*1 rejection provisions If these tients, prison of offender. meaning people who are satisfied, sentencing offense, not been court higher than have of scored for this kind community pro- may corrections order psychopathology on the Mr. Benz does provide "the gram or board to to the court ... scale community are the basis" of the facts which although that analysis here is The final administrator's "cause to believe" corrections treatment, in that he has he is amenable has violated a rule or condi- that an offender the evaluators a weak form of denial community placement corrections tion of through, posed that he broken felt could be safely may longer be housed there. or no guidelines high-in most a moderate to 17-27-104(6). Meanwhile, § the offender re- high range of risk-to the com- within the juris- county jail subject in the mains although is that munity, and the conclusion sentencing id. diction of the court. See treatment, willing engage Mr. Benz is appropriate candi- that he not be his Benz received actual notice of community-based outpatient treat- date for rejection rejection and of the reasons for his significance of his ment because of Furthermore, community from corrections. ... problems court, as the record demonstrates that we I feel under the circumstances referring agency, conducted an informal community-based treatment. have tried rejection community of Benz's from review have tried to have tried treatment-we We find no error. corrections. We having him go process forward with the of there is a treat- evaluated and see whether TIL community him in ment Accordingly, judgment affirm the high him at level willing to work with appeals. court of needs, come to a dead end. that he that has Therefore, is the real issue containment engage in treatment
here. If he wished to prison, him I would [in] that is available to ... It will be the decision glad of that. years him to 12 of the court to sentence Department of Corrections. Thus, sentencing conducted the court Colorado, The PEOPLE of the State process that the statute con informal review Plaintiff-Appellee, referring agency pur templates for it as the 17-27-103(7).3 suant to section FROST, Defendant-Appellant. Joseph C. contemplates that the sentenc- statute court, referring agency, should ing as the No. 96CA0013. that written or actual notice of assure itself Appeals, Colorado Court rejection rejection and reasons for the Div. I. given to the offender to resen- were tencing, perform an informal re- and should Sept. 1999. rejection if underlying the it view of the facts Rehearing 1999.* Denied Oct. appears that no such review has been done community pro- or by the corrections board 19, 2000.** Granted June Certiorari 17-27-103(7) and 17- gram. sections Under 27-104(6), communi- the administrator notify
ty program corrections or board must underlying referring agency the facts ** partici- COATS do not presented RICE and Justice not here with a case in which Justice 3. We are pate. corrections nor the sentenc- neither community statutory ing conducted the administrative review process. * Metzger, J., would GRANT.
319
I.
Defendant contends that he was denied a fair trial testimony the admission of re- garding sexual assault for which he Norton, Attorney General, A. Gale Martha previously agree. had been convicted. We Phillips Allbright, Deputy Attorney Chief General, Westfall, A. Richard Solicitor Gen- Although previously it had not filed a mo- eral, III, Attorney J. Fuerst John Assistant issue, trial, day tion on the on the first General, Denver, Colorado, Plaintiff-Ap- prosecution filed a handwritten motion to pellee. admit evidence of a sexual assault Vela, F. David Colorado State Public De- part gestae defendant as of the res fender, Gerash, Deputy Karen M. State Pub- purposes" offense and under the "other lan- *4 Defender, Denver, Colorado, lic 404(b). for Defen- guage prosecution gen- of CRE The dant-Appellant. erally argued that defendant's sexual assault cousin, of the victim's which had occurred
Opinion by Judge KAPELKE. years prior charged almost fifteen to the offenses, was so intertwined with all the tes- Defendant, Frost, Joseph appeals C. the timony necessary its admission was judgments upon jury of conviction entered jurors testimony the to understand the finding guilty verdicts him of sexual assault relationships among parties. the the child, incest, aggravated on a and two counts criminal, of habitual We reverse and re- ruling, In its the trial court concluded that mand for a trial. new relating prior to the sexual assault part was admissible as charged gestae Defendant of the res allega- was based on addition, charged the offenses. involving tions after con- his niece. The victim had ducting four-part the indicating People made test set out statements that defendant Garner, (Colo.1991), sexually her, had assaulted the court and her brother relating said concluded that that he had witnessed the incident. prior assault were also admissible under years Because the victim was four old and 404(b) explain CRE "to things number of trial, her brother was seven at the time case, gone that have on in already this as has competency hearing pursu- the held a been testified to a number of witnesses." 18-90-106, § ant to C.R.S.1998. The court found competent that both children were trial, cousin, During who was the vice- testify. available to After additional hear- abuse, prior tim of the testified that she ings, the court also held that out-of-court having witnessed defendant an "outburst" statements of the children were admissible during raped which he stated that he had C.R.$.1998. pursuant §to thought current victim and also had about raping the cousin. She stated that when she pre-trial Defendant moved for discovery of later confronted defendant about out- (DSS) Department of Social Services burst, remark, making he denied called Morgan Fort Mental Health Institute liar, her a and indicated that he had been (FMMHI) Following records. an in camera referring raped to another man who had her. records, review of the granted the trial court responded, The cousin then "I told him that part defendant's motion in and released a guy, only there was never other that the portion of the records. The court found that person anything that ever did like that to me the remainder of the documents were irrele- him." She then stated that defendant vant. sexually had assaulted her when she was Finally, prosecution was allowed to approximately years four or five old. introduce prior evidence of defendant's sexu- al assault on another one of testimony, his nieces as res Later in her the cousin also gestae charged pursuant of the offenses and recounted how the victim of the current 404(b). to CRE charges The convictions here at being is- had told her of assaulted sue followed. her, defendant and had then asked [de- "Did prior act re- generally that and after she you simply argued hurt too?" fendant] jury necessary to enable had, had evidence was current victim he sponded that testimony. all the understand said, seary, huh?" "It's testified police detective However, find no basis for we can defendant, de- that, with during interview in fact concluding evidence was that such violating the sexually admitted fendant any rele jury to understand needed for the years or five was four prior victim when she Further, even aspect of this case. vant prior vietim had thought the and that he old met, Spoto test were components of the other okay." "doing forgiven him and was here, the unfair cireumstances under sub of such evidence would prejudicial effect essentially concede value, stantially outweigh probative sexual as regarding the evidence marginal at appears best. agree. We gestae res evidence. sault was not cousin could example, the victim's victim For assault sexual victim's account of have about and the conversa testified place had taken mentioning the place sexual assault without took several at issue here all tions had inquiry whether defendant victim's about alleged assault. after the date months Similarly, cireumstances, defendant's also hurt the cousin. it cannot be said these Under could have been with statement to the detective "contemporaneous the evidence is *5 inclusion of the references presented without the character of serves to illustrate Rollins, prior sexual assault on P.2d to defendant's charged." People v. 892 crime (Colo.1995). alleged Finally, the cousin's 872 victim's cousin. only that he was the to defendant statement however, urge, that the evi- needed raped her was not one who had ever under properly admitted CRE dence was understanding of the comments defen- for an 404(b). persuaded. are not We had made. dant himself crimes, wrongs, or acts Evidence of other the information relevant In each instance a prove the character of not admissible to readily under- charged offense was to the in acted in to show that he person order own, simply there was on its standable however, may, be conformity therewith. "It relating to de- necessity for the evidence no purposes, such as to other admissible for prior criminal conduct. fendant's intent, motive, prepara- opportunity, proof of persuaded that identity, In we are not tion, knowledge, or absence of plan, 404(b). regarding prior sexual as- or accident." CRE mistake information in was somehow needed on the cousin sault a prosecution must articulate jury either the to understand order for the by a material fact precise hypothesis arrangements in the household or living prior permissibly inferred from the can be fact, the parties. In relationships among the independent of the use forbidden CRE act to nor admitted was neither offered evidence (Colo. 404(b). P.2d 1314 People Spoto, 795 in any for relevant evidence "context" show 1990). regard. this discere Trial courts have substantial that, although the court said note We also admissibility of determining the simi tion in prior as- the evidence of the it would allow evidence, reviewing and a lar transaction assisting purpose of only for the limited sault ruling absent will not overturn court evidence, understanding jury other in People v. showing an abuse of discretion. prosecutor opening statement even (Colo.1995). Gibbens, P.2d 604 905 years ago, the ten "approximately stated sexually cous- [the assaulted Here, that Defendant prosecutor did not indicate objection the com- Defendant's prior in]...." act evi- sought of the she admission argument, closing In purposes ment was overruled. specific limited dence 404(b). Nor did she actual- the cousin again stated in CRE prosecutor set forth of sexual assault" "had a victim hypothesis for the been ly precise articulate Thus, evidence. She act the use of the admission defendant. beyond presentation mere of a previously
fact went the victim's brother had context. recanted his statement that he saw the as- occur, original sault but then returned to his People, In 692 P.2d Callis version at the time of trial. While there was (Colo.1984), supreme discussed lay testimony complained that the vietim had admissibility of references criminal pain rash, of anal and had an anal there was appearing conduct custodial accused's confirming no medical evidence that an as- police. statement The court indicated that sault had occurred. Under these cireum- appropriate inquiry determining ad- stances, we do not consider the evidence missibility is "whether the reference to other overwhelming agree and cannot that the im- independent relevancy offenses has proper admission of the evidence of the and, not, charges whether this reference substantially sexual assault did not influence significantly can be eliminated without im- impair the verdiet or the fairness of the trial. pairing parts the substantive content of those Thus, we conclude that the conviction cannot of the statement otherwise admissible." required. stand and that a new trial is addition, the court noted that references prior criminality not otherwise admissible or must excised deleted "unless such exci- IL. significantly impair meaning sion would Among the issues that on arise retrial evidentiary parts value of the admissible is defendant's contention that the trial court of the accused statement." Im- See also E. committed concluding reversible error
winkelried, Uncharged Misconduct Evidence hearsay that the the victim and (1994) (uncharged § 6:12 evi- misconduct her brother were reliable and admissible. explain dence is admissible to relevant con- perceive We no error in the admission of only explanation duct when for the conduct is these statements. needed). actually standards, abuse, Applying reporting alleged these we conclude sexual *6 victim prior the references to the and her brother assault on made statements mother, cousin, their police their and to a independently the cousin were not relevant charged Following pre-trial hearing, to the offense and detective. a that such ref- the hearsay erences could have been excised without court concluded that the impairing the content of the relevant the children were state- admissible under the Further, exception ments. of excited hearsay evidence the as- utterance pursuant 13-25-129, § explain sault was not rule and needed the rele- C.R.S. 1998. vant conduct and statements.
Also,
concede,
People, supra,
People
as in
v.
Because
agree,
Callis
the
and we
any probative
here
hearsay
value of the references to
that the
qualify
statements do not
as
significantly
808(2),
criminal conduct was
out
excited utterances
under CRE
weighed by
only
danger
prejudice.
admissibility
of unfair
address their
under rele-
CRE 408.
statutory provisions.
vant
that,
People
§
urge
C.R.S.1998,
even if we con
Pursuant
a
statement,
clude that
improp
act evidence was
child's out-of-court
not otherwise
erly admitted,
the error should be deemed
admissible
a statute or court rule that
light
overwhelming
provides
hearsay exception, may
harmless
evi
be admis-
guilt.
disagree.
criminal,
dence of defendant's
any
delinquen-
We
sible as evidence in
cy,
proceedings
or civil
in which a child
ais
reviewing
say
I a
court can
with fair
victim of an unlawful sexual offense.
that,
light
assurance
of the entire record of
trial,
alleged
hearing
error did not substan
In a
conducted
pres-
outside the
tially
impair
influence the
verdict or
the fair
jury,
ence of the
the court must find that the
trial,
may properly
"time, content,
ness of the
the error
be
and cireumstances of the
Leske,
People
deemed harmless.
provide
safeguards
937 P.2d
statement
sufficient
of re-
52(a).
(Colo.App.1996);
addition,
liability."
see
P.
Crim.
the child must either
must be
that would
or there
time of the statements
proceeding
and the
testify at the
the statements.
the contents of
account for
is the
the act which
of
corroborative
findings.
supports the court's
The record
18-25-
Section
subject
the statement.
129(1)(a)-(b),C.R.S.1998.
discretion,
Therefore,
we find no abuse
again
would
the statements
admission of
in determin
considered
to be
Factors
on retrial.
appropriate
statement
out-of-court
ing
a child's
whether
include:
reliable
is
TIL
(1)
spon-
made
was
the statement
whether
taneously;
the trial
next contends
Defendant
denying him
to DSS
(2)
access
made while
court erred
statement was
whether the
ap-
argues that his
he
pain
from
records.
upset
still
or
the child was
allowed ac-
abuse;
should have been
pellate counsel
alleged
purposes of his
records for
cess to these
(3)
statement
language of the
whether the
disagree.
appeal. We
by a child the
likely
used
to have been
declarant;
age of the
pre-trial
for the
After defendant moved
(4)
allegation was made
regarding
discovery
whether
records
of all DSS
leading question;
victim,
brother,
family, the trial
response to a
their
her
review of the
an in camera
court conducted
(5)
hearsay
the child or
either
whether
Thereafter,
court released
DSS records.
against the defendant
bias
witness had
the re-
and found
portion of the records
lying;
any motive for
or
irrelevant.
the documents
mainder of
(6)
occurred between
any event
whether
the time
the abuse and
the time of
C.R.S.1998,
19-1-307(2)(f),
Section
con-
account for the
which could
statement
abuse or ne
access to child
grants a court
statement;
tents of
ac
finding that such
upon its
glect records
(7)
person heard
one
more than
whether
necessary for determination
may be
cess
statement;
is
access
the court. Such
an issue before
(8)
the child.
character of
general
inspection unless
an in camera
limited to
public disclosure
that the
court determines
Court, 776 P.2d
District
People v.
in the records
contained
information
(Colo.1989).
1089-90
then
of an issue
necessary
the resolution
concerning re
findings
court's
A trial
Turley, 870
it.
pending before
state
out-of-court
liability of a child-viectim's
*7
(Colo.App.1993).
P.2d 498
they
if
appeal
on
be disturbed
ments will not
Trujillo,
People v.
supported by the record.
are
the
seeking access to
party
(Colo.App.1996)
P.2d 277
initial burden of
92
has the
reports
child abuse
exception to
an
applicability of
showing the
that
the
court found
the trial
confidentiality. The
rule of
the statute's
brother
to
victim and her
the
the
obligation to review
no
is under
court
to
the victim's statements
mother and
their
a sufficient
there has been
record before
any
and that
spontaneous
her cousin were
an initial
it has made
proof and
offer of
non-leading.
In
questioning was
follow-up
Exline,
People v.
necessity.
finding
possible
of
addition,
testified that
and cousin
the mother
(Colo.App.1988).
7
frightened and nervous
children were
the
initially concluded
Although the trial
Similarly, with
describing the abuse.
while
made a sufficient
had not
defendant
police
made to the
regard to the statements
support
disclosure
proof
the
of
to
detective,
the detective's
offer
found that
the court
records,
court neverthe-
the
DSS
Finally,
confidential
non-leading.
were
questions
review of
in camera
conducted an
by both
less
language used
court found
Even if we
caution."
in an "excess of
records
that there was
age-appropriate,
was
children
of-
made a sufficient
that defendant
against
assume
by the children
prejudice or bias
no
for the
no basis
proof, we also find
defendant,
appear
fer
there did not
and that
Based on our
records.
of the DSS
disclosure
time of abuse
any
be
event between
to
documents,
agree
review of the
purposes
with the
appeal.
records
of this
trial
Also,
court's conclusion that the non-disclosed
allowing appellate defense counsel
to
documents were not relevant
to
issue
review the entire DSS file would unnecessari-
Therefore,
before the court.
we conclude
ly
protecting
sacrifice the state's interest
in
that the trial court did not abuse its discre-
confidentiality
of DSS records. We thus
tion.
conclude that
the trial court's
in camera
records, along
review of the DSS
with our
reject
We also
defendant's
conten
appeal, provides
review on
sufficient safe-
appellate
tion that his
counsel should have
guards
right
discovery
defendant's
to
been allowed access to the sealed records for
potentially exculpatory material.
purposes
appeal.
of his
Ritchie,
39,
Pennsylvania
480 U.S.
IV.
989,
(1987),
107 S.Ct.
325 record, the evi- this state of the Under P. 32. Crim. against the defendant. sessed prove convic- to defendant's dence submitted in the it is entered when judgment A enters Harris, supra. support for a provide adequate docket. tions could criminal an habitual crimi- judgment conviction as prove defen must prosecution The nal. beyond a reasonable prior convictions
dant's reversed, the cause judgments are The Bielecki, P.2d 598 964 People v. doubt. new trial. remanded for a (Colo.App.1998). concurs. Judge TAUBMAN prior convie- as to one of certified dissents. tions, presented Judge METZGER prosecution order, meets the minute copies of the dissenting. Judge METZGER entry ac docket of a criminal requirements in the of discretion I see no abuse Because 55(a)(8) therefore, and, P. cording to Crim. concerning of evidence court's admission trial con entry judgment of constitutes assault, respectful- I prior sexual defendant's Harris, supra. People v. viction. See majority opinion part I of the ly dissent from order, conjunction with a minute defendant's conviction. and would affirm information, recited copy of the certified purposes in CRE permissible The list of attempt plea criminal guilty defendant's 404(b) of other crimes evidence admission for and a sen- on a child sexual assault commit Miller, P.2d People v. 890 is not exhaustive. addition, In years probation. two tence of (Colo.1995). are numerous other There 84 pro- copies of the conditions the certified criminal acts which evidence of uses to probation the termination order and bation are neither put, those enumerated applicable costs court order stated collectively exhaus- mutually nor exelusive There- defendant's sentence. also recited § Evidence 190 on tive. See McCormick records fore, the certified together, taken (J. ed.1992); 2 & M. Strong 4th J. Weinstein of a necessary elements all the established Federal Evidence Berger, Weinstein's P. 82. under Crim. judgment of conviction ed.1999). (J. McLaughlin 2d § 404.22[6] evidence estab- the testimonial admitting other proper purpose for One person who was the defendant lished that of a show the context is to acts evidence prior offense. had been convicted Brewer, 1 States v. charged crime. United convie- led to the the offense which victim of Cir.1993). (4th F.3d 1430 been the defendant had testified that tion Sarracino, 131 F.3d States United juris- further identified perpetrator. She (10th Cir.1997), analyzed had been en- the conviction in which diction relating to a defen context whether tered, case was approximate time the properly culpability was admission dant's filed, received. defendant and the sentence 404(b). Fed.R.Evid. pursuant admitted that, during Also, police testified a detective not court had Concluding that the trial interview, defendant admitted pre-trial a admitting evi such abused its discretion involving victim and also prior conviction dence, the court reasoned: two-year sen- having received admitted unable to find Although have been probation. tence to principle to the context applying cases reject the one before defendant's like
Finally, we also situation once-removed admitting us, the reasons we believe improperly trial court contention in this situ- apply equally alleged context evidence judicial that the crimes notice took *9 make expected to jury 'cannot be ation. A were felonies. See prior convictions the two United States in a void" its decision P.2d 1070 People, 649 Massey (4th Cir.1980). 83, Masters, 622 F.2d 86 (Colo.1982)(classification past is a of a offense jury determine had to judicial The members taking a court's question of law and admis- weight give [defendant's] to to what province does not invade notice of such they to know sion, had and to do so jury). cireumstances under which the admission basement. The children were never to be Consequently, was made. because the evi- alone with defendant. denee was offered to show context and not family Defendant's brother and his moved merely tendency to show had a [defendant] out of that home in late November 1994. violence, part toward the first of the Rule 1994, In mid-December defendant's broth- 404(b) [proper purpose] test was satisfied. three-year-old er's wife was told her Sarracino, supra, United States v. 131 F.3d daughter, here, the victim that "Uncle Joe
at 949. [the defendant] hurt me." The child de- graphically scribed parties argued admissibility The incident of sexual as- of the sault she challenged light said had occurred in the basement rule set 1045, living when she was out in the same People, Callis v. 692 P.2d house as (Colo.1984), six-year-old defendant. Her provides: brother con- firmed, separately, essentially the same facts court, We thus hold that a trial in consider- and related that he had seen the incident ing admissibility of an accused's state- through the basement window. ment, must excise or delete reference prior eriminality is not reported otherwise mother the incident to the exceptions police.
admissible under the narrow The children's statements to authori- general exclusion, rule essentially unless such ties report were the same as the significantly they given excision impair would had her. meaning evidentiary and value of the ad- According testimony, to the niece's in mid- parts missible of the accused's statement. March watching while television with If the trial court rules that the reference to 18-year-old niece, his mother and his defen- prior criminality qualifies for admission began that, screaming dant "I tried to f*** applicable under relevancy rules of or that [the victim]." He going also said he was the reference cannot be excised without rape the niece who was in the room at the impairing meaning evidentiary val- time. parts ue of the other admissible That niece later confronted defendant with statement, the court must then adbere to the threat during he had made his outburst. procedural safeguards [v. Stull Peo- having Defendant denied said that and told (1959) ple, 140 Colo. ] her, "I talking about guy that other appropriately instructing jury on the raped you." rejoined, guy? She "What other purpose limited for which such evidence is No one raped else has ever me other than being received. you." respond. fact, Defendant did not proce- The evidence at issue here and its sexually defendant had assaulted her when history
dural are as follows. approximately years she was four old and pled guilty had to that offense. being after released in October 1994 serving entirety from prison of his sen- reported The niece this conversation to the sexually tence assaulting one of his police and defendant admitted to a detective nieces, defendant returned home to live with sexually that he had assaulted her several parents. his living Also in that home were years earlier. He having also admitted told wife, along defendant's brother and his with her sexually that he had assaulted the victim young their three children. in this case. Because history, of defendant's criminal days A few after defendant's confrontation living arrangements rigidly niece, were demarcat- with his approached by she was ed; defendant's brother and the brother's victim this case. The victim confided to family lived in the basement and defendant defendant's niece how sexually defendant had parents upstairs. his lived During conversation, children assaulted her. this victim asked: had been you parents "Did Uncle Joe hurt too?" instructed their grandparents go upstairs said, "Yes," never to and defen- The niece and the victim then dant had go strict orders never seary, stated: agreed. "It's huh?" The niece
327 theory alleged that the victim and fendant's Procedurally, the issue of admission sexually sophisticated as her brother were so somewhat convoluted. was these statements concocting their eapable of stories. to be trial, counsel day defense before to redact from defendant's moved A trial court has substantial discretion prior all references to his detective admissibility determining the of evi when prosecutor response, criminality. People Vialpando, v. dence of other acts. regarding the admit the statements moved to (Colo.App.1997). P.2d 617 Onee a trial 954 pursuant the niece prior assault on sexual may that such evidence court has ruled 404(b) gestae. and res CRE admitted, afford it the maximum we must by a reasonable probative value attributable granted defen- partially The trial court all references to prejudice motion and redacted dant's the minimum unfair fact finder and incarceration, all refer- prison reasonably expected. People defendant's v. to be Gib (Colo.1995). prior Thus, assault on bens, defendant's sexual ences to P.2d 604 sister, to his and all references evidentiary ruling only the niece's overturn this of his sister. alleged prior manifestly arbitrary, sexual assault it unrea we find to be However, the refer- sonable, the court determined People Czemerynski, or unfair. (Colo.1990). on his niece sexual assault ences to would be admitted. say its I cannot the trial court abused analyzed evidence in The trial court admitting in the evidence. Its de- discretion principles in light of the set out thorough findings completely tailed and are (Colo.1991), Garner, and found: P.2d 366 pur- supported by the record. The context begins very beginning, [de- with It at the light unique pose proper in facts was prison and being released from fendant] here, including the rela- and cireumstances ... being arrangements made living among parties, their con- tionships with him.... children would not be alone motives, theory and defendant's ditions and fully, in arrangement cannot That whole the fact of defendant's of defense. Unless opinion, be understood Court's known, on his niece were prior sexual assault understanding why it is jury them without framework within jury would have no arrangements were made. that the defendant's or the to evaluate either to her.
victim's statements arrangements of living the unusual Under made, num- allegation is then a Once the testimony in family, that he was defendant's involve the Defendant's ber of statements highly with the victim the basement niece] ...: [his contact with [she] However, significance ap- significant. moving again in with moving and then out arrange- only for those parent if the reason parents], who were her aunt victim's [the jurors re- If the had not ments is known. then, uncle, because [the victim] and and eriminal testimony about defendant's ceived house, having the in the [the niece] was placed in the history, they would have been bringing speak with her and opportunity to determining guilt or impossible position of her, talking with her her bedroom snippets unrelated innocence reference to al- including statements of the Defendant meaning. having no contextual of information hurting The ex- legedly [the niece] also. that, mother planation the children's Hence, highly relevant evidence was happened, as about what either detail prejudicial as to not so probative and was testified, detective, or as she she told the bias, as inject considerations such extraneous his cousins and the Defendant hurt proceed- into the sympathy, anger, or shock stay away him is also they should from Gibbens, And, supra. ings. People v. part of this case and evidence which is jury correctly instructed the as trial [the niece]. on involves the assault purpose each time the evidence its limited final instruc- again proper was mentioned that this was The court determined evidence, particularly light of de- tions. context
Therefore, I would find no abuse of discere- tion and would affirm defendant's convie- tion. Colorado,
The PEOPLE of the State of Plaintiff-Appellee, Salazar, General, Attorney Ken John J. Fuerst, IH, Attorney General, Assistant Denver, Colorado, Plaintiff-Appellee. for City County JAMES, Eric and West, Lynn Denver, Colorado, Jessica for Denver, Intervenor. Defendant-Appellant. No. 99CA0568. Muse, City Attorney, Daniel E. Efrain M. Appeals, Colorado Court of Padro, City Denver, Attorney, Assistant Col- - orado, Intervenor. A. Div. 17, Feb. 2000. Opinionby Judge MARQUEZ. 7, Aug. 2000.*
Certiorari Denied Defendant, James, Eric has fileda motion
for reconsideration of the trial court's denial "gang of access to files" that were sealed for review, appellate City County and the (City) Denver moved to has intervene. The granted motion to intervene is for the limited purpose addressing the issue of access the sealed record. The motion for access to the sealed record is denied. charged twenty-seven
Defendant was with including felonies violation of the Colorado Organized Crime Control Act. Section 18-17- seq., charge alleged et That C.R.S.1999. that defendant was a member of the Bloods gang participated pat- and as such had in a racketeering. tern of defense, preparing his defendant sub poenaed Department Denver gang Police files for those individuals listed as members City quash of the Bloods. The moved to subpoena. district court reviewed the gang quash files and determined to the sub poena by application of the Public Records 24-172-204(@2)(a)() Act, §§ C.R.S., 1999, and Martinelli v. District Court, (1980). 199 Colo. It denied defendant access to the files and appellate sealed them for review. * participate. Justice COATS does not