People v. Klausner, 00CA2381.

• Court: Court of Appeals of Colorado
• Citation: 74 P.3d 421
• Docket Number: No. 00CA2381.,00CA2381.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Eliah S. KLAUSNER, Defendant-Appellant and Cross-Appellee.
• Decision Date: 16 January 2003

74 P.3d 421

The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Eliah S. KLAUSNER, Defendant-Appellant and Cross-Appellee.

No. 00CA2381.

Colorado Court of Appeals.

January 16, 2003.

Rehearing Denied February 27, 2003.

Certiorari Denied July 21, 2003.¹

Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.

David S. Kaplan, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge KAPELKE.

Defendant, Eliah S. Klausner, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree sexual assault on an at-risk adult, a class two felony, in violation of § 18-6.5-103(7), C.R.S. 2002. The People cross-appeal, contending that the trial court erred in concluding that defendant's offense was not subject to the indeterminate sentencing scheme for sex offenders under § 18-1.3-1004, C.R.S.2002 (formerly § 16-13-804). We affirm the judgment, vacate the sentence, and remand for resentencing.

The victim, a 78-year-old nursing home resident suffering from advanced Alzheimer's disease, was sexually assaulted at her nursing home by defendant, a nursing assistant.

Defendant and the other male staff member on duty the night of the assault were questioned by police and consented to DNA testing. The test results revealed the presence of DNA that was consistent with defendant's, but not that of the other male staff member. After learning the test results, a police officer told defendant, "we found your semen in her." At that point, defendant confessed.

Defendant was not under arrest at the time of the confession. However, immediately after he confessed, he was placed under arrest and waived his Miranda rights.

The police videotaped defendant's confession, waiver of Miranda rights, and subsequent interrogation.

At trial, defendant admitted assaulting the victim, but argued that his actions constituted second degree sexual assault rather than first degree assault because the evidence did not establish that the victim was "physically helpless," as that term is defined by statute. The trial court instructed the jury on both offenses, and the jury returned a guilty verdict on the charge of first degree sexual assault. The court imposed a sentence of sixteen years, but rejected the prosecution's argument that defendant was subject to indeterminate sentencing.

I. Sufficiency of the Evidence

Defendant first contends that the evidence was insufficient to establish that the victim was "physically helpless," as that term is defined by § 18-3-401(3), C.R.S.2002. We disagree.

Challenges to the sufficiency of the evidence to support a criminal conviction require a determination whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty beyond a reasonable doubt. People v. Quick, 713 P.2d 1282 (Colo.1986).

A victim is "physically helpless" if he or she is "unconscious, asleep, or otherwise unable to indicate willingness to act." Section 18-3-401(3).

Our review of the record demonstrates that there was sufficient evidence from which the jury could find that the victim was unable to indicate a willingness to act and therefore "physically helpless" within the statutory definition of that term. There was testimony that the victim was virtually unable to converse and required total care; that she needed assistance in everything she did; that while she could at times respond to a simple yes-or-no question, her answers could be nonsensical or inaccurate; that she was physically incapable of protecting herself against any attack; that she was in a locked facility for her own protection, because she would otherwise wander away; and that the Alzheimer's disease affected her both mentally and physically.

Defendant maintains that the evidence showed the victim was physically able to indicate a willingness to act. In so arguing, defendant points to the fact that the victim had walked toward him at his command to "come here." Further, he argues that the victim was merely mentally incapable of understanding the nature of her actions, rather than physically helpless. However, the evidence showed that the victim's condition affected her physically as well as mentally, such that she was unable to indicate willingness to act. We will not reweigh the evidence nor determine witness credibility. Kogan v. People, 756 P.2d 945 (Colo.1988).

Accordingly, we find no error.

II. Omission of Elements From Instruction

Defendant next contends that the trial court erred by omitting three elements from the jury instruction concerning first degree sexual assault. We perceive no basis for reversal.

The People concede that the instructions given to the jury regarding first degree sexual assault omitted the elements of the defendant's knowledge of the victim's physical helplessness and lack of consent. However, as defendant concedes, there was no objection to the instruction in the trial court. Therefore, the instructional error is subject to a constitutional harmless error or plain error analysis, rather than structural error analysis as urged by defendant. See Griego v. People, 19 P.3d 1 (Colo.2001)

.

A constitutional error is harmless when the reviewing court is confident beyond a reasonable doubt that the error did not contribute to the verdict obtained. Griego v. People, supra.

An error rises to the level of plain error when it so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Bogdanov v. People, 941 P.2d 247 (Colo.1997).

Here, we conclude that reversal is not required under the constitutional harmless error standard. See People v. Auman, 67 P.3d 741, 2002 WL 31121380

(Colo.App. No. 99CA0016, Sept. 26, 2002).

Defendant did not argue that the victim had consented to the sexual assault. Indeed, he admitted to the arresting officer that she did not consent. Nor did defendant claim he had been unaware that the victim was physically helpless. Rather, it was defendant's theory of the case that the victim was simply not physically helpless within the meaning of the statute.

There was overwhelming evidence of the victim's physical limitations and her lack of consent, as well as of defendant's knowledge of those limitations and lack of consent. Because defendant's mental state and the victim's consent were not contested issues at trial, we are confident that the instructional errors did not contribute to the jury verdict. See People v. Auman, supra

(although the instructions misdescribed the element of "knowingly," defendant's admissions at trial precluded a conclusion that a misinterpretation of the standard played a role in the verdict); see also People v. Hunter, 666 P.2d 570 (Colo.1983)(no plain error where court failed to instruct on an element of the crime not in issue); People v. Romero, 689 P.2d 692 (Colo.App.1984)(same).

Therefore, we find no reversible error.

III. Exclusion of Videotaped Confession

Defendant next contends that the trial court abused its discretion in denying admission of his videotaped confession in connection with his cross-examination of the arresting officer. We disagree.

Defendant sought to introduce the videotape of his confession to allow the jury to observe his demeanor at that time and to show the context of his statements. The prosecution objected, arguing in part that the tape included references to defendant's drug use, which the trial court had previously ruled inadmissible. The prosecution further argued that the tape had not been edited to redact the inadmissible statements.

The trial court denied defendant's request to admit the tape, noting that because defendant failed to raise the issue until midtrial, it was not feasible for the court to view the one and one-half hour tape, rule on the admissibility of various statements, and also afford the parties the opportunity to redact inadmissible material.

Defendant has not shown that he suffered any prejudice from the exclusion of the videotape. He does not claim that it contained exculpatory evidence, nor has he demonstrated that its content was inconsistent with the testimony of the arresting officer so as to impeach him. Moreover, defense counsel was permitted to cross-examine the arresting officer at length regarding defendant's demeanor and the full context of defendant's statements. Accordingly, we find no basis for reversal.

IV. Voluntariness of Confession

Defendant next contends that the trial court erred in concluding that his confession was voluntary. Specifically, he argues that his confession to the arresting officer was involuntary because the officer made the deceptive claim that the police had found defendant's semen in the victim, when in fact the DNA evidence only indicated that defendant's DNA was consistent with the semen found in the victim. We find no error.

The determination of whether a confession is voluntary should be based upon the totality of the circumstances, including any official misconduct. People v. Smith, 716 P.2d 1115 (Colo.1986). On review, we are bound by the trial court's factual findings when they are supported by adequate evidence in the record, and we will not lightly disturb the court's finding that a statement was voluntarily made. People v. Trujillo, 784 P.2d 788 (Colo.1990).

While it is improper for a police officer to make false representations regarding the evidence of a defendant's guilt, a single impropriety of this kind, standing alone, will not necessarily render a confession involuntary. People v. Cooper, 731 P.2d 781 (Colo.App.1986).

Defendant relies on People v. Freeman, 668 P.2d 1371 (Colo.1983), in support of his claim that the alleged misrepresentation here was...