People v. Yachik

• Decision Date: 25 June 2020
• Docket Number: Court of Appeals No. 17CA0444
• Citation: 469 P.3d 582
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeremy Neal YACHIK, Defendant-Appellant.
• Court: Colorado Court of Appeals

469 P.3d 582

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Jeremy Neal YACHIK, Defendant-Appellant.

Court of Appeals No. 17CA0444

Colorado Court of Appeals, Division II.

Announced June 25, 2020

Philip J. Weiser, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE ROMÁN

¶ 1 Defendant, Jeremy Neal Yachik, appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse against his biological daughter, S.Y. See § 18-3-405.3(1), (2), C.R.S. 2019. Specifically, he contends that the trial court erred by erroneously admitting evidence that he subjected S.Y. to physical abuse. This evidence was proffered by the prosecution — and accepted by the trial court — as res gestae of the family dynamics and background against which the charged crimes occurred. Additionally, defendant contends that the court erroneously admitted unreliable and irrelevant expert testimony about "negative grooming," without making specific findings regarding its admissibility. How the prosecution used the physical abuse evidence and the expert testimony about grooming in its case-in-chief and closing argument form the basis of defendant's third contention: prosecutorial misconduct. In particular, defendant challenges the prosecution's multiple comments made during closing argument that defendant "groomed the jury" throughout the trial.

¶ 2 For the reasons that follow, we conclude that defendant's convictions must be reversed and the case remanded for a new trial.

I. Background

¶ 3 According to the People's evidence, the first charged sexual assault happened around August 2010 after defendant came home from the hospital, where his son was being treated for a severe illness. S.Y., who was in the eighth grade, had stayed home from school that day. Defendant told S.Y. he heard a radio show about daughters who wanted to date their fathers before asking her to lie down on his bed and pull down her pants. He then inserted a vibrator into her vagina. She removed it and put her pants back on. Defendant got on top of her and threatened to rape her if she told anyone what happened. Then he took a nap.

¶ 4 The second charged incident occurred in 2011 or 2012, when S.Y. was in ninth grade. She was cleaning dishes at the kitchen sink when defendant came up behind her and put one hand on her breasts and another hand near her vagina. S.Y. was fully clothed at the time. Defendant stopped when she told him she thought someone was coming downstairs.

¶ 5 S.Y. told defendant's ex-girlfriend about these incidents around August 2014. S.Y. was living with the ex-girlfriend, who was involved in an ongoing custody dispute with defendant over their son.

¶ 6 The People charged defendant with two counts of sexual assault on a child. At trial, the People introduced extensive and graphic evidence of the physical abuse defendant perpetrated against S.Y. and asserted that he groomed her and the jury to get away with his wrongdoing. They painted a picture of a controlling defendant and a fearful victim.

¶ 7 The jury found defendant guilty as charged. He received consecutive sentences of sixteen years to life on each charge.

II. Res Gestae Evidence

¶ 8 Defendant contends that the trial court erroneously admitted evidence that he repeatedly subjected S.Y. to "horrific acts of child abuse" as res gestae for the charged sexual assaults. He specifically asserts that this evidence was not only irrelevant and highly prejudicial, but it encouraged the jury to convict him of the charged sexual assault crimes based on prior misconduct and "perceived bad character."

¶ 9 The People respond that the trial court properly admitted this evidence as res gestae because it helped the jury understand (1) the control defendant exercised over S.Y.; (2) why she lied to protect him; and (3) why she delayed reporting despite frequent contact with law enforcement and human services.

¶ 10 Because we agree this was improperly admitted as res gestae evidence, we reverse and remand.

A. Relevant Facts

¶ 11 In 2013, defendant's ex-girlfriend sent a video to law enforcement showing defendant hitting and kicking S.Y. for taking carrots from the refrigerator without permission (the carrot video). The carrot video prompted an investigation that resulted in defendant being charged with, and pleading guilty to, misdemeanor child abuse.

¶ 12 In 2016, the prosecution in the sexual assault case filed a pretrial motion seeking to admit as res gestae the carrot video and other physical abuse evidence collected during the 2013 child abuse investigation. According to the prosecution, the physical abuse evidence was "part and parcel of th[e] evolving [sexual assault] criminal episode." The sexual abuse allegations and the physical abuse "involve[d] the same period of time" and "[a]ny observations of the defendant's behavior towards [the victim] during and near that time period [were] crucial to give context and explain the entire criminal episode."

¶ 13 Defense counsel objected because "the child abuse allegations [were] not integral to the charges," were "not relevant," and "the minimal probative value [was] vastly outweighed by their prejudicial impact." Instead, the prosecution was seeking to "convict Defendant of the current charges based upon his perceived bad character and alleged prior bad acts." Defense counsel pointed out that the child abuse involved "physical punishment or deprivations for bad behavior," not punishments to procure sex. And, in the sexual assault case filings, there were no similar allegations that defendant sexually assaulted S.Y. because she behaved badly or as a form of punishment. Moreover, according to defendant, the "story" of the sexual assaults could be understood without any reference to the physical abuse. Therefore, defense counsel contended that the evidence should not be admitted under res gestae, CRE 403, or any other theory.

¶ 14 The district court admitted the evidence as res gestae. In a written order, it ruled that

[t]he family dynamics and interactions between the Defendant and alleged victim are relevant to give context to the jury. They are relatively contemporaneous in time and involve the same actors. That said, it is not proper for the People to introduce any evidence regarding charges or convictions that arose out of L13M1456 [the child abuse case]. Whether the Defendant wishes to do so is his decision. The Court notes that in the Defendant's Motion for Specific Discovery, he asserts that L13M1456 contains exculpatory information related to the charged offenses. It is inconsistent to now assert that the two cases are not relevant to one another.

The court did not address Rule 403 in its written ruling.

¶ 15 At trial, S.Y. testified extensively about the physical abuse that defendant perpetrated against her "almost daily" during the years that she lived with him. At the prosecutor's prompting, she detailed for the jury how defendant would force her to eat hot sauce concoctions, zip tie her hands behind her back and lock her in a dark room for hours, kick her, beat her, choke her, spray her eyes with police department grade pepper spray, deprive her of food, and force her to endure extreme exercise without rest. She also described the scars she still had from those experiences and the stomach problems that still caused her pain.

¶ 16 Defendant's ex-girlfriend also testified that defendant physically abused S.Y. "[a]lmost on a daily basis." While she described many of the same incidents of abuse that S.Y. had, she also described how S.Y. was forced to sleep outside and was hit with "a spatula, wooden spoons, [and a] belt." She even testified that the "abuse was getting so severe that [she] was afraid [defendant] was going to kill [S.Y.]."

¶ 17 At the close of evidence, the parties discussed a limiting instruction on the res gestae. Although such an instruction was not required, the court was "convinced in this case it is appropriate ... because we've heard so much about the child abuse." So the court gave the following instruction:

The Defendant is not charged with child abuse in this case. The evidence you heard related to the allegations of physical abuse of [S.Y.] has been admitted for the limited purpose of providing the jury with a full and complete understanding of the events surrounding the charged crimes and the context in which the charged crimes occurred.

¶ 18 In closing argument, the prosecutor reminded the jury of the physical abuse evidence:

And I know the defense, they will say, think about how crazy it is that a guy would come home from dropping his kid off at the hospital and commit this and take a nap. But keep in mind, you are not thinking and analyzing his actions from a rational person such as yourself. You've got to think about this from the perspective of someone who wants to commit that sexual assault on a child and would do the behaviors that you saw on that [carrot] video and do the behaviors that are described. You can't look at that in a, well, I wouldn't do that, because you wouldn't do the rest of it.

¶ 19 The prosecutor implored the jury to watch the carrot video during its deliberations and asked it to "[l]ook at that evidence, think about what this girl went through, think about what she told you and described," and find defendant guilty.

B. Standard of Review and Applicable Law

¶ 20 "We review the admission of evidence for an abuse of discretion." People v. Trujillo , 2014 COA 72, ¶ 60, 338 P.3d 1039. A court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair. Id.

¶ 21 "All relevant evidence is admissible unless otherwise provided by constitution, statute, or rule." Yusem v. People , 210 P.3d 458, 463 (Colo. 20...