Yusem v. People

• Decision Date: 22 June 2009
• Docket Number: No. 08SC526.,08SC526.
• Citation: 210 P.3d 458
• Parties: Ryan YUSEM, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

210 P.3d 458

Ryan YUSEM, Petitioner v. The PEOPLE of the State of Colorado, Respondent.

No. 08SC526.

Supreme Court of Colorado, En Banc.

June 22, 2009.

Douglas K. Wilson, Colorado State Public Defender, Pamela A. Dayton, Deputy State Public Defender, Denver, CO, Attorneys for Petitioner.

John W. Suthers, Attorney General, Susan E. Friedman, Assistant Attorney General, Denver, CO, Attorneys for Respondent.

Justice RICE delivered the Opinion of the Court.

We granted certiorari¹ to review the decision of the court of appeals upholding the admission of prior act evidence. See People v. Yusem, No. 06CA930, 2008 WL 2058269 (Colo.App. May 15, 2008) (not selected for official publication). Ryan Yusem was convicted of felony menacing for pulling a gun against the driver of a van who Yusem thought was threatening to run him down. Yusem claimed he used the gun in self-defense. The trial court admitted evidence of a prior act where Yusem, a deputy sheriff, yelled at and caused an apartment manager to feel intimidated while Yusem was off-duty but wearing his service weapon. We hold that the trial court erroneously admitted the prior act evidence and that the error is not harmless. Accordingly, we reverse the court of appeals' decision, vacate Yusem's conviction, and remand to the trial court for a new trial.

I. Factual and Procedural History

Defendant, Ryan Yusem, appeals his conviction entered upon a jury verdict for felony menacing, a class five felony, arguing that the trial court erred in admitting prior act evidence under CRE 404(b). Because the admissibility of CRE 404(b) evidence is a fact-intensive question, it is necessary to outline the facts surrounding the charged offenses and the prior act, and also the trial court's instructions to the jury about the limited purposes for which the prior act evidence could be considered.

The charges arose from an incident that occurred near Yusem's apartment building on the evening of April 6, 2005, in Adams County. At the time, Yusem was a deputy with the Denver Sheriff's Department and was living with his wife, a Westminster police officer, and their children. Earlier that evening a concerned neighbor approached Yusem and his wife to tell them she believed a drug deal would be occurring later that night; she was upset because the possible drug deal involved her former brother-in-law. She believed the dealers would be driving a large black or white SUV. Yusem and his wife told the neighbor, as they had in the past, that they had no authority to intervene because they were not employed in that jurisdiction and that she should call 911. However, both Yusem and his wife decided that if they saw anything suspicious they would either call the police or write down the license plate number of the vehicle.

At approximately 9:00 p.m., Yusem was standing on the balcony of his third-floor apartment when he saw a large white SUV with blacked-out windows pull into the parking lot. The SUV made a number of turns in the parking lot, occasionally stopping in what Yusem felt was his direct line of sight. Yusem believed the occupant of the SUV was stalking him, which made him nervous. Finally, the SUV left the parking lot. Yusem then realized that he needed to walk his three dogs. Because the neighbor told him the drug dealers might be armed and because he was scared by the actions of the driver of the white SUV, he put on his bullet proof vest. Yusem testified that he always wore his service weapon, even while off duty, so his gun was already in its holster on his hip.

The testimony about what happened next is disputed. Yusem testified that as soon as he left the apartment with the dogs, the white SUV returned. The SUV continued to make unusual turns and stops. Feeling more nervous, Yusem quickly took his dogs through an alley to an open space near the fire lane-a concrete road that ran the length of the backside of the apartment complex. When Yusem reached the fire lane, which he described as poorly lit, he noticed a minivan at the far end with a person leaning into the passenger window conversing with the occupant. Yusem thought it was unusual for the van to be parked in the fire lane — a secluded area behind the complex — and so thought he might be witnessing a drug deal. While watching his dogs run, Yusem heard an engine whine and looked up to see the minivan coming right at him, traveling at what he thought was a high rate of speed. Yusem jumped out of the way, threw his left hand up, drew his weapon, and starting yelling for the vehicle to stop and back up. Yusem testified that he announced that he was a Denver Sheriff and held the gun in the "ready position" — aimed downward toward where the van met the pavement. The van stopped approximately five feet away, Yusem heard a male voice and then a female voice, and the van eventually backed down the fire lane and drove away. Concluding the danger had passed, Yusem re-holstered his gun and used his cell phone to call the non-emergency line for the police.

On the other hand, Mr. Longsine, the victim of the charged offenses and a maintenance technician for the complex, testified that he was stopped in his maroon minivan at the far end of the fire lane; his wife and young child were in the van with him. After speaking with a fellow maintenance technician out of the passenger-side window for a few minutes, Mr. Longsine said he took his foot off the brake and began to roll forward at about five miles per hour. He testified that Yusem was 90 feet away when he began rolling forward. When he was approximately 30 feet² from Yusem, Mr. Longsine stopped the van because Yusem had "downed"³ one of his dogs in the middle of the fire lane. At that point, Yusem approached the van, drew his gun, pointed it toward Mr. Longsine, and yelled at Mr. Longsine to "back the fuck up." Mr. Longsine complied and backed down the fire lane. He then drove to the apartment manager's office to call the police.

Yusem was charged with felony menacing⁴ and prohibited use of a weapon.⁵ Before trial, the prosecution moved to introduce evidence of a prior act under CRE 404(b). Yusem objected to the admission of this evidence. The prior incident involved the apartment manager, Karen Eckhardt. She testified that approximately eight months before the incident with Mr. Longsine, Yusem came to talk to her about getting a new apartment because there was water damage in his current apartment. He was wearing plain clothes, had a gun in its holster on his hip, and was very angry. Ms. Eckhardt testified that Yusem yelled at her about the condition of his apartment, but never touched, talked about, or otherwise referred to his gun. Nonetheless, Ms. Eckhardt felt intimidated by the presence of the gun.

Two judges presided during Yusem's case. The first trial judge ruled on the pre-trial matters, including the CRE 404(b) motion, and a second trial judge presided over the trial. After a pre-trial hearing, the first trial judge admitted the CRE 404(b) evidence for the purposes requested by the prosecutor. The second trial judge modified the initial ruling on the CRE 404(b) evidence, identifying a narrower list of purposes for which the evidence could be used.⁶ The following instruction was read to the jury before Ms. Eckhardt's testimony and was also provided in the jury instructions:

Certain evidence may be admitted for a particular purpose only, and for no other. The testimony you are about to hear from witness Karen Eckhardt with regard to a prior encounter with the defendant is such evidence. It may be used as evidence for one or more of the following purposes: (1) to establish the defendant's state of mind, motive, or knowledge on April 6, 2005; (2) to establish that the defendant acted in the absence of mistake or accident on April 6, 2005; and (3) to establish that the defendant did not act in self-defense on April 6, 2005; and you should consider it as evidence for no other purpose.

In rebuttal closing argument, the prosecutor explained to the jury how they were to consider the evidence of the prior encounter with the apartment manager. The prosecutor argued that during the prior act "[Yusem's] weapon was used to intimidate and [his] weapon was used to control exactly as it was on April 6, 2005."

The jury found Yusem guilty of felony menacing, but found him not guilty of prohibited use of a weapon. Yusem appealed.

The majority for the court of appeals found the prior act evidence admissible, but for slightly different reasons than the trial court. Yusem, No. 06CA930, slip op. at 6. Applying the four-part Spoto⁷ test, the court of appeals held, first, that Yusem's mental states, both for the charged offense (knowingly) and his claim of self-defense (reasonable belief), were material facts. Second, the evidence was logically relevant to his mental state in pulling the gun out of its holster. Third, the fact that Yusem had displayed his gun in an angry confrontation with the apartment manager was probative — independent of the inference of bad character — of why Yusem pulled his gun from its holster and to whether his beliefs about use of force were reasonable. Finally, the majority reasoned that because the prior act was useful to the jury in determining whether the degree of force Yusem used was reasonably necessary, its probative value was not outweighed by unfair prejudice. Accordingly, the court of appeals affirmed the conviction.

The dissenting judge concluded the trial court abused its discretion by admitting the prior act evidence and also concluded that the error was not harmless. Yusem, No. 06CA930, slip op. at 11 (Dailey, J., dissenting). The dissenting judge reasoned that the prior act evidence did not satisfy the third and fourth prongs of the Spoto test. The evidence was relevant to show only one thing: that because Yusem bullied someone on a prior occasion, he most likely bullied the victim on April 6th too. Such use of the evidence amounted to...