Colo. Ct. App. 2/4/10

No. 07CA2368. People v. Everett.Sexual Assault—Other Evidence—Consent Defense—Doctrine of Chances—Modus Operandi—C.R.E. 403—Limiting Instruction—Sentence—Crime of Violence.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of sexual assault and the sentence imposed. The judgment of conviction was affirmed, the sentence was vacated, and the case was remanded for re-sentencing.

During defendant’s trial, both the sexual assault victim in this case and a victim who was sexually assaulted by defendant in Pennsylvania testified to refute defendant’s claim of consent. The jury convicted defendant of sexual assault, a class 3 felony.

On appeal, defendant contended that the trial court erred by admitting evidence of the Pennsylvania sexual assault. The Court of Appeals disagreed, citing the following reasons: (1) the evidence directly related to a material fact (whether defendant used force or threats) and was logically relevant to defendant’s consent defense; (2) the use of the doctrine of chances created reasoning that was independent of the intermediate inference of defendant’s bad character; (3) defendant used a similar modus operandi in the two incidents; and (4) the record established that the additional probative value of the evidence of the Pennsylvania sexual assault was not substantially outweighed by the danger of unfair prejudice under C.R.E. 403.

Defendant also contended that the trial court erred because it did not provide an appropriate limiting instruction concerning the proper uses of the evidence of the Pennsylvania sexual assault in the final jury instructions. The Court agreed, but held that the omission was not substantial because the jury was given a proper initial limiting instruction when the evidence of the Pennsylvania sexual assault was first admitted, and the final limiting instruction referred to this initial instruction.

Defendant asserted that the prosecution violated his right to a fair trial by eliciting evidence that he had been incarcerated. An inmate testified about defendant’s confessions to him while they were both incarcerated. The reference to the inmate’s incarceration was fleeting and ambiguous and the question was never answered. The trial court promptly responded by sustaining defense counsel’s objection and instructing the jury to disregard the question. Further, there was sufficient other evidence of defendant’s guilt. Therefore, the court did not err in refusing to grant a mistrial.

Defendant also argued that the trial court erred by sentencing him for committing a crime of violence. Because the jury convicted defendant of the class 3 felony of sexual assault in violation of CRS § 18-3-402(1) and (4)(a), which do not establish per se crimes of violence, and the prosecution did not allege a crime of violence in a separate count, the trial court did err. The case was remanded to sentence defendant for a class 3 felony sexual assault that is not a crime of violence.

Defendant also argued that the trial court violated his constitutional privilege against self-incrimination when, during sentencing, it considered his lack of remorse as an aggravating factor. On remand, the trial court may not use defendant’s silence during his trial or the sentencing proceedings to enhance his sentence.