People v. Vollentine, 643 P.2d 800

People v. Vollentine

643 P.2d 800

Colo. Ct. App.

1982

Check Treatment

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas Lee VOLLENTINE, Defendant-Appellant

No. 81CA0008

Colorado Court of Appeals, Div. I.

March 25, 1982

642 P.2d 19

Kresse v. Bennett, supra, the court noted that: “[I]f punishment is not commensurate with the injury done the award will generally be held unreasonable.‘” (emphasis added) The use of the word “generally” in the foregoing quote or the word “ordinarily” as used in , is recognition that there is no per se rule and that, indeed, allowance has been made for cases where a variation of facts would warrant a jury in assessing exemplary damages beyond the limits that our courts have previously approved. Here, the jury could find from the evidence and inferences to be drawn from such evidence an exception to the general rule.

Furthermore, the jury here was instructed in accordance with Colo.J.I. 5:3 (2d ed. 1980) which instruction does not advise the jury as a matter of law that the exemplary damages must be reasonable in relation to the actual damages awarded. The instruction was given by the court in conformity with C.R.C.P. 51.1 which, in pertinent part, states that “in instructing the jury in a civil case, the court shall use such instructions as are contained in Colorado Jury Instructions (C.J.I.) as are applicable to the evidence and the prevailing law.” However, the jury was advised that before awarding exemplary damages that if they found by evidence “beyond a reasonable doubt that the injury complained of was attended by fraud, malice, or insult, or a wanton and reckless disregard of the rights and feelings of the plaintiff, then in addition to any actual damages, [they] may also award the plaintiff a reasonable sum as exemplary damages.” Further, they were instructed that “exemplary damages are not to be construed as compensation to the plaintiff for wrong done, but as punishment to the defendant and as an example to others.”

The defendant did not object to or seek any clarification of the instruction as given, although he had the opportunity to do so. Accordingly, since defendant failed to request a clarifying instruction that the exemplary damages should be reasonable as compared to the actual damages awarded, he now is in no position to complain. See

Caldwell v. Kats, 193 Colo. 384, 567 P.2d 371 (1977). See also . We leave defendant in the posture which he accepted and placed himself.

The trial court did not perceive the exemplary damages as being excessive and refused to grant a new trial on this ground. Since we recognize that “an appellate court is not in as advantageous a position as the trial court to weigh the factors involved and to ascertain the reasonableness of exemplary damages,”

Frick v. Abell, supra, we find no clear abuse of discretion on the part of the trial court in refusing to set aside the award of exemplary damages or order a remittitur, and thus, we will not disturb that determination. .

Nor do we perceive exemplary damages in an amount equal in essence to only one months’ earnings of defendant as being evidence of passion or prejudice, nor does it demonstrate that the jury refused to be properly guided by the purposes of exemplary damages.

Defendant‘s other contentions of error are without merit.

Judgment affirmed.

KELLY and KIRSHBAUM, JJ., concur.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Mary E. Ricketson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Stephen H. Sletta, Colorado Springs, for defendant-appellant.

ENOCH, Chief Judge.

Defendant, the ten-year-old victim‘s stepfather, appeals his conviction of sexual assault on a child without force. We affirm.

Defendant‘s first contention is that the trial court erred in admitting testimony by the victim concerning two prior incidents of sexual molestation of the same victim by this defendant. We disagree.

Although evidence of wrongdoing which is entirely independent of the crime charged is normally inadmissible,

Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959); , evidence of prior similar transactions is admissible to prove, among other things, plan, scheme, design, and motive, and this is particularly so in sexual assault cases. Section 16-10-301, C.R.S. 1973 (1978 Repl. Vol. 8); . Whether the statutory conditions for admissibility have been met is a question for the trial court‘s sound discretion. , aff‘d, . And, where the prior transaction involved the defendant and the same victim, , evidence of the prior transactions will normally be admissible under the plan, scheme, or design exception. See, e.g., ; .

Here, the prior transactions occurred one week and one month before the offense charged, see

People v. Elliston, 181 Colo. 118, 508 P.2d 379 (1973), and the record reveals substantial similarity between the prior transactions and the offense charged. The prior transactions occurred in private or secluded areas, were characterized by similar threats, and involved the same parties. We agree with the trial court that evidence of the prior transactions was admissible.

Defendant‘s second contention is that the trial court erred in ruling that if defendant elected to testify at trial, he could be impeached by evidence of an earlier guilty plea in a separate case to a similar felony. We disagree.

After the acceptance of the guilty plea in question, defendant entered into a deferred sentencing stipulation pursuant to § 16-7-403, C.R.S. 1973 (1978 Repl. Vol. 8). At the time of this trial, the plea had not been withdrawn, nor had the prosecution effected the revocation of the deferred sentence.

Evidence of a prior guilty plea, as evidence of a prior conviction, is admissible for impeachment purposes, regardless of whether a sentence has been imposed.

People v. Baca, Colo. App., 610 P.2d 1083 (1980). The rationale behind this rule is that the accuracy of the guilty plea is assured by the providency hearing which precedes the plea. . Both a plea leading to a normal sentence and one followed by a deferred sentence are preceded by a providency hearing. Crim.P. 11. Thus, at least until the plea is withdrawn, following the successful completion of the conditions of deferral, we see no reason to distinguish, for impeachment purposes, between a guilty plea where sentence has not yet been imposed, and a guilty plea where sentence has not been imposed under a deferred sentencing stipulation. See , cert. denied, . Cf. (holding that the guilty plea preceding a deferred sentence resolved the issue of guilt for double jeopardy purposes). We therefore hold that evidence of a guilty plea entered in a deferred sentencing stipulation may be used for purposes of impeachment of a defendant who has elected to testify, when the plea has not been withdrawn, even though there has not been a revocation of the deferred sentence or sentence imposed at the time of trial.

Defendant‘s final argument is that the trial court erred in allowing the prosecution‘s expert rebuttal witness to testify. Again, we disagree.

Defendant presented, among others, two witnesses who specifically alleged, during direct and cross-examination, that the victim‘s testimony may have been false. The victim‘s mother testified that the victim was not a truthful child, and had made statements to her which were inconsistent with the child‘s testimony at trial. The custodial mother in the receiving home in which the victim was placed following the incident also testified that the victim was not a truthful child. During cross-examination, the prosecution attempted to show the receiving home mother‘s bias by exposing her hostility toward the victim, and elicited testimony that she was upset by the victim‘s seductive behavior towards the men of the receiving home. The prosecution then presented the testimony of an expert who stated that girls who are victims of nonforcible molestation by adult male family members tend to display seductive behavior toward adult males in a foster home as well as in the natural home, and that the natural mother of such an assault victim tends to disbelieve the victim‘s report because she feels threatened by the child‘s usurpation of the role of wife.

Defendant‘s contention that the expert‘s testimony should have been excluded because the expert was not endorsed by the prosecution is not well taken. The requirement, contained in Crim.P. 16(II)(c), that the prosecution disclose the identity of its rebuttal witnesses under certain circumstances, is inapplicable where the rebuttal testimony is not introduced to refute a defense, but is introduced solely to impeach the credibility of a defense witness.

People v. Muniz, Colo.App., 622 P.2d 100 (1980). Here, the expert‘s testimony was introduced to explain and document the bias of the defense witnesses who attacked the victim‘s credibility, and it was not necessary for the prosecution to endorse its witness.

Finally, defendant argues that the expert testimony was admitted without proper foundation because it was based on the opinions of others, because it was general in nature, and because it was not based on interviews with the victim or other personal knowledge of the facts of this particular case. We disagree.

The expert based his opinion on the assumptions that a ten-year-old female was molested in a non-violent manner by an adult male family member, and placed in a foster home containing adult males. Expert testimony may be based on the assumed truth of facts made known to the expert at the trial.

O‘Brien v. Wallace, 137 Colo. 253, 324 P.2d 1028 (1958).

We have reviewed defendant‘s other contentions and find them to be without merit.

The judgment of conviction is affirmed.

VAN CISE, J., concurs.

KELLY, J., dissents.

KELLY, Judge, dissenting.

I respectfully dissent. I agree with the majority‘s ruling on all issues, except the holding that evidence of a guilty plea entered pursuant to § 16-7-403, C.R.S. 1973, may properly be admitted to impeach a defendant who has elected to testify. In my view, both the language of the statute and the policy underlying it militate against the result here reached. See

People v. Widhalm, Colo., 642 P.2d 498 (1982); ; .

The resolution of this issue is of particular significance here, since the defendant‘s revocation proceedings had been continued pending the outcome of this criminal case, as permitted by § 16-11-206(3), C.R.S. 1973. See

People v. Ray, 192 Colo. 391, 560 P.2d 74 (1977). Under the majority‘s ruling, the People can‘t lose for winning: They are permitted to use the prior guilty plea against the defendant in this prosecution, thus making more likely his conviction here and making a certainty of his revocation in the prior case. See ; Comment, Impeachment of Witnesses by Prior Convictions Pending Appeal, 46 U.Chi.L.Rev. 499 (1979). Under these circumstances, I think a defendant should be permitted to testify with impunity from this kind of impeachment.

Since, in my view, the trial court‘s ruling has impermissibly chilled the defendant‘s constitutional right to testify, I would reverse the conviction and remand for new trial. I would, however, direct the trial court, on remand, to give the jury an instruction limiting the purpose of the evidence of the victim‘s “seductive behavior” to the question of the witness’ credibility, such evidence not being admissible as an affirmative defense to this charge.