People v. Harding
983 P.2d 29
Colo. Ct. App.
1999
Check Treatment

*1 mgs concerning the statute of limitations

claim as to these loans. properly

Because Mitchek asserted the defense,

statute of limitations and because it fact,

requires findings of we must remand

this matter to the trial court. parts judgment denying

Those of the

Kargs’ request attorney fees and costs allowing Karg Gerald J. credit for the $17,626.63 totaling plus

two loans interest are judgment

reversed. The balance of the

affirmed, and the cause is remanded for fur- proceedings

ther consistent with the views

expressed opinion. in this

Judge Judge RULAND and ROY concur. Colorado,

The PEOPLE of the State of

Plaintiff-Appellee, HARDING, P.

Stanton Defendant-

Appellant.

No. 96CA1749. Appeals,

Colorado Court of

Div. I. 17,

Sept. 1998.

Rehearing 19, Denied Nov. 1998. Aug.

Certiorari Granted 1999. *2 General, Norton, Attorney A.

Gale Martha Phillips Allbright, Deputy Attorney Chief General, Westfall, Richard A. Solicitor Gen- eral, Cannici, Attorney Peter J. Assistant Denver, General, Colorado, Plaintiff-Ap- pellee. Vela,

David F. State Colorado Public De- fender, Roan, Ann M. Deputy State Public Defender, Colorado, Denver, for Defendant- Appellant.
Opinion by Judge JONES. Defendant, Harding, appeals Stanton judgments of one of conviction and the sen- upon jury entered tences verdicts guilty degree sexual third assault force, assault, degree use of third of a commission crime of violence. af-We firm.

I. Defendant first contends the tri allowing al erred in evidence of court Specifically, acts to be bad admitted. argues subject improp that the evidence was because, erly contrary admitted to the re quirements People Spoto, (Colo.1990), prosecution failed to “precise hypothesis by articulate a evidential permissibly which material fact can be from [misconduct] inferred inde pendent prohibited] by of the [inference 404(b).” error. perceive CRE We no hearing At prosecution’s on the motion to evidence, introduce the transaction similar prosecutor offering ple stated that he was 681 P.2d at 515. However, identity, guilty evidence to establish if a applies trial court correct intent, standards, knowledge, design, necessary findings and motive. De- makes to es therefore, fendant, waiver, per- was on notice of the sup tablish and evidence exists to *3 purposes prosecutor port findings, the missible for which those then the trial court’s Indeed, proffering was the evidence. the of waiver will not be disturbed on object- People Gray, record indicates that defense counsel review. v. 920 P.2d 787 (Colo.1996). evidentiary hypotheses, arguing ed to the identity only the was relevant basis for by the trial court did err in admitting Accordingly, the evidence. defen- forming jury the defendant that the would be claim, prosecutor dant’s the failed to instructed to prior felony consider his convic comply procedural requirements with the of purpose tions for the limited impeaching of

Spoto, cannot stand. “character,” his rather “credibility.” than his Yet, despite the trial court’s incorrect termi

II. nology, defendant was informed of all the Defendant also contends that required elements under Curtis an other properly court failed to advise him with re- thorough wise advisement. spect testify to his decision to whether at Thus, the circumstances in this case are trial. We find no reversible error. unlike those cases which reversal was required because the court failed to inform

A trial court must to seek assure that the defendant of a Curtis element. See Peo right testify a defendant’s waiver of the Chavez, (Colo.1993)(con- ple v. 853 P.2d 1149 voluntary, knowing, and People intentional. viction reversed because defendant Curtis, (Colo.1984). was not v. 681 P.2d 504 evidentiary informed toas limited use of his Further, in order to meet constitutional convictions); prior felony Milton, People v. respect standards with to a defendant’s deci- (same). supra the Under circumstances in testify, sion whether to the court cases, those the of absence an instruction defendant, must advise the on the record: regarding evidentiary pri- the limited use for right testify, a [t]hat has that if he felony impression or convictions left the testify wants to then prevent no one can prior convictions could be used as sub so, doing him from that if he testifies the here, however, stantive evidence. Defendant prosecution will be allowed to cross-exam- properly jury informed that the would be him, ine that if he has been convicted of a purpose instructed as to the limited for which felony prosecutor will be entitled to jury previous could consider his convic thereby ask about it and disclose it to tions. jury, and that if conviction is tl>e Therefore, the circumstances in this case jury jury disclosed to the then the can be People Gray, are more like those in v. supra, only instructed to consider it as bears (Colo. Deskins, upon credibility.... his [T]he defendant cases, In both of those the court should also be right advised that he has a that, although found the advisement could testify not to testify and that he does not precise, have giv been more the advisement then the can be instructed about that en was because it informed the right. by defendant that his felonies could 681 P.2d at 514. prosecution “only raised for the limit precise litany No must be followed purpose impeachment.” ed of People advising a defendant of his or her 791; Gray, supra, 920 P.2d at However, testify. the advisement in must Deskins, Milton, supra; People v. su cf. clude all of the elements set out Curtis. ; Chavez, pra supra. Milton, People v. Deskins, Gray As in the trial court’s Generally, indulge every “courts complied underly- rea advisement here with the presumption against ing policy sonable waiver.” by informing Peo- of Curtis defendant propensity to commit sexual consequence testifying would defendant had a be disagree with assaults. We defendant.

impeachment with convictions. Furthermore, indicates that de- the record jury inquires the mean about When testifying with fendant discussed the issue instruction, the court ing particular aof attorney and her advice. his considered provide supplemental instruction should Thus, thoroughness the trial court’s jury’s uncertainty. A clarify the sufficient to advisement, along ad- with defense counsel’s original be referred back to should discussion, persuades us that there is ditional it is clear that it has instructions when probability court’s inad- little that the trial portion some thereof or when overlooked the word “character” vertent substitution of clearly inquiry. Leo answer instructions “credibility” for the word drove defendant (Colo.1986); People, 728 P.2d 1252 nardo v. *4 make a decision whether to testi- Bachicha, (Colo.App. P.2d 965 People v. fy have made. that he otherwise would not circumstances, where the ad- Under these Here, responded the the trial court substantially complied with the re- visement by jury’s question informing it of the sole quirements hold that it was of we evi- purpose for which it could consider the knowingly, that to assure defendant Therefore, contrary dence. to defendant’s voluntarily, intentionally and waived his contention, jurors the were made aware that Deskins, testify. supra. they the to infer that could not use evidence propensity the to commit bad

defendant had III. because, according to the court’s instruc- acts tions, improper purpose that was an for con- Defendant next contends that the trial Further, clarified sideration. the court its respond adequately to the court failed to by explaining what the earlier instructions evidentiary jury’s inquiry regarding the val- in phrase purposes” “for meant identification evidence. We ue of the similar transaction Thus, of case. the instruc- the context this find no error. jury’s given tion was sufficient to vitiate the Prior to the admission of the similar trans- uncertainty, and did not constitute error. evidence, again action and in the written instructions, trial the the court instructed IV. jurors they that to consider the evi- were final is that Defendant’s contention dence of defendant’s bad acts for the trial court abused its discretion sen identity. purpose establishing the limited tencing aggravated maximum to the deliberations, During tri- the sent the years. disagree. term of We sixteen question: following al court the written Sentencing discretionary, in or is [A.P.]

In the situation of the could witness a constitute an abuse of der for sentence to you “purely pur- for identification define discretion, (sic) manifestly arbitrary, it must be poses” for Are we to consider the us. unreasonable, Hughes, or unfair. charge relationship past of this to the act? (Colo.App.1997). response jury’s question, In to the gave following court instruction: showing Absent a that the court’s may You the evidence of the inci- sentencing by consider wide latitude in was marred a involving purpose for the sole discretion, sentencing [A.P.] dent deci clear abuse determining whether the defendant’s appeal. People will not be reversed on sion identity proved beyond has been a reason- Lowery, person able doubt as the who committed sentence, imposing In the trial defendant’s charged in the crimes this case. primary considerations court stated its were, security provide “a need to sense of [a] contends that Defendant community op- response inadequate preclude [to] court’s because for portunity anoth- [defendant victimize] that it not use for failed inform the could er_” that, The noted at the evidence to infer that trial court the similar transaction supreme recognized, the assault While the court has time defendant had committed case, previous People Gray, supra, probation he was on Des this kins, (Colo.1996), that a trial of another woman. sexual assault “only” court’s omission of the word from the addition, presentenee In it referred to the reversal, might advisement not mandate a report which indicated that defendant had the court has continued to stress in a inci- been involved with a woman third jury’s defendant must be advised that, factually, a third dent constituted de- consideration of convictions would be assaults, previous gree sexual assault. These credibility limited to the issue of and not along defendant with evidence from and the extend to the substantive in the issues case. report, persuaded presentence the trial court argument, at oral con predator that defendant sexual who ceded evidence of defendant’s felo would, opportunity, given continue his ny convictions would not have been admissi behavior the future. Indeed, prove ble to his “character”. CRE Accordingly, because the sentence was 404(b) expressly provides that: “Evidence of appropriate sup- based on reasons which are ... prove other crimes is not admissible to record, ported it will not be disturbed person the character of a in order to show on review. conformity that he acted therewith.” See *5 (Colo. People Spoto, also v. 795 P.2d 1314 judgment The and sentence are affirmed. subjects an accused While who testifies JUDGE METZGER concurs. credibility, himself to an attack on his he KAPELKE, part in JUDGE concurs and thereby place general not does his character part. dissents in Tippett, in issue. See (Colo.1987). Judge concurring part KAPELKE in and Chavez, Milton, supra, In both dissenting part. the court reversed convictions because respectfully I dissent to Part II as of the jury defendants had not been informed that majority opinion which holds that prior felony consideration of their convictions court’s under advisement credibility. would be limited to the issue of (Colo.1984) 681 P.2d 504 was to court, Gray distinguishing The the facts voluntarily assure that defendant waived his Chavez, that, there from those stressed right testify. Although I to concur with Chavez, unlike the trial court “did not analysis of the other issues addressed in the respect mislead defendant” with to the ad- majority opinion, I believe that a reversal gave visement it him use of the required and remand for a new trial are felony purposes evidence of convictions for because of the error in the advisement. impeachment credibility. of his that, The trial court advised defendant if contrast, although er- court’s testified, prosecution permit- would be roneous use of the “character” rather word any prior felony to ask him ted about convic- inadvertent, “credibility” may than have been tions, jury but that the would be “instructed the fact remains that the court’s advisement felony only consider conviction as it mistakenly did mislead defendant. It con- ” your (emphasis .... bears on character veyed impression that he testified his added) felony by the convictions could be considered hence, and, progeny require jury bearing Curtis and its that a de- as on his character propensity conformity fendant that the act in with be advised could con- his such felony suggested it that sider conviction as bears on character. Because thus credibility of a defendant who convictions could be used for sub- testifies. (Colo.1996); People Gray, purposes, merely stantive and not for credi- Milton, (Colo.1993); bility purposes, assessment the advisement Chavez, misleading. improper P.2d 1149 was both circumstances, agree I cannot these

Under majority’s the ad- conclusion

with the adequate to assure that defen- was

visement voluntarily, intentional- “knowingly,

dant testify.”

ly right to waived his reject People’s

Finally, I conten- would that, the record discloses

tion because testify right with his

defendant discussed stand, electing hot to take the

counsel before any required in event.

reversal would not be if it were assumed defendant’s

Even correctly the limit- as to

counsel advised consider purpose for which the could

ed assumption which felony convictions—an

his the mis- support record

lacks —because advisement, leading nature of the court’s minimum, existed, likelihood of at a

there my In part defendant. on the

confusion

view, any likelihood undercuts testify waiver of his

that defendant’s voluntary.

Accordingly, I the cause for would remand

a new trial. *6 Lynn HARVEY, Plaintiff-Appellant,

Jodi Slack, and Brett Plaintiffs-

Julie Slack

Appellants Cross-Appellees, EXCHANGE, a

FARMERS INSURANCE corporation, Defendant-

California Cross-Appellant,

Appellee and Corpo- Medical Resources

Diversified corporation,

ration, a Minnesota

Defendant-Appellee. 96CA2293,

Nos. 97CA0996. Appeals,

Colorado Court III.

Div. 1, 1998.

Oct. 29,

Rehearing 1998. Denied Oct. Sept. 1999.

Certiorari Granted