People v. Leonard

reject the no- sistance of counsel. challenge Colorado,

tion that the mere failure to The PEOPLE of the State Plaintiff-Appellee, conviction ineffective assistance establishes neglect of counsel and constitutes excusable justifiable part on the of the defen- or excuse LEONARD, John Patrick dant. The trial court therefore did not err in Defendant-Appellant. finding neglect justifiable no excusable failing challenge excuse for defendant’s No. 91CA1546. prior applicable convictions within the Appeals, Colorado Court of time limitations. Div. IV. 4, Nov. 1993. C. Rehearing Denied Dec. 1993.

The defendant also asserts that 16—5— April Certiorari Denied 1994. challenges 402 does not bar to federal convic-- a “plain language” tions. He

reading of the statute makes clear .that

time limitations to attack convictions apply do not convictions and federal the trial court erred in suppress

motion to his sole federal argument

Because this was not raised be- court,

fore the trial we do not address County here. See Wilson v. Board Com-

missioners, event, argument even us,

properly before the conviction and sen-

tence of defendant as a habitual criminal because, change already

would not requires only previous, three statute con- 16-13-101(2). Suppressing

victions. See

the sole federal conviction would still‘leave felony

four other convictions. is affirmed. DAVIDSON, JJ.,

MARQUEZ and concur. Norton, Gen., Raymond Atty. A. T.

Gale Gen., Slaughter, Deputy Atty. Timothy Chief Gen., Booras, Tymkovich, A. M. Sol. Laurie Gen., Denver, Atty. plaintiff-appel- Asst. lee. Vela,

David F. State Public De- Colorado fender, Mounteer, Deputy Joan State Defender, Denver, defendant-ap- Public pellant. (1973);

Opinion by Judge Hood v. RULAND. see also Huerta v. Peo- Defendant, Leonard, appeals Patrick John ple, 168 Colo. Ordi- of conviction entered narily, the evidence was received for the finding aggravated him scheme, showing plan, a or de- appeals 12-year incest. He also 299, sign. Godfrey People, See v. 168 Colo. and the trial court’s order (1969). However, early P.2d 451 291 in its 35(c) motion for a new trial his Crim.P. based jurisprudence governing admission similar’ discovered evidence. We affirm generally, transaction evidence the court also order, of conviction and vacate “always” held that such evidence was admis- sentence, resentencing. and remand for sible to show the accused’s motive to commit Defendant’s convictionwas based tes- 107, a People, crime. v. 43 Colo. Warford timony by his adult had he 112, 556, P. 96 558 see Bell v. also engaged in sexual intercourse with her when People, 158 Colo. years she was 13 old. Currently, similar transaction evi hearing At a in li- on defendant’s motion dence is in admissible sexual assault cases to regarding mine admission similar transac scheme, plan, design, operandi, show prosecution proposed tion motive, guilty knowledge or if that evidence testimony concerning elicit victim from the four-part admissibility meets the test for un improper other seven incidents of sexual con 404(b) statutory require der CRE and the commencing tact when the victim was three 16-10-301(2), Repl. ments of age. require addressing After 8A). Vol. Adrian v. ments for admission of similar transaction (Colo.1989). adopted People Spoto, v. 795 P.2d (Colo.1990) Garner, People 1314 and 806 The trial court has substantial discre (Colo.1991), the trial court conclud deciding admissibility tion of this evi ed that the evidence was admissible to show dence, and if there is an abuse discre motive, subject giving limiting appropriate ruling People tion will its be disturbed. jury. instructions to the Czemerynski, 786 P.2d 1100 I. A. appeal, On defendant contends that regard to the threshold issue man admitting trial court erred the similar similarity dating charged between the transaction evidence. He maintains that the conduct, uncharged that the trial we conclude evidence was not admissible to establish mo- determining court did not err in tive because the motive is inferred from the requirement. evidence satisfied this act itself and that one motive could be crime, The record reveals sufficient and substan- namely, gra- from inferred sexual similarity tial between the other transactions tification. He further contends that and the offense The similar trans- ruling require- court’s violated all of the four private places, actions occurred were char- type ments for admission of this of evidence 404(b) express implicit intim- acterized under CRE as established defendant, and involved the same idation Finally, Spoto, supra. Vollentine, parties. People v. P.2d 643 requisite similarity lacking. We are (Colo.App.1982). persuaded. 404(b) Although there were differences as to the Prior to 16-10-301(2), 8A), activity performed during Repl.Yol. type of sexual each incident, against the it is not essential that the other evidence of sexual assaults replicate respects man victim held transactions all same child admissible proof commit supreme court in connection with ner which the crime supra; offense on number of occasions. ted. Elliston, McKibben, (Colo.App.1993). 508 P.2d 862 P.2d independent logical the victim relevance must be indicated The evidence older, activity changed prohibited inference that the defendant com- grew the sexual charged because mitted the crime of his intercourse. digital penetration sexual probative propensities; sup- criminal record conclude that there is substantially out- value of must ruling. port the trial court’s weigh danger prejudice. unfair B. initially require- the first two address ments for of this evidence under admission reject contention also rule, i.e., whether the evidence related was not the evidence admissible and, so, a material fact whether the evi- obvious, for the act was logically in that dence was it had namely, gratification. tendency to the existence of the mate- make recognize of un that evidence probable. more rial fact gen is charged conduct indicative of motive opening as confirmed the state- erally for the of establish admitted ment of trial counsel and the defendant’s Imwinkelried, ing identity or intent. See the prosecution cross-examination of witness- Uncharged Misconduct Evidence 3:15 es, position the defendant’s was that (1984). However, of such admission evidence victim acts were fabricated the and thus 16-10-301(2) approved under has been Hence, view, never occurred. our evi- cases on sexual assault a number occasions dence of the acts of assault defendant’s bearing as motive even consequence against the victim without though and intent were not at issue. to that demonstrate was more (admitted People, supra, to Adrian v. show probable than that defendant a mo- had People operandi); and modus v. yet tive to commit assault another and thus (admit Holder, (Colo.App.1984) testimony to demonstrate that the victim’s knowledge); ted motive and to show People, Adrian v. fabricated. See (admitted Vollentine, supra, to Hence, supra. we find no abuse of the trial scheme, plan, design); motive and and show admitting discretion in this court’s (admitted McKibben, People supra, v. logically as relevant to a material issue in the plans, operandi, mo show common McKibben, People supra. case. See v. intent). tive, Thus, gratifi while sexual assault, may cation be a motive in sexual logical We next address whether the rele- establish, necessarily as cases the cited the independent the vance of evidence was concept of motive more. involves intermediate that inference had a bad character. concept

In of motive in a may sexual assault ease also address other agree that with defendant this evi- why particular a relevant factors as person good does not a dence describe type why particu- McKibben, of behavior involved or People supra character. See lar victim is selected for the assault. J., However, (Briggs, dissenting). same as occur- evidence of motive reflected case, every is true assault we prior uncharged may rence of conduct tend pertinent precluding read the cannot cases establish offense. introduction of the evidence for this reason. trial conclude that the court did not err in Conversely, as the trial court concluding that similar transaction evidence charged, of the crime remoteness here on issue of was admissible testimony fact that case turned on the against

the victim that of defendant and the itself, C. the need nature incident for the compelling. evidence was See Adrian v. 404(b), applying four- supra. part supra, adopted People test (1) requires that: the evidence must relate to Because evidence also indicates more (2) character, case; namely, fact in the it must bad a motive for material be than (3) offense, fact; logically relevant to material commission we con- (2) trial; elude, with the other cases ad- ered after the that defendant and consistent dressing requirement, diligence counsel all this exercised discover admitting possible not err in the evidence. court did evidence favorable to the defendant (3) People trial; People, supra; during Adrian v. to and McKibben, supra. newly To the extent that discovered evidence is material to the Guilbeaux, involved, (Colo.App.1988) merely 761 P.2d 255 issues and not cumulative or here, impeaching; newly with the result we rea6h inconsistent discover- we decline to follow that decision. proba- ed evidence is of such a character as bly bring acquittal an about Addressing requirement the final at another trial. v. Gutier- probative value of the evidence is not sub- rez, stantially outweighed by danger unfair prejudice, type we note Motions for new trial based on dis- has not been deemed inadmissible generally covered evidence are looked requirement virtue of this in the'various disfavor, with and a denial of such a motion appellate Colorado decisions cited above with will not be overturned unless it has been cases, patterns. fact Like those clearly shown that the trial court abused its there is no basis the record for us to Williams, discretion. conclude that the evidence this case excit- (Colo.App.1992). jury of the ed emotions irrational behavior. the trial court determined that trial, the evidence after was discovered the defendant and his counsel exercised due II. diligence to discover all favorable evidence jury The trial court instructed the at trial, during to and and that the trial, at the time evidence was admitted newly discovered evidence was material. general charge jury, again to the Nonetheless, the court concluded that being that the evidence was admitted for the evidence would not have resulted in an ac purpose demonstrating limited of quittal of the defendant. substantially The instructions language tracked the of Nos. COLJI-Crim. presented at The evidence the motion contends, 2:02 and 4:02 Defendant hearing period did not account for the entire however, reversal alleged contained the information. The required because the trial court failed to April incident between 7 Au- occurred define motive its instruction. We dis gust 1980. The evidence was in conflict agree. family as to whether the defendant and his July moved to Wetmore in June or of 1980. In our “motive” is a word with which Hence, we conclude that the trial court did persons intelligence common reasonable by denying the mo- not abuse its discretion would be familiar and not so technical as to upon newly tion for new trial based discover- jurors’ create confusion in minds as to its with ed evidence. We concur the trial meaning. the trial court was not newly court’s conclusion that the asserted required jury. to define the word for the probably evidence would not have discovered (Colo. Deadmond, People v. produced acquittal on retrial. 1984). III. IV. next Defendant contends finally Defendant contends that the trial

trial court abused its discretion sentencing him court abused its discretion newly motion for new trial based on aggravated range. He again disagree. evidence. discovered illegal because it exceeds presumptive range maximum in To succeed on a motion for new trial based findings the defendant the trial court failed to make discovered extraordinary aggravating that the evidence was discov- circumstances as must show: 1330 (1986 18-1-105(7), § § C.R.S. of sexual intercourse. See 18-3-

required sisted (1986 8B). 8B). 401(6), agree. Repl.Vol. C.R.S. Repl.Vol. unlike sexual crimes based range punishment avail The intrusion,” “sexual contact” or “sexual both of trial court is determined to the able may require proof which that such contract applicable law at the time the offense. was for of “sexual intrusion Wieghard, (Colo.App. P.2d 977 arousal, abuse,” gratification, or see 18-3- 1987). offense be Because the occurred (1993 401(4), Cum.Supp.); C.R.S. 18-3- 25, 1980, appli April August 7 and tween (1986 401(5), 8B); People Repl.Vol. C.R.S. presumptive range cable sentence for a class West, (Colo.1986), crime felony eight plus was one three four to required with defendant which was 18-l-105(l)(a)(I), parole. year of Section proof any specific no intent. Proof 8B). Repl.Vol. presentence The knowingly engaged defendant sexual inter- range report stated that four to course with his was sufficient years, presumptive sixteen which was range at the of trial. Section 18—1— time 105(l)(a)(IV), Cum.Supp.). Moreover, case no contested alleged perpe- as to the Hence, in order to sentence defendant to trator. complaining witness was defen- years, required the trial court was stepdaughter, dant’s and she testified that specific findings detailing make on the record charge the incident which the specific extraordinary circumstances place based took while she and defendant varying constitute which the reasons living in the same residence. 18-1-105(7). presumptive range. Section specific did not Since court make theory of The sole the defense was that the findings extraordinary aggravating cir- incident did not occur. While did cumstances, we vacate the sentence and re- testify, theory this to was the resentencing. mand for jury through attempted impeach- counsel’s witnesses, People’s including ment of the the Accordingly, the are order victim, closing in argument. affirmed, vacated, the is and the resentencing. cause is remanded for initially offered the contested purpose proving evidence for the both PLANK, J., concurs. However, opemndi and modus motive. only trial court concluded that the relevance CRISWELL, J., dissents. particular upon of a opemndi is Judge dissenting. CRISWELL identity perpetrator. issue that, legitimate given I am was not a convinced the offense here, the trial court concluded produced, and the evidence the simi- similar incident lar offenses that to evidence was not admissible were described purpose. any for that here were not relevant to in fact issue. Hence, I am also convinced However, the court also concluded to prejudicial court committed error in admit- might that the extent establish ting this evidence. I therefore dissent motive, defendant’s was majority’s of the judgment affirmance issue of defendant’s intent and would be ad- purpose. question mitted for that only

Defendant was with the crime of of defendant’s motive was evidence, in aggravated receipt incest as defined 18-6- and the limit- 302(l)(e), 8B). Repl.Vol. ing given jurors As instruction to the informed here, only that crime consisted of know- them that it was “to bé considered as it ingly inflicting penetration upon relates to motive.” instruction was This stepchild stepchild referring at a question time when was one to the of “mo- tive”; age. less than Under the evi- term was in nowhere defined dence, penetration,” instructions; jurors “sexual as charged, con- and the were never in- structed to consider this evidence Colorado’s of the rules of evi question changes of defendant’s intent or otherwise dence made at least some in the prior Nevertheless, informed as to how defendant’s was common “motive” law. the su by respect any preme them with court to be considered has made clear that these rules the crime with which he element of have continued Colorado’s “restrictive policy” against admitting of other offenses. supra. here, Given the circumstances Moreover, Honey Spoto both have em- engaging in “motive” sexual intercourse phasized requirement proffered with his was not self-evi- evidence must be both relevant to some con- itself, the act but dent from under statute necessary prove tested issue and such incest, defining aggravated example, supreme issue. Irrespective irrelevant. of defendant’s intent court warned that: motive, if knowingly engaged he the act admissible, prosecution To be must step- underage of sexual intercourse with his precise hypothesis articulate a evidential daughter, he then committed the crime of by permissi- which a material can be Indeed, fact aggravated incest. even defendant bly indepen- inferred from the act harbored some bizarre intent or motive 404(h). dent of the use forbidden (which engaging in such intercourse is no evidence), way suggested (emphasis supplied). he 795 P.2d at 1319 would crime, long still be of this so he as was previous opinion Honey, rationally aware of his actions. Rovira, writing Justice for a unanimous court, said: certainly It true that both 16-10- necessary prove The evidence must be 301(1), Cum.Supp.) and CRE the material fact issue for which it is 404(b) receipt authorize the offense If offered.... the defense has conceded tending evidence as to establish a defendant’s issue, or if it has been established However, a defendant’s motive does competent other evidence of the always relevancy meet the test of set out and, such, unnecessary act is rule, To be CRE 401. relevant under that inadmissible. tendency evidence must have a “to make Colo, (emphasis at 596 P.2d at 754 consequence fact that existence is of supplied). proba the determination of the action more ” probable.... (emphasis supplied) ble or less identity it if the establishment of undisputed, trial court concluded defendant’s motive will make the existence of evidence of the incidents was inadmissi- (such Yet, other fact in issue as the operandi. some ble to establish a modus perpetrator or the existence of the very analysis persuasive same is even more intent) proba requisite specific more or less convincing me same evidence was any ble that is relevant case. See properly prove admissible to the exis- Casper, (Colo.App. question tence of motive as relevant Imwinkelried, 1981); Uncharged Miscon intent. Evidence, 3:18; § duct 4:19 3:15— required were not As prove specific existence intent. recognize opinions by that some earlier I Further, that, dispute defendant did supreme court have contained dicta to in the manner de- incident occurred always the effect that evidence of motive is witness, complaining the na- scribed issued, opinions These admissible. ture of the incident itself established however, before the of the Colorado requisite “knowing” state. mental and before the more re Rules of Evidence wholly irrelevant evidence admission of People Honey, cent decisions entirely unnecessary. (1979); People The determi- P.2d 1314 sole issue the incident nation this case was whether complaining witness oc- described real of establish-

curred. had occurred

ing that similar incidents jurors be- have the infer

past was to before, he also was did it

cause defendant Yet,

guilty of the incident is, sort of my precisely

inference 404(b) mandates to be

inference that CRE significant

improper. because of naturally has

impact that such evidence prejudicial receipt er-

jurors, its constituted

ror. reasons, reverse the I would

For these and remand the cause

judgment of conviction court for a new trial.

to the trial AWAI, Plaintiff-Appellant,

Francis J. KOTIN, Ph.D. and

Edward Coreen

Boeding, Ph.D., Defendants-

Appellees.

No. 92CA0766. Appeals,

Colorado Court

Div. V. 18, 1993.

Nov.

Rehearing Denied Dec. 1993. 2,May Denied 1994.

Certiorari

Case Details

Case Name: People v. Leonard

Court Name: Colorado Court of Appeals

Date Published: Nov 4, 1993

Citation: 17 Brief Times Rptr. 1689

Docket Number: 91CA1546

Court Abbreviation: Colo. Ct. App.