People v. Serra
361 P.3d 1122
Colo. Ct. App.2015Background
- Myrl Serra, former elected district attorney, was released on bond with a condition of "no contact" with a former employee who was a victim in a separate alleged unlawful sexual contact case; a mandatory protection order imposed similar no-contact restrictions.
- Serra and the victim encountered each other in a Montrose department store; the victim testified Serra approached to within 3–4 feet, stared at her for 10–15 seconds, and smirked; Serra denied touching, speaking, or intentionally communicating with her.
- A jury convicted Serra of felony violation of bail bond conditions, misdemeanor violation of a protection order, and misdemeanor harassment (following in a public place).
- The trial court sentenced Serra to concurrent jail terms and ordered the sentence to run consecutively to his sentence in the underlying sexual-contact case.
- On appeal Serra argued (inter alia) insufficiency of the evidence, incorrect jury instruction defining "contact," erroneous admission of character evidence (victim and Serra), and prosecutorial misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency — violation of bond conditions & protection order | Evidence that Serra came close, stared, and smirked constituted "contact" and supports convictions | Encounter was accidental/innocent; stare and smirk insufficient to prove contact beyond a reasonable doubt | Court: Evidence minimally sufficient to support convictions for bond/protection violations (but close call) |
| Sufficiency — harassment (following) | Presence in same store and ending up where victim was permits inference of following | No proof he intentionally followed her or intended to harass, annoy, or alarm | Court: Insufficient evidence as to "followed" and intent; harassment conviction vacated and acquittal directed |
| Jury instruction — definition of "contact" | Prosecution proposed a broad instruction (close physical proximity; need not communicate or touch) | Serra argued no definition necessary; if given it must match ordinary meaning (communication or touching) | Court: Trial court abused discretion by instructing only that "contact includes a variety of conduct" — instruction too broad; reversal of bond/protection convictions and remand for new trial |
| Admissibility — victim's character for truthfulness (CRE 608) | State relied on coworkers' opinion testimony to bolster victim after cross-examination impeached credibility | Defense: cross-exam did not attack victim's general character for truthfulness; such rehabilitation was improper | Court: Cross-examination did not constitute an attack on general truthfulness; opinion/reputation evidence for truthfulness was inadmissible and should be excluded on remand unless defendant first attacks character |
| Admissibility — Serra's "smirk" other-acts evidence (CRE 404(b)) | State relied on past smirks to show that smirk was communicative (relevant to contact) | Defense: prior-smirk testimony impugns character and is other-acts evidence needing 404(b) analysis | Court: Prior-smirk testimony was other-acts evidence; admissibility on retrial must satisfy Spoto 404(b) analysis and CRE 403 balancing |
| Prosecutorial misconduct — closing argument | Prosecutor urged inferences (intimidation, tampering) and used inflammatory language ("lie," "BS," denigrated defense) | State claimed reasonable argument and inferences | Court: Several prosecutor statements improper or close to speculation; prosecutor must avoid terms like "lie," "BS," and denigrating remarks on retrial; court should police speculative or inflammatory argument |
Key Cases Cited
- Kogan v. People, 756 P.2d 945 (Colo. 1988) (due-process sufficiency standard; credibility for jury)
- People v. Devorss, 277 P.3d 829 (Colo. App. 2011) (prior Colorado discussion of "contact" in probation context)
- Elliott v. Commonwealth, 675 S.E.2d 178 (Va. 2009) ("contact" requires piercing protective barrier; mere visibility insufficient)
- Cooper v. Cooper, 144 P.3d 451 (Alaska 2006) ("contact" involves direct or indirect communication; not merely coming within view)
- People v. Spoto, 795 P.2d 1314 (Colo. 1990) (four-part 404(b) analysis for other-acts evidence)
- Wend v. People, 235 P.3d 1089 (Colo. 2010) (prosecutor may not express opinion on witness truthfulness; certain language impermissible)
- People v. Quintana, 882 P.2d 1366 (Colo. 1994) (other-acts evidence may be relevant but governed by 404(b))