People v. Geisick, Court of Appeals No. 14CA2276

• Decision Date: 28 July 2016
• Docket Number: Court of Appeals No. 14CA2276
• Citation: 411 P.3d 186
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Benjamin Jacob GEISICK, Defendant–Appellant.
• Court: Colorado Court of Appeals

411 P.3d 186

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

v.Benjamin Jacob GEISICK, Defendant–Appellant.

Court of Appeals No. 14CA2276

Colorado Court of Appeals, Div. II.

Announced July 28, 2016

Cynthia H. Coffman, Attorney General, Ethan Zweig, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Kathryn Heffron, Deputy State Public Defender, Greeley, Colorado, for Defendant–Appellant

Opinion by JUDGE ASHBY

¶ 1 Defendant, Benjamin Jacob Geisick, appeals the judgment of conviction entered on jury verdicts finding him guilty of resisting arrest, obstructing a peace officer, and possession of drug paraphernalia. We affirm.

I. Background

¶ 2 Geisick got into an argument with his girlfriend in their motel room. The motel manager overheard the argument, confronted Geisick, and then called the police. Officer Steinhour was the first officer to arrive and he contacted the motel manager. While Officer Steinhour and the manager were talking, the manager saw Geisick walking away from the motel and pointed Geisick out. Officer Steinhour followed Geisick on foot and verbally attempted to stop Geisick so that they could talk. A physical struggle between Officer Steinhour and Geisick occurred, but it ended quickly and Geisick ran away. Geisick hid behind a tree as other officers arrived on the scene and, after trying to escape on foot again, Geisick was ultimately tackled and arrested by the later responding officers.

¶ 3 Based on the physical struggle with Officer Steinhour, the prosecution charged Geisick with second degree assault on a peace officer and attempting to disarm a peace officer. And because officers found a pipe, which Geisick admitted was used to smoke methamphetamine, and other items in his pockets, the prosecution also charged Geisick with possession of drug paraphernalia.

¶ 4 At trial, both Officer Steinhour and Geisick testified and offered significantly different descriptions of their struggle. Officer Steinhour testified that Geisick initiated the physical altercation between the two of them and that Geisick punched him in the face, hit him in the head with his radio microphone, and attempted to take his gun. In contrast, Geisick testified that Officer Steinhour initiated the physical altercation by grabbing him and throwing him into a wall, and denied that he ever punched the officer, hit him in the head with the radio microphone, or attempted to take his gun. Geisick did admit, however, that a physical struggle occurred and that he ran away from Officer Steinhour and the other officers who arrived later.

¶ 5 At the close of evidence, Geisick asked the trial court to instruct the jury on two lesser nonincluded offenses that the People did not charge: resisting arrest and obstructing a peace officer. The trial court, at the request of Geisick, found that there was evidence to support both of the lesser nonincluded offenses and instructed the jury on those offenses. The jury found Geisick not guilty of the charged offenses of assault on a peace officer and attempting to disarm an officer, but found him guilty of the uncharged lesser nonincluded offenses of resisting arrest and obstructing a peace officer in addition to the charged offense of possession of drug paraphernalia. The trial court convicted and sentenced Geisick accordingly.

¶ 6 Geisick appeals his convictions, arguing that (1) the trial court erred by denying his challenge for cause to a potential juror; (2) the trial court erred by admitting inadmissible hearsay testimony; (3) the evidence was insufficient to support his resisting arrest and obstruction convictions; and (4) the cumulative effect of these errors denied him a fair trial. We consider and disagree with each of these arguments in turn.

II. Challenge for Cause

¶ 7 Geisick argues that the trial court reversibly erred by denying his challenge for cause to a potential juror whom he then used a peremptory challenge to dismiss. We reject this argument because Geisick fails to explain how this error prejudiced him.

¶ 8 As the supreme court explained in People v. Novotny , 2014 CO 18, 320 P.3d 1194, to obtain relief for an improperly denied challenge for cause a defendant must establish prejudice by demonstrating a reasonable probability that the error contributed to the verdict. See id. at ¶ 27 ; People v. Wise , 2014 COA 83, ¶ 28, 348 P.3d 482 ("[T]he court in Novotny made clear that the mere loss of a peremptory challenge, standing alone, is insufficient to require reversal."). Here, the juror in question did not sit on the jury and Geisick fails to articulate in his opening brief how the alleged error prejudiced him or contributed to the verdict. We therefore reject this argument.

III. Hearsay

¶ 9 Geisick next argues that the trial court erred by admitting hearsay testimony about the physical altercation with Officer Steinhour from an officer who did not witness the altercation. We review for abuse of discretion. See Compan v. People , 121 P.3d 876, 883 (Colo. 2005). But even if a court abuses its discretion by admitting hearsay, we will not reverse if the error was harmless. See Crider v. People , 186 P.3d 39, 42 (Colo. 2008). An error is harmless if there is no reasonable probability that it contributed to the defendant's conviction. Id. at 44. We conclude that any error in admitting the testimony was harmless.

¶ 10 Officer Steinhour testified in detail about what happened before, during, and after the struggle with Geisick. In addition to this testimony, the People elicited testimony from the officer who interviewed Officer Steinhour about the struggle but did not witness it himself. The interviewing officer testified extensively about the struggle based on what Officer Steinhour told him in the interview.

¶ 11 Geisick objected to this testimony on the ground that it was hearsay. The trial court agreed that the testimony was potentially inadmissible hearsay because the interviewing officer was testifying to the truth of Officer Steinhour's statement about the struggle based only on having heard the statement, not having actually witnessed the struggle. See CRE 801(c). But the trial court overruled the objection and admitted the interviewing officer's testimony on two alternative hearsay exception grounds: (1) Officer Steinhour's statement to the interviewing officer was an excited utterance, rendering the interviewing officer's testimony about it admissible under CRE 803(2) ; and (2) Officer Steinhour's statement was a prior consistent statement as defined by CRE 801(d)(1).

¶ 12 We question both of the trial court's alternative rulings admitting the testimony. First, there is little in the record to support a conclusion that Officer Steinhour's entire statement to the interviewing officer was an excited utterance. Although the interviewing officer testified that Officer Steinhour appeared to be coming down from an adrenaline rush at the time of the interview, the interview took place after Officer Steinhour had left the site of the struggle, chased Geisick for several blocks, returned to the site of the struggle, and collected items that he had lost from his duty belt during the struggle. Very little in the record suggests that Officer Steinhour's statement was a spontaneous reaction to an event so startling that it continued to render his capacity for reflective thought inoperative. See Compan , 121 P.3d at 882 (For a statement relating to an event to qualify as an excited utterance, "the event or condition must be sufficiently startling to render normal reflective thought processes of the declarant inoperative, and the statement must be a spontaneous reaction to the event rather than the result of reflective thought."). To the contrary, the interviewing officer testified that he had waited until "everything calmed down" to interview Officer Steinhour.

¶ 13 Second, we question whether Officer Steinhour's entire statement qualified as nonhearsay under CRE 801(d)(1). As relevant here, this rule provides that a statement is not hearsay if "the declarant testifies at the trial ... and is subject to cross-examination concerning the statement, and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive." CRE 801(d)(1). Although Officer Steinhour was cross-examined extensively about the struggle itself, his cross-examination barely, if at all, addressed the statement he gave to the interviewing officer.

¶ 14 But even if we assume that the trial court erred by admitting the interviewing officer's testimony, we conclude that the error was harmless. The interviewing officer's testimony was not that of an eyewitness; the jury was aware that the interviewing officer was testifying only about what Officer Steinhour said in the interview. And because Officer Steinhour himself described the incident in detail, it is unlikely that another officer's testimony about Officer Steinhour's earlier description of the incident had a significant impact on the jury—especially because the prosecutor did not argue that the consistency of Officer Steinhour's descriptions of the incident made them more believable. Indeed, the jury apparently did not believe large parts of Officer Steinhour's descriptions of the incident because it found Geisick not guilty of the assault and attempting to disarm charges.

IV. Sufficiency of the Evidence

¶ 15 Geisick also argues that the evidence was insufficient to support his convictions for resisting arrest and obstructing a peace officer. We conclude that Geisick waived this argument and therefore do not address its merits.

¶ 16 Waiver occurs when a party intentionally relinquishes a known right. See United...