People v. Serra
| Decision Date | 24 September 2015 |
| Docket Number | Court of Appeals No. 12CA0492 |
| Citation | 361 P.3d 1122,2015 COA 130 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Myrl SERRA, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Douglas K. Wilson, Colorado State Public Defender, Karen N. Taylor, Chief Appellate Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.
¶ 1 Defendant, Myrl Serra, appeals the judgment of conviction entered on jury verdicts finding him guilty of violation of bail bond conditions (a felony), violation of a protection order, and harassment (both misdemeanors).
¶ 2 He contends that his convictions must be vacated or reversed because: (1) the evidence is insufficient to support the convictions; (2) the court erred in defining for the jury the term “contact,” an element of violation of bail bond conditions and violation of a protection order; (3) the trial court erred in allowing the prosecution to introduce evidence of the victim's character for truthfulness; (4) the court erred in allowing the prosecution to introduce evidence of Serra's character; and (5) the prosecutor committed prosecutorial misconduct in closing argument.
¶ 3 We vacate Serra's harassment conviction for insufficient evidence. We conclude that there is sufficient evidence to support his convictions for violation of bail bond conditions and violation of a protection order, but we reverse the convictions and remand for a new trial on those charges because of instructional error.
¶ 4 Serra was the elected district attorney for the Seventh Judicial District when he was arrested and charged with unlawful sexual contact and extortion. The victim in this case, who had worked for Serra at the district attorney's office for several years before his arrest, was also a named victim in the sexual contact case.
¶ 5 Serra was released on a bail bond pending trial. A condition of the bond was that he have “no contact with: [the victim].” A mandatory protection order issued by operation of section 18–11001, C.R.S. 2015, ordered Serra not to “harass, molest, intimidate[ ], retaliate against, or tamper with” the victim and to “refrain from contacting or directly or indirectly communicating with” her.
¶ 6 Several months before the date of the preliminary hearing in the unlawful sexual contact case, Serra encountered the victim at a department store in Montrose. That encounter formed the basis for the charges in this case, which were tried separately from those in the original case. Serra's and the victim's accounts of the encounter differed significantly.
¶ 7 The victim testified at trial that although she did not commonly shop at that particular store, she went there that day because she had a gift certificate. She testified that when she and her three sons were about to exit the store, she saw Serra and his son in the parking lot walking toward the store. According to the victim, in an attempt to avoid Serra, she walked to the men's department because that was the only location in the store she could get to without passing in front of the doors to the store.
¶ 8 The victim testified that she “hunched down” next to a freestanding clothes rack, which was about four-and-a-half to five feet tall. When she saw Serra enter the store about five to ten seconds later, he headed “in the exact direction where [she] was standing with [her] boys.” She testified that she was not sure Serra saw her when he first walked into the store, but she suggested that he saw her when he was walking in her direction in the store.
¶ 9 The victim told her sons to go to another part of the store. She testified that because she was watching her sons walk away, she briefly lost sight of Serra. When she next saw him, he was standing at the same clothes rack about three to four feet away from her and one foot above her (she was still hunched over). She testified that Serra was “kind of moving” the hangers on the rack but not looking at them. Rather, according to the victim, he was staring at her.
¶ 10 The victim testified that Serra stared at her for about ten to fifteen seconds and “smirked” at her before walking away. The victim then left the men's department, met her sons near the front doors, and exited the store. She testified that Serra was still in the store when she left.
¶ 11 On cross-examination, the victim admitted that she had initially told the police that she did not know if Serra had seen her. On redirect examination, she clarified that she meant she was not sure whether Serra had seen her when he walked into the store and first started heading in her direction, but he did see her at some point while he was walking toward her.
¶ 12 Serra testified that he had received a twenty percent off coupon to the store, valid only for that day, because he was a regular customer. He testified that when he drove into the store's parking lot, he did not see any vehicles he recognized, and he had no reason to believe that the victim was there.
¶ 13 Serra testified that he did not see the victim when he walked into the store with his son; he walked to the men's department because they always started their shopping in that section. He testified that he walked past a rack and noticed several shirts on it were shaking. When he stopped walking and turned to look at the rack, he saw a woman bent over, facing away from him. He testified that he did not immediately recognize her, but that from her hair and general body shape, he knew it was either the victim or his ex-girlfriend. According to Serra, he immediately turned around and walked to another section of the store.
¶ 14 Serra denied that he walked over to the rack, pretended to look through it, or grabbed, rattled, or touched any of the hangers. He also denied that he stared or smirked at the victim. Both Serra and the victim testified that neither one of them spoke.
¶ 15 The only other person who testified to witnessing some of the incident was the victim's oldest son, who was eleven at the time. He testified that after he and his brothers walked away from the victim, he looked back and saw Serra at the same clothes rack where the victim was standing. He testified that he saw Serra looking in the victim's direction for about ten to fifteen seconds. On cross-examination, he admitted that he had told the police that he did not remember how long Serra was looking in the victim's direction. During her cross-examination, the victim testified that before her son was interviewed by the police, he had told her that he did not really remember what had happened at the store.
¶ 16 The jury convicted Serra of violation of bail bond conditions under section 18–8–212, C.R.S. 2015; violation of a protection order under section 18–6–803.5, C.R.S. 2015; and harassment (following in or about a public place) under section 18–9–111(1)(c), C.R.S. 2015. The trial court sentenced Serra to imprisonment for one year for violation of bond conditions and imposed concurrent sentences of twelve months and six months for violation of a protection order and harassment, respectively. The court ordered the sentence in this case to be served consecutively to the sentence in Serra's other case.
¶ 17 Serra argues that the evidence is insufficient to support his convictions. We address this argument first because if there is insufficient evidence, he could not be retried and all other issues would be moot. Although it is a very close question, we conclude that the evidence supports his convictions for violation of bond conditions and violation of a protection order. We agree with Serra that the evidence is insufficient to support his conviction for harassment.
¶ 18 “The due process clauses of the United States and Colorado Constitutions prohibit the criminal conviction of any person except on proof of guilt beyond a reasonable doubt.” Kogan v. People,756 P.2d 945, 950 (Colo. 1988), abrogated on other grounds byErickson v. People,951 P.2d 919 (Colo. 1998). A reviewing court faced with a sufficiency challenge must determine whether the evidence, when viewed as a whole and in a light most favorable to the prosecution, is both substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty of the charge beyond a reasonable doubt.Dempsey v. People,117 P.3d 800, 807 (Colo. 2005); People v. Noland,739 P.2d 906, 907 (Colo. App. 1987). We review the record de novo to determine whether the evidence is sufficient both in quantity and quality to sustain the defendant's conviction. Clark v. People,232 P.3d 1287, 1291 (Colo. 2010).
¶ 19 In determining whether the evidence is sufficient to sustain a conviction, we “must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence.” People v. Duncan,109 P.3d 1044, 1045–46 (Colo. App. 2004). Moreover, “the resolution of inconsistent testimony and determination of the credibility of the witnesses are solely within the province of the jury.” Id.
¶ 20 Serra argues that evidence that he happened upon the victim, stared at her for ten to fifteen seconds, made a facial expression, and walked away is insufficient to establish beyond a reasonable doubt that he violated bond conditions and the protection order. We disagree. Viewing the evidence in the light most favorable to the prosecution, as we must, the evidence is sufficient to sustain the convictions.1
¶ 21 “A person who is released on bail bond ... and ... is accused ... of any felony arising from the conduct for which he was arrested” commits the crime of violation of bail bond conditions if “he knowingly violates the conditions of the bail bond.” § 18–8212(1).
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