People v. Underwood, 00CA1367.

• Decision Date: 14 March 2002
• Docket Number: No. 00CA1367.,00CA1367.
• Citation: 53 P.3d 765
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hubert UNDERWOOD, Defendant-Appellant.
• Court: Colorado Court of Appeals

53 P.3d 765

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hubert UNDERWOOD, Defendant-Appellant.

No. 00CA1367.

Colorado Court of Appeals, Div. I.

March 14, 2002.

Certiorari Denied September 9, 2002.¹

Ken Salazar, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Forrest W. Lewis, P.C., Forrest W. Lewis, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Hubert Underwood, appeals the judgment of conviction entered on a jury verdict finding him guilty of aggravated incest and sexual assault on a child by one in a position of trust. We affirm.

At trial, the prosecution presented evidence that one morning, while defendant's sixteen-year-old daughter (the victim) was sleeping, defendant entered her room and "laid down beside" her. He asked if she wanted a back massage, and although she said no, he proceeded to rub her back. He then moved his hands near her breasts, removed her pants, and forced her to have sexual intercourse with him.

I. Exclusion of Evidence

Defendant first contends the trial court abused its discretion by precluding cross-examination of the victim about a miscarriage she had had after the offense occurred, but before she had reported it to police. The trial court disallowed such evidence under CRE 403, reasoning that it might make the victim appear promiscuous and was unfairly prejudicial to the prosecution. We perceive no abuse of discretion.

Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." CRE 403.

The trial court's decision to exclude evidence under this rule will not be overturned absent an abuse of discretion and prejudice to the defendant. People v. Gibbens, 905 P.2d 604 (Colo.1995). An abuse of discretion in this context does not occur unless the trial court's ruling was manifestly arbitrary, unreasonable, or unfair. See People v. Dunlap, 975 P.2d 723 (Colo.1999)

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Here, there was evidence that after the charged incident, the victim's grades at school dropped markedly, and she began cutting her arms and pulling her hair. The prosecution's theory was that defendant's actions had caused this erratic behavior.

Defense counsel cross-examined the victim regarding several other traumatic events in her life to establish there were reasons, apart from the charged incident, for her erratic behavior. The defense elicited evidence from the victim that: (1) she had been pregnant and had had an abortion; (2) she had had an operation to remove a kidney; (3) she had been fighting with her mother; and (4) she had broken up with three boyfriends.

Because these events, individually and collectively, made defendant's point clear, we conclude the trial court's ruling disallowing evidence of the victim's miscarriage did not violate CRE 403. There is no indication the court's ruling hampered the presentation of defendant's theory or prejudiced him, and the court had well-founded concerns that evidence of the victim's miscarriage may have made her appear promiscuous and would have been unduly prejudicial by diverting the jury's attention from the real issues in the case.

We therefore conclude the trial court did not abuse its discretion in determining the probative value of the miscarriage evidence was substantially outweighed by the danger of unfair prejudice to the prosecution, and in disallowing this evidence. See People v. Delgado, 890 P.2d 141 (Colo.App.1994)

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II. Child Hearsay

Defendant next contends the trial court abused its discretion in allowing the victim's mother and a mental health expert to testify about statements made by the victim. We disagree.

As relevant here, § 13-25-129(1)(a) and (b)(I), C.R.S.2001, allows for the admission of child hearsay statements in sexual offense cases if "[t]he court finds ... that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and [t]he child ... [t]estifies at the proceedings."

The following factors offer the trial court guidance in determining the admissibility of child hearsay statements:

(1) Whether the statement was made spontaneously;

(2) whether the statement was made while the child was still upset or in pain from the alleged abuse;

(3) whether the language of the statement was likely to have been used by a child the age of the declarant;

(4) whether the allegation was made in response to a leading question;

(5) whether either the child or the hearsay witness had any bias against the defendant or any motive for lying;

(6) whether any other event occurred between the time of the abuse and the time of the statement which could account for the contents of the statement;

(7) whether more than one person heard the statement; and

(8) the general character of the child.

People v. District Court, 776 P.2d 1083, 1089-90 (Colo.1989).

The trial court's decision to admit child hearsay statements will not be overturned absent an abuse of discretion. People v. Hansen, 920 P.2d 831 (Colo.App.1995).

According to the evidence presented at trial, the victim and her mother began arguing while driving back from a doctor's appointment. The mother asked the victim what was causing her erratic behavior, and the victim reported that defendant had touched her intimately. The mother immediately drove to the emergency room of a nearby hospital where the victim told a therapist that defendant had forced her to have sexual intercourse with him.

At trial, both the mother and the therapist were called to testify about the victim's statements. The trial found the victim's statement to her mother was reliable and was an "outcry" made by the victim while explaining "her depression and behavior and mood swings."

We conclude the trial court did not abuse its discretion in admitting this testimony. While the victim's statement to her mother was made in response to questioning, the mother's questions were not leading. The charged incident occurred approximately a year before the victim made this statement, and other stressful events had intervened. However, there was evidence the victim was still very upset over the incident with defendant, and no evidence suggested she had a motive to accuse him falsely.

Defendant's sole objection to the testimony of the therapist was that the victim's statement to her mother "tainted" her later statement to the therapist. But, because we conclude the trial court did not abuse its discretion in admitting the victim's statement to her mother, we reject this related contention.

III. Similar Transaction Evidence

Defendant next contends the trial court erred in admitting testimony of other acts committed by him as similar transaction evidence. He maintains that such evidence did not satisfy § 16-10-301, C.R.S.2001, or CRE 404(b), and that the court's failure to give a contemporaneous limiting instruction as to certain testimony was plain error requiring reversal. We are not persuaded.

A. Standard for Admitting Other Acts Evidence

Section 16-10-301 and CRE 404(b) govern the admission of similar transaction evidence in sexual offense cases. People v. Martinez, 36 P.3d 154 (Colo.App.2001).

The legislative declaration of § 16-10-301 states "that such evidence of other sexual acts is typically relevant and highly probative, and it is expected that normally the probative value of such evidence will outweigh any danger of unfair prejudice, even when incidents are remote from one another in time." Section 16-10-301(1), C.R.S.2001.

Section 16-10-301(3) provides in relevant part:

The prosecution may introduce evidence of other acts of the defendant to prove the commission of the offense as charged for any purpose other than propensity, including: Refuting defenses, such as ... recent fabrication; showing a common plan, scheme, design, or modus operandi, regardless of whether identity is at issue and regardless of whether the charged offense has a close nexus as part of a unified transaction to the other act; [or] showing motive, opportunity, [or] intent....

Section 16-10-301(4) provides the procedures that apply when the prosecution introduces such evidence:

(a) The prosecution shall advise the trial court and the defendant in advance of trial of the other act or acts and the purpose or purposes for which the evidence is offered.

(b) The trial court shall determine by a preponderance of the evidence whether the other act occurred and whether the purpose is proper under the broad inclusionary expectations of this section.

(c) The evidence of other acts may not be admitted until the trial court finds that the prosecution has by evidence or offer of proof established a prima facie case for the charged offense.

(d) The trial court shall, at the time of the reception into evidence of other acts and again in the general charge to the jury, direct the jury as to the limited purpose or purposes for which the evidence is admitted and for which the jury may consider it.

In order to introduce evidence of other sexual acts committed by the defendant, the prosecution also must satisfy CRE 404(b) and the four-part test established in People v. Spoto, 795 P.2d 1314 (Colo.1990). See People v. Martinez, supra. CRE 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The Spoto test requires that: (1) the proffered evidence relate to a material fact; (2) the evidence be logically relevant; (3) the logical relevance be independent of the intermediate inference, prohibited by CRE 404(b), that the defendant has...