People v. Frye, 94SC31

Citation898 P.2d 559
Decision Date26 June 1995
Docket NumberNo. 94SC31,94SC31
PartiesThe PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Ronald S. FRYE, Respondent/Cross-Petitioner.
CourtSupreme Court of Colorado

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Paul Koehler, Asst. Atty. Gen., Criminal Enforcement Section, Denver, for petitioner/cross-respondent.

David F. Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, for respondent/cross-petitioner.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari to review the decision of the Colorado Court of Appeals in People v. Frye, 872 P.2d 1316 (Colo.App.1993), which affirmed the judgment of conviction of Ronald S. Frye for the crimes of second degree sexual assault and menacing with a deadly weapon. The court of appeals concluded that according to Robles v. People, 160 Colo. 297, 417 P.2d 232 (1966), consistency of verdicts is required for convictions to be upheld on appellate review but that the jury's verdict finding Frye guilty of menacing with a deadly weapon was consistent with the verdict acquitting him of first degree sexual assault. We conclude that consistency of verdicts is not required. Accordingly, although our rationale differs from that of the court of appeals, we affirm the judgment of that court.

I.

Because consistency of verdicts is at issue here, we set forth the evidence in some detail.

On the evening of February 25, 1991, Ronald S. Frye, a twenty-one-year-old man who had recently moved from Chicago, Illinois, to Denver, Colorado, was arrested for allegedly sexually assaulting a woman in her apartment. He was subsequently charged with first degree burglary, 1 second degree burglary, 2 sexual assault in the first degree, 3 and menacing with a deadly weapon. 4 He was also charged with two counts of mandatory sentencing for a crime of violence. 5 Frye gave notice to the prosecution that he generally denied the charges and intended to assert the affirmative defense of consent to the allegedly illegal acts.

Frye's jury trial began on August 12, 1991, in the Arapahoe County District Court. The first person to testify for the prosecution was the alleged victim. 6 Doe, a twenty-year-old woman, testified that she had moved to the Denver area in November of 1990 from Pueblo, Colorado, where she had been living with her parents. She further testified that she had rented a one bedroom apartment on the third floor of an apartment complex on South Dahlia Street that she shared with a roommate. The living room of the apartment had a large window that looked out onto the walkway in front of the apartment and into the courtyard area of the apartment complex.

Doe testified that on the evening of February 25, 1991, at approximately 8:40 p.m., she was alone at home and engaged in a long-distance telephone conversation in the living room of her apartment when she saw a man, later identified as Ronald S. Frye, walk in front of her apartment window. She waved her hand at Frye, who stopped and waited until she had completed her telephone conversation, a period of approximately fifteen minutes. Doe said that she had motioned to Frye because she was new to Denver and was hoping to meet a friend. She noticed that he had two liquor bottles in his hand and that he set the bottles on the ledge in front of her apartment and watched her until she hung up the telephone and opened the front door.

Doe further testified that after she opened the front door, she and Frye chatted for approximately five minutes. Frye said something to the effect of "You must be awful good looking to have me wait so long," to which Doe did not respond. Doe then invited Frye into her apartment. Frye set the two liquor bottles on the floor and sat down in a chair near the front door. Doe sat down at the foot of an adjacent pull-out sofa bed 7 and she and Frye shared Frye's one remaining cigarette.

Doe then turned on her stereo, after which Frye moved from the chair in which he had been sitting and sat down next to Doe on the sofa-bed. The two continued to converse and Frye attempted to put his arm around Doe, but she again stood up to adjust the music on her stereo. Frye stated that he was worried about being seen by some gang members and went to the window and closed the curtains. Both Doe and Frye sat back down on the sofa-bed and the two talked for a while longer. Frye indicated that he was intending to obtain some marihuana later that night, and Doe said she would be interested in some.

Although Doe could not remember precisely how many times she rose from the sofa-bed, she testified that while sitting next to Frye, he leaned over and tried to kiss her and at the same time "just rolled himself" on top of her. She further testified that Frye reached for something at his back with his right arm, pulled out a pistol, and held it to her left temple. Frye ordered her to remove her pants, underpants, and shoes, and then raped her while pointing the gun at her left temple.

Doe further testified that after a period of time, she yelled for help but that no one heard her. Frye told her to shut up. Doe stated that over the next three hours, Frye repeatedly raped her vaginally, anally, and orally, in various parts of the apartment, including on the kitchen counter and the living room floor and in the bathroom. Doe stated that throughout the ordeal, Frye kept the gun pointed at her head.

Doe testified that, at one point, while she was being sexually assaulted on the floor of the living room next to where the stereo was located, she reached up and turned the volume of the music on to its fullest extent, hoping to trigger a noise complaint and arouse the attention of the apartment complex's security guard. Sometime thereafter, Doe heard a knocking on the door and thought that it was the security guard. She asked Frye if she could turn down the volume on the stereo and he said "no." She then asked him if she could answer the door. Frye asked whether she was expecting anyone, to which she replied "no." Frye refused to allow Doe to answer the door and continued sexually assaulting her on the sofa-bed.

Sometime later, Doe and Frye again heard knocking on the door. Doe testified that she thought it was the police authorities in response to the continued loud music from her stereo. When the knocking persisted, Frye ordered Doe into the bathroom, where he forced her to perform oral sex while pointing the gun at her head. He asked her if she had a boyfriend and she replied falsely that she did.

Doe stated that she finally convinced Frye that she had to urinate and he left the bathroom and got dressed. He then returned to the bathroom, wearing his clothes, and began fixing his hair. Doe did not see the gun at that time. Frye told Doe something to the effect of "I don't want to hurt nobody, but I will if I have to protect myself." While Doe was seated naked on the toilet, several police officers removed the screen from the apartment window, drew back the curtain, and shined a flashlight inside. The officers asked Frye if everything was all right. While Frye was speaking to the officers and stating that everything was fine, Doe was gesturing to the officers and mouthed the word "help" in a manner so that Frye could not see or hear her. The police officers asked Frye to open the front door of the apartment and Doe ran into the bedroom. After entering the apartment, one of the police officers went into the bedroom where Doe was waiting. Doe informed the officer that Frye had just raped her and that he was armed with a gun.

Steven Poindexter, the security guard at the apartment complex where Doe resided, was the next person to testify for the prosecution. He stated that on the night in question, he had heard loud music from a stereo emanating from Doe's apartment. He testified that he first knocked on the door at 11:00 p.m., received no answer, and then returned at 11:30 p.m. and knocked again. When no one responded the second time, Poindexter returned to his office and called the police because he thought someone was home and that something might be wrong.

Poindexter returned to Doe's apartment with three police officers at approximately midnight. One of the officers knocked on the door with his flashlight. When no one responded, the officers asked Poindexter for permission to remove the screen from the apartment window, to which he agreed. According to Poindexter, when the officers removed the screen and looked inside with the aid of the flashlight, they saw Doe sitting naked on the toilet and Frye putting on his shirt. Poindexter testified that Doe appeared to be extremely upset, that she had her head down, and that she was crying. He later saw her being escorted out of the apartment complex by paramedics, staggering as though she was hurt in some way and crying.

James Dillon, of the Glendale Police Department and one of the officers who responded to Poindexter's call, also testified for the prosecution. Dillon stated that after they entered the apartment, he saw Doe emerging from the bathroom and entering the living room--hunched over in an attempt to cover herself. Dillon testified that Doe waved her arms at him to attract his attention and that she mouthed the word "help." Dillon stated that Doe appeared scared and that she was shaking; he followed her into the bedroom where Doe tried to speak but her voice was inaudible. He further testified that Doe continued to back into the bedroom, all the way into the back of the closet before she was able to say that she had just been raped. Doe told Dillon that she did not know Frye and that he was armed. Dillon returned to the living room of the apartment where he conducted a "pat down" of Frye for weapons. Dillon did not find a...

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