People v. McNeely

• Citation: 222 P.3d 370
• Decision Date: 28 May 2009
• Docket Number: No. 06CA2519.,06CA2519.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth Maurice McNEELY, III, Defendant-Appellant.
• Court: Court of Appeals of Colorado

222 P.3d 370

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth Maurice McNEELY, III, Defendant-Appellant.

No. 06CA2519.

Colorado Court of Appeals, Div. VII.

May 28, 2009.

John W. Suthers, Attorney General, Christopher Y. Bosch, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

The Dvorchak Law Office, P.C., Kim Dvorchak, Littleton, Colorado, for Defendant-Appellant.

Opinion by Judge CONNELLY.

Defendant, Kenneth Maurice McNeely, III, was convicted after a jury trial of one count of sexual assault on a child, and the court sentenced him to four years to life in prison. We affirm the conviction but remand to correct a clerical error in the mittimus.

I. Background

This case arose from an alleged sexual relationship between the twenty-year-old defendant and a thirteen-year-old neighbor girl. The jury acquitted on two counts involving earlier incidents but convicted on a third count involving the last incident, which allegedly occurred in February 2005. The victim testified she and defendant had oral and coital sex that month in defendant's house.

II. Discussion

A. Sufficiency of Evidence

Defendant argues the evidence was legally insufficient to convict him of the February 2005 assault. We review the record in the light most favorable to the prosecution to determine whether any rational juror could find defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); People v. Lehnert, 163 P.3d 1111, 1115 (Colo. 2007); People v. Dunlap, 124 P.3d 780, 819 (Colo.App.2004).

The trial evidence easily passes this deferential standard of review. The victim's testimony, if credited by the jury, sufficed to prove defendant guilty of sexual assault on a child. See § 18-3-405(1), C.R.S.2008 ("Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim.").

Defendant argues the victim was not a credible witness. But with rare exceptions, "the credibility of witnesses is solely within the province of the jury." People v. Gonzales, 666 P.2d 123, 128 (Colo.1983); see also Kansas v. Ventris, ___ U.S. ___, ___, 129 S.Ct. 1841, 1847 n. *, 173 L.Ed.2d 801, ___ (2009) ("[o]ur legal system ... is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses"). Testimony may be ruled incredible as a matter of law in those rare cases, such as where "a witness describes events she could not possibly have seen or that are not possible under the laws of nature." People v. Leonard, 167 P.3d 178, 182 (Colo.App. 2007) (internal quotations omitted). That high standard is not met here. While there was no direct corroboration of the actual sexual conduct, text messages and third-party testimony corroborated other aspects of the victim's description of her overall relationship with defendant. It was for the jury to evaluate credibility in light of all the evidence, and we cannot second-guess its verdict.

Defendant argues "this was an all or nothing case of witness credibility" and there was "no plausible theory upon which a rational trier of fact could find [him] guilty of the last incident only." This argument, which asks us to invalidate the conviction on the third count as purportedly inconsistent with the acquittals on the first two counts, fails as a matter of law. It is now settled that a conviction on one substantive count may not be set aside simply because it is factually inconsistent with the jury's acquittal on a related substantive count. See People v. Saldana, 899 P.2d 208, 211-12 (Colo.1995); People v. Frye, 898 P.2d 559, 570 (Colo.1995).

B. The Prosecutor's Rebuttal Closing Argument

Defendant challenges the propriety of statements made by the prosecution in closing argument. Trial courts have discretion to decide whether a closing argument is improper and, if so, how best to remedy it. See Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo.2005).

Defendant principally challenges arguments emphasizing one witness's religious status: the prosecutor first argued the witness was "an admitted youth pastor, a man of God" (the court sustained an objection and instructed the jury to disregard this); then referred to the witness's "occupation" (the court again sustained an objection); and finally said the jury could look at the credibility instruction and recall the witness's occupation as "a youth pastor at his church." This predictably spawned another objection, with defense counsel arguing the witness's occupation was not a proper consideration and requesting the court to re-read to the jury the general instruction on witness credibility. The court responded by reminding the jury of its prior instruction on witness credibility.

The prosecutor's references to the witness's occupation as "a youth pastor" and "man of God" were improper. While this occupation was relevant background information, because it explained the context in which the witness had met the victim and eventually heard her claim of a sexual relationship with defendant, it had no legitimate bearing on the witness's credibility. See CRE 610 ("Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purposes of showing that by reason of their nature his credibility is impaired or enhanced."); People v. Mandez, 997 P.2d 1254, 1268 (Colo.App.1999) (holding it "plainly violate[d] CRE 610" where witness testified he understood importance of telling truth now that "Jesus Christ saved [his] life").

Reversal is not warranted because the trial court sustained objections to the improper arguments. While the court did not expressly sustain the third objection, defendant's specific request at that point was for it to re-read the general credibility instruction to the jury. (The court referred jurors back to the instruction but did not re-read it.) Further, this witness had no firsthand knowledge of the alleged crimes, and the case did not turn on his credibility. The prosecutor's arguments were improper, but we decline to reverse on that ground. Cf. Crider v. People, 186 P.3d 39, 42 (Colo.2008) ("we have expressly rejected any per se rule requiring reversal as a sanction or deterrent" for improper argument).

Defendant also challenges the prosecutor's argument that the victim's cutting herself was a "cry for help." The trial court did not abuse its discretion by overruling this objection, because this was an inference the prosecutor reasonably could ask the jury to draw from evidence in the record.

C. The Supplemental Jury Instruction

Defendant challenges a supplemental instruction—a modified Allen charge, see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Allen v. People, 660 P.2d 896, 898 (Colo.1983)—given by the trial court after jurors indicated they were deadlocked. The instruction contained four numbered paragraphs tracking those quoted in Colorado's Allen case. It told the jurors to continue to deliberate, "keeping the following suggestions in mind":

1. Jurors have a duty to consult with one another and to deliberate with a view to reaching a verdict if it can be done without violence to individual judgment;

2. Each juror must decide the case for him or herself, but only after impartial consideration with his or her fellow jurors;

3. In the course of deliberation, a juror should not hesitate to re-examine his or her own views and change his or her opinion if convinced it is erroneous;

4. No juror should surrender his or her honest conviction as to the weight and effect of the evidence solely because of the opinion of his or her fellow jurors or for the mere purpose of returning a verdict.

Defendant argues the instruction was coercive not because of what it said but because of what it failed to say expressly: that a mistrial would be declared if jurors could not reach unanimity. We hold this argument was not timely raised in the trial court and that the omission now challenged by defendant was not plain error.

1. Failure to Preserve the Challenge

Defendant first challenged the instruction in a new trial motion, which the trial court rejected on the merits; he argues this sufficed to preserve the challenge. Defendant contends that Colorado courts have not expressly decided this issue and points out that some cases limiting review to plain error note "the defendant failed to preserve [a challenge] by contemporaneous objection at trial or in his motion for a new trial." Ramirez v. People, 682 P.2d 1181, 1183 (Colo. 1984) (emphasis added); see also People v. Mason, 643 P.2d 745, 751 (Colo.1982) (similar). Those cases were decided when a new trial motion was a prerequisite to raising an issue on appeal, which no longer is true under Crim. P. 33(a).

We hold a challenge is unpreserved and thereby forfeited (subject only to plain error review) unless it is made in time for the trial court to avoid the alleged error. The rule on instructions provides that parties "shall make all objections [to proposed instructions] before they are given to the jury" and "[o]nly the grounds so specified shall be considered on motion for a new trial or on review." Crim. P. 30 (emphasis added). More generally, the rule abolishing formal exceptions deems it "sufficient that a party, at the time the court ruling or order is made or sought, makes known to the court the action which he desires the court to take or his objection to the court's action and the grounds therefor." Crim. P. 51 (emphasis added).

Colorado case law requires not only that objections be sufficiently "specific" but also that they be "timely." Thomas v. People, 820 P.2d 656, 659 (Colo.1991); People v. Jimenez, 217 P.3d 841, 867 (Colo.App. 2008). It does not suffice to give trial courts a post-hoc opportunity to consider an alleged error. Rather, a...