People v. Kern
| Decision Date | 18 June 2020 |
| Docket Number | Court of Appeals No. 17CA2003 |
| Citation | 474 P.3d 197 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Scott KERN, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Julia Chamberlin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE NAVARRO
¶ 1 Defendant David Scott Kern appeals the judgment of conviction and sentence entered on jury verdicts finding him guilty of one count of stalking, two counts of tampering with a motor vehicle, six counts of throwing a missile at a vehicle, and six counts of littering. We reject his challenges to the evidence supporting his convictions. In addition, as a matter of first impression, we conclude that the littering counts are not lesser included offenses of the throwing a missile counts. Finally, we recognize that the concurrent sentencing requirement of section 18-1-408(3), C.R.S. 2019, does not apply to fines. Accordingly, we affirm the judgment and sentence.
¶ 2 Kern's ex-wife, I.P., discovered plastic bags filled with foreign substances on her residential property on multiple days in 2016. On April 10, she found several bags on her driveway and front lawn. One had been thrown against the driver's side of her truck, releasing a chemical that melted some of the truck's plastic components and stripped its paint. I.P. linked the chemical's strong ammonia smell with Kern's work at a sheet metal company.
¶ 3 On April 11, the truck's passenger-side door was damaged in the same way: a patch of paint and part of its running board were dissolved, and, once again, a bag containing the distinctive-smelling liquid was nearby. Splatter marks indicated that this bag had been thrown from the street. The total damage to the truck from these two incidents was over $4000.
¶ 4 The following day, I.P.'s husband, D.P., installed surveillance cameras around the house. On April 18, May 29, June 10, and June 13, I.P. and D.P. discovered more bags on and around the driveway. Some contained the corrosive ammonia-smelling substance, while others were filled with used motor oil, a viscous "goo," nails, a vibrator, an eyebolt, and wire. Some contents had splattered onto the vehicles parked there overnight, some stained the concrete, and others killed the nearby grass. On each of these last four dates, the cameras recorded Kern's distinctive GMC 2000 vintage primer-gray two-door pickup truck driving by and objects being launched from its window.
¶ 5 On other occasions around the same time, D.P. captured photographs of Kern driving by the house on his motorcycle and in his truck. For instance, D.P. caught a close-up image of Kern looking towards the house as he drove by in his truck around 1:00 a.m. Additionally, Kern pulled up next to I.P. and D.P. at a traffic light and flipped them off.
¶ 6 The police eventually arrested Kern, and he was charged with multiple offenses. A jury returned the guilty verdicts mentioned earlier, and the trial court sentenced him to seven years in prison for stalking and four years in prison for each tampering count, all to run concurrently. The court also imposed fines totaling $4500 on the other counts.
¶ 7 Kern contends that the trial court erred by admitting into evidence his statements about a "restraining order" against him.1 According to Kern, any probative value of this evidence was substantially outweighed by the danger of unfair prejudice. We need not decide whether the court erred because the alleged error was harmless.
¶ 8 In a pretrial interview, Kern told a police officer that he had driven by I.P.'s house "a few times." That evidence was admitted at trial during the officer's testimony.
¶ 9 In the same interview, Kern referred to a restraining order he said I.P. had obtained against him that required him to stay 1500 feet away from her. Citing CRE 401 and CRE 403, defense counsel objected to admitting the references to the restraining order. The prosecutor argued that the "existence of a restraining order is certainly relevant as a response to the victims having gone through this experience with the Defendant."
The trial court overruled the defense objection, concluding that the statements were Kern's admissions and their probative value was not substantially outweighed by their prejudicial effect.
¶ 10 Defense counsel asked for "the standard limiting instruction," and the court instructed the jury as follows:
You are going to hear statements by Mr. Kern which include an issue of staying fifteen hundred feet from a residence. That evidence is not being offered for proof that there was a restraining order in place. And you should not speculate as to why there may or may have not been a restraining order in place. The issue is merely statements of the Defendant and how it relates to the matter about which the deputy is testifying.
¶ 11 The court then admitted a redacted audio recording of the interview in which Kern mentioned various topics, including a restraining order and being restrained. The prosecutor played the recording for the jury, and the jurors received a transcript to assist them in following it. The transcript, however, was not admitted into evidence and was not given to the jury during deliberations.
¶ 12 Relevant evidence is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." CRE 401. All relevant evidence is admissible unless otherwise provided by constitution, statute, or rule. CRE 402. Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." CRE 403. Still, Rule 403 strongly favors the admissibility of relevant evidence. People v. Gibbens , 905 P.2d 604, 607 (Colo. 1995).
¶ 13 Where the defendant objected to the admission of evidence, we review any error for harmless error. Yusem v. People , 210 P.3d 458, 469 (Colo. 2009). "Under this standard, reversal is required unless the error does not affect the substantial rights of the accused." Id. If a reviewing court can say with fair assurance that, in light of the entire record, the error did not substantially influence the verdict or impair the fairness of the trial, the error may properly be deemed harmless. People v. Johnson , 2019 COA 159, ¶ 48, ––– P.3d ––––.
¶ 14 According to the prosecutor's argument in the trial court as we understand it, the references to a restraining order were relevant to the stalking count to show that Kern knowingly caused distress to I.P. when he continued to go by her house. See § 18-3-602(1)(c), C.R.S. 2019 (). Yet this could be true only if a restraining order was actually in place. The trial court, however, explicitly instructed the jury that it could not infer from this evidence that such an order was in place and could not speculate about why there may or may not have been such an order. We presume that the jury followed the instruction. See Bondsteel v. People , 2019 CO 26, ¶ 62, 439 P.3d 847. As a result, the instruction diminished the probative value of the references to a restraining order.
¶ 15 By the same token, however, the instruction negated the evidence's potential for unfair prejudice. Kern argues that the existence of a restraining order might have implied a "judicial imprimatur" on I.P.'s allegations against him. But the instruction directed the jurors not to infer that such an order existed. Thus, the instruction rendered the references to a restraining order both irrelevant (mostly) and not prejudicial.2
¶ 16 Moreover, the references in the recording were relatively brief and vague. No other evidence mentioned a restraining order, and the prosecutor did not mention the order again during the trial. Although Kern points out that the jurors asked during deliberations to see the transcript of the police interview (which the court declined to give them), this fact does not mean that the jurors focused on the references to a restraining order. Kern also talked about other matters in the interview, including admitting that he had driven by I.P.'s house multiple times.
¶ 17 Finally, the evidence against Kern was considerable. It included (1) multiple videos of Kern's distinctive truck driving by the house and objects being thrown from its window; (2) a close-up photograph of Kern driving his truck past the house; (3) I.P.'s testimony that the ammonia-smelling material found in some bags was reminiscent of the chemicals with which Kern worked at the sheet metal factory; (4) Kern's admission that he drove by the house multiple times; and (5) evidence that Kern flipped off I.P. in traffic around the time of these acts of vandalism.
¶ 18 Consequently, we can say with fair assurance that the admission of the challenged evidence did not substantially influence the verdict or impair the fairness of the trial.
¶ 19 Kern contends that the prosecution failed to prove beyond a reasonable doubt that he caused $1000 or more in damages to I.P.'s truck as to each count of tampering with a motor vehicle. Reviewing de novo, we disagree. See McCoy v. People , 2019 CO 44, ¶ 34, 442 P.3d 379.
¶ 20 To determine whether the evidence was sufficient to support a...
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People v. Montoya
...or admit to alcohol consumption").¶ 40 And we must presume the jury followed the instructions. See People v. Kern , 2020 COA 96, ¶ 14, 474 P.3d 197. As a result, the jury was invited to consider Montoya's refusal as part of the evidence when it did not have the entire video in which Montoya......