People v. Fell

• Decision Date: 05 December 1991
• Docket Number: No. 90CA1625,90CA1625
• Citation: 832 P.2d 1015
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger Courtland FELL, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 1015

832 P.2d 1015

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger Courtland FELL, Defendant-Appellant.

No. 90CA1625.

Colorado Court of Appeals Div. III.

Dec. 5, 1991.

Rehearing Denied Jan. 9, 1992.

Certiorari Denied June 22, 1992.

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

Hurth, Yeager & Sisk, Christopher W. Blakemore, Boulder, for defendant-appellant.

Opinion by Judge CRISWELL.

Defendant, Roger Courtland Fell, appeals the judgments of conviction entered upon jury verdicts finding him guilty of first degree sexual assault, third degree sexual assault, and two counts of incest. He also seeks review of his six year sentence. We affirm.

As bases for reversal, defendant asserts that the trial court improperly admitted prior similar transaction evidence; that the prosecutor made improper remarks during closing argument; that the court inadequately responded to an inquiry from the jury during deliberations; that the court put undue pressure on the jury to complete deliberations; that the evidence was insufficient to support his convictions; and that the sentence imposed was unduly harsh. We conclude that none of the alleged errors warrant overturning the judgment or sentence imposed.

I.

Admission of Similar Transaction Evidence

Defendant first contends that the trial court erred in allowing evidence that he had sexually abused the victim when she was a child. He claims this evidence was too remote in time from and not sufficiently similar to the current charges and was unnecessary and unduly prejudicial. We disagree.

Section 16-10-301(1), C.R.S., (1986 Repl.Vol. 8A) provides that in criminal prosecutions for sexual assault the prosecution may "introduce evidence of other, similar acts or transactions of the defendant for the purpose of showing a common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or intent." It further provides that, prior to admitting the evidence, the court must: (1) find that the prosecution has made out a prima facie case, (2) determine that the evidence offered is relevant, (3) determine that any resulting prejudice is outweighed by the probative value of such evidence, and (4) direct the jury as to the limited purpose for which the evidence is admitted and for which the jury may consider it. This limiting instruction must occur both at the reception of the evidence and at the general charge to the jury.

If the prior transaction involved the defendant and the same victim, such evidence will normally be admissible as probative of plan, scheme, or design. People v. Vollentine, 643 P.2d 800 (Colo.App.1982). The evidence here fits this criterion for admissibility.

The victim testified that her father began to fondle her breasts and groin area when she was eight years old and that he had forcible sexual intercourse with her on New Year's Eve 1974 when she was ten. The victim also described a typical pattern of behavior by the defendant surrounding the abusive episodes. She testified that, prior to the abuse, the defendant would act in a warm and loving manner toward her; however, following the sexual abuse, he would become verbally abusive. The victim testified that the defendant followed this same behavior pattern the night of the December 1988 assault.

The trial court found similarity in the persons and the sexual acts involved, in "the pattern of flattery beforehand and reproach afterwards," and in the defendant's use of the father/daughter relationship for sexual gratification. These findings are supported by ample evidence; thus, no error occurred in the determination of relevance and admissibility.

The defendant claims that the evidence of any prior sexual abuse is too remote in time and, thus, argues that it is so unduly prejudicial as to warrant its exclusion. We disagree.

"There are few absolute rules on the number of years that can separate two instances of conduct without destroying the evidentiary value of one." People v. Adrian, 744 P.2d 768 (Colo.App.1987), aff'd, 770 P.2d 1243 (Colo.1989). An interval of approximately ten to twelve years elapsed between the childhood abuse and the charges for which defendant was being tried. However, the defendant and the victim's mother were divorced during that period and the defendant had had no contact with the victim for four years and only limited contact with her thereafter. Given these circumstances, we conclude that the prior incidents of sexual abuse were not too remote. Consequently, no undue prejudice to defendant resulted from their admission.

The defendant also urges us to place a limitation on the use of similar transaction evidence as defined by § 16-10-301, C.R.S. (1986 Repl.Vol. 8A) to cases involving sexual assault on a child. He argues that this type of evidence should only be allowed in those cases because of the difficulty a child may have in recollecting and articulating the details of a sexual assault.

The defendant asserts that such evidence was unnecessary here because the victim is an adult and can completely remember and describe the occurrences. This contention is without merit.

He provides no direct authority to support such a restriction, and we are unable to find any. See People v. Roberts, 738 P.2d 380 (Colo.App.1986) (17-year-old-daughter in incest prosecution testified to similar transactions with her father over previous ten years). Also, the statute contains no language to support his assertion. Thus, in our view, similar transaction evidence which meets the requirements of § 16-10-301 C.R.S. (1986 Repl.Vol. 8A) is admissible in a prosecution for sexual assault regardless of the age of the victim.

The trial court's ruling to admit evidence of a similar transaction will only be disturbed if an abuse of discretion occurred. Adrian v. People, supra. Here, since the trial court provided all the statutory procedural protections, i.e., it found that the prosecution established a prima facie case, that the evidence was relevant to a material issue in the case, and that the evidence was offered for a valid purpose and was more probative than prejudicial and gave the required limiting instructions, we see no abuse of discretion in its rulings.

II.

Closing Argument

Defendant contends that during initial closing argument and on rebuttal the prosecutor made improper statements concerning inferences that could be drawn from the similar transaction evidence and that these remarks effectively denied him a fair trial. We disagree.

Defendant did not object during either argument. If no contemporaneous objection to alleged prosecutorial misconduct is made at trial, Crim.P. 52(b) limits appellate review to a determination of plain error. People v. Hampton, 746 P.2d 947 (Colo.1987).

Plain error is present only if an appellate court, after reviewing the entire record, can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Wilson v. People, 743 P.2d 415 (Colo.1987). Further, prosecutorial misconduct must be flagrantly improper to be classified as plain error. People v. Constant, 645 P.2d 843 (Colo.1982).

Defendant argues that it was improper for the prosecutor to comment that the evidence of similar transactions between the victim and her father explained the victim's response to the assaults of December 1988 and July 1989 and her failure to report them earlier. Considering the testimony of the victim and the limiting instructions given by the trial court regarding the proper use of the similar transaction evidence, we find no error in the prosecutor's comment.

III.

The defendant also contends that the court erred in its response to a jury inquiry. While we agree that the court's response constituted error, we conclude that, under the circumstances portrayed by this record, that error was harmless.

In instruction number 13 to the jury, the court defined the term, "sexual penetration," as "sexual intercourse, cunnilingus, fellatio, analingus [sic], or anal intercourse.... Any penetration, however slight, is sufficient to complete the crime." This definition repeats the statutory definition of the term. Section 18-3-401(6), C.R.S. (1986 Repl.Vol. 8B). No instruction on the distinction between "sexual penetration" and "sexual intrusion," see § 18-3-401(5), C.R.S. (1986 Repl.Vol. 8B), was given because, at defendant's request, no instruction on second degree sexual assault was given.

Under the circumstances here alleged, sexual penetration is an element of the crime of sexual assault in the first degree, § 18-3-402, C.R.S. (1986 Repl.Vol. 8B), and, of incest, as well, § 18-6-301, C.R.S. (1991 Cum.Supp.); it is not an element of the crime of third degree sexual assault. Section 18-3-404, C.R.S. (1986 Repl.Vol. 8B).

After it commenced its deliberations, the jury sent out a note which said:

The jury requires a clarification of the definition of "sexual penetration." Does penetration by fingers qualify under this definition?

The trial court consulted with counsel, at which time the defendant asked that the jury be given a negative response. Instead, the court replied to the inquiry by informing the jury that:

I am not permitted to give you any additional instructions. The definition of "sexual penetration" which you must employ is contained in Instruction # 13.

Generally, an instruction employing the language of the statute is sufficient if the language is clear. See People v. Freeman, 668 P.2d 1371 (Colo.1983).

Further, absent some showing to the contrary, it is presumed that the jurors understood the court's instructions. People v. Moody, 676 P.2d 691 (Colo.1984).

However, if "a jury affirmatively indicates that it has a fundamental misunderstanding of an instruction it has been given, the basis for a...