, Defendant–Appellant.
• Court: Court of Appeals of Colorado

250 P.3d 649

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

v.Barry Alan EVERETT, Defendant–Appellant.

No. 07CA2368.

Colorado Court of Appeals, Div. VI.

Feb. 4, 2010.

John W. Suthers, Attorney General, Jonathan P. Fero, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.The Noble Law Firm, L.L.C., Antony M. Noble, Lakewood, Colorado, for Defendant–Appellant.Opinion by Judge BERNARD.

Defendant, Barry Alan Everett, appeals the judgment of conviction entered upon a jury verdict finding him guilty of sexual assault under section 18–3–402, C.R.S.2009. He also appeals the sentence imposed. We affirm the judgment of conviction, vacate the sentence, and we remand for resentencing with directions.

I. Background

The victim in this case, J.H., was an eighteen-year-old woman. According to her testimony, she was in Fort Collins, drinking with friends, on a night in August 2002. While waiting for them, she asked defendant, a passerby, for a cigarette. He said that she could get one from his friend at a nearby house.

J.H. walked with defendant to a house, where they sat on the grass and talked. Defendant tried to kiss her, and she stated that she wanted to leave.

Defendant forcibly held J.H. down, despite her struggles. He choked her until she lost consciousness. When she came to, he was penetrating her.

She told him to stop and struggled against him, but he choked her again, and she passed out. When she next regained consciousness, she realized that defendant had placed her legs on his shoulders, and that he was holding her down with his weight. He continued to have forced sexual intercourse with her.

He made J.H. call him “Big Daddy” in the course of the assault; at one point, he observed that she was a virgin; and he told her that he was not going to “bust” (ejaculate) inside of her. When he concluded the attack, he whispered in her ear, “I'm sorry, I just got out of prison, I had to do this.” He said his name was “Eric.” Then he ran off.

At trial, in September 2007, the prosecution presented:

• J.H.'s testimony concerning the assault;

• Physical evidence, including photographs showing bruises on J.H.'s neck and jaw and scratches on her back, and J.H.'s clothing that defendant had torn in the course of the sexual assault;

• The testimony of two people who assisted J.H. after the attack, who described her disheveled appearance and her hysterical demeanor;

• The testimony of a jail inmate to whom defendant admitted the sexual assault, providing graphic details that were consistent with J.H.'s description of the crime; and

• Testimony from a forensic scientist that DNA in semen recovered from J.H. during a rape kit examination shortly after the attack matched defendant's DNA.

Relying on CRE 404(b), the prosecution also presented evidence concerning another sexual assault involving defendant that occurred in Pennsylvania. There, in 2003, defendant sneaked into an apartment where an eighteen-year-old woman, whom he had known for three days, was sleeping. The woman woke up in her bed with defendant lying next to her. Defendant climbed on top of her as she lay on her back, forcibly put her legs on his shoulders, and held her down with his weight. She resisted, and repeatedly told him to stop, but he removed her pants and penetrated her anally. When he finished attacking her, he shook her hand. Defendant had previously told this woman that his name was “Dylan.”

Before trial, the prosecution argued that testimony about the Pennsylvania sexual assault was admissible under CRE 404(b) for the purposes of establishing defendant's common plan, motive, intent, and opportunity. The trial court, in an order issued in January 2007, determined that the evidence was not admissible for those purposes because it was not logically relevant. The evidence was not logically relevant because the Pennsylvania sexual assault and the sexual assault here were “dissimilar.”

According to the trial court, these two incidents were dissimilar because the Pennsylvania sexual assault involved anal intercourse and this case involved vaginal intercourse; the Pennsylvania sexual assault occurred inside an apartment, while this assault occurred outside; the Pennsylvania sexual assault involved physical force, while this case involved threats and choking; and defendant remained with the victim in the Pennsylvania sexual assault, while he fled the scene immediately after the sexual assault here.

However, the trial court also expressly noted that its analysis might be different if defendant pursued a defense theory that the victim in this case had consented to have sex with him. The court reserved ruling on whether the Pennsylvania sexual assault would be admissible to rebut a defense theory of consent.

In August 2007, after defendant filed a document stating that he intended to rely on consent as a theory of defense, the prosecution filed a motion asking the trial court to reconsider its prior ruling excluding evidence of the Pennsylvania sexual assault. During the hearing on the prosecution's motion, the court recognized that the degree of similarity necessary to permit the introduction of evidence of other acts varies with the purpose for which such evidence is introduced. For example, the court noted that, to prove identity, there must be greater similarity between the charged crime and the other act, than when the other act evidence is introduced to prove intent.

Then, the trial court reconsidered its previous order, and allowed the prosecution to introduce testimony about the Pennsylvania sexual assault “to refute a defense of consent,” or to prove “motive, intent, common plan, [or] modus operandi.” The court stated that the testimony about the Pennsylvania sexual assault was relevant, had “significant probative value, and goes directly to the issue presented by the defense of consent, which relates directly to the defendant's motive and intent.”

At trial, immediately before the victim in the Pennsylvania sexual assault testified, the trial court further limited the purposes for which her testimony could be used. The court instructed the jury that testimony about the Pennsylvania sexual assault “may be used as evidence only for the purpose of refuting the defense of consent” and the jury “should not consider it as evidence for any other purpose.”

Defendant did not testify at trial. The jury convicted him of sexual assault, a class three felony. At the sentencing hearing, the trial court determined that this crime qualified as a crime of violence, and sentenced him to the statutory maximum of thirty-two years to life in prison.

II. Pennsylvania Sexual Assault

A. Admission of Evidence

Defendant contends that the trial court erred by admitting evidence of the Pennsylvania sexual assault. We disagree.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. CRE 404(b); People v. Czemerynski, 786 P.2d 1100, 1108 (Colo.1990); see § 16–10–301, C.R.S.2009.

In evaluating the admissibility of CRE 404(b) evidence, a trial court must determine whether (1) the evidence relates to a material fact; (2) the evidence is logically relevant; (3) the logical relevance is independent of the intermediate inference, prohibited by CRE 404(b), that the defendant has a bad character; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. People v. Spoto, 795 P.2d 1314, 1318 (Colo.1990).

Trial courts have “substantial discretion” to decide whether to admit evidence of other acts under CRE 404(b). Masters v. People, 58 P.3d 979, 996 (Colo.2002). We will uphold the trial court's ruling unless it was manifestly arbitrary, unreasonable, or unfair. People v. Rath, 44 P.3d 1033, 1043 (Colo.2002).

On review, a trial court's decision to admit evidence of other acts may be supported by the court's stated rationale. It may also be defended by any ground supported by the record, even if that ground was not considered by the trial court. People v. Quintana, 882 P.2d 1366, 1371 (Colo.1994).

Further, we will not overturn a conviction because the court employed an erroneous standard in analyzing the admissibility of the other acts evidence under CRE 404(b) as long as two conditions are met. The evidence must be admissible, and a proper foundation must have been laid to admit it. People v. Martinez, 36 P.3d 154, 158 (Colo.App.2001).

Here, in a written order, the trial court originally denied the prosecution's motion to admit evidence of an alleged prior sexual assault, but reserved the right to admit the evidence if defendant pursued a defense of consent. Later, defendant disclosed that he would pursue the consent defense at trial; the prosecution renewed its motion to admit the other acts evidence; and the trial court held a hearing on the matter where it admitted the evidence for the limited purpose of refuting defendant's defense of consent.

Our review of the record leads us to conclude that the trial court did not abuse its substantial discretion in admitting testimony about the Pennsylvania sexual assault because the decision to admit that evidence was not manifestly arbitrary, unreasonable, or unfair. See Rath, 44 P.3d at 1043–44. We further conclude that the record contains sufficient evidence to support a determination that the four Spoto requirements were satisfied. Even assuming that the trial court did not apply the proper legal standards, we conclude that the evidence of the Pennsylvania sexual assault was admissible, for reasons explained in more detail below, and that a proper foundation was laid to admit it. See Quintana, 882 P.2d at 1371; Martinez, 36 P.3d at 158.

The trial court was aware of the controlling legal...