Peo v. Adamson

19CA1502 Peo v Adamson 10-07-2021 COLORADO COURT OF APPEALS Court of Appeals No. 19CA1502 Mesa County District Court No. 18CR1265 Honorable Brian J. Flynn, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Larry Glenn Adamson, Defendant-Appellant. JUDGMENT AFFIRMED Division VII Opinion by JUDGE NAVARRO Grove and Pawar, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 7, 2021 Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Sean J. Lacefield, Deputy Sta te Public Defender, Denver, Colorado, for Defendant-Appellant 1 ¶ 1 Defendant, Larry Glenn Adamson, appeals the judgment of conviction entered on a jury verdic t finding him guilty of second degree assault. We affirm. I. Factual and Procedural History ¶ 2 Adamson and Cheryl Teany knew each other since their youth and began dating following the end of their respective marriages. In the summer of 2018, Teany was st aying at Adamson’s trailer hom e. ¶ 3 According to Teany, she and Adamson had an altercation on June 23, 2018. After he woke up from a nap, they discussed his relationship with his children, whi ch upset him. Adamson call ed Teany insulting names, and she r esponded by throwing water at him. Adamson began to hit Teany in the head with his fists. Sh e then sat at the back of the trailer w hile Adamson went to a local convenience store. After fifteen mi nutes, Teany gathered her belongings and went back to her hom e. ¶ 4 Upon seeing the extent of her injur ies in the mirror, Teany called 911. During the call, she to ld the dispatcher that Adamson had “beat [her] up” at his trailer a nd said she did not want him to “get away with this.” Deputy Micha el Dixon came to her residence, took her statement, and called an ambulance. 2 ¶ 5 Adamson gave a different account of what happened. He said that, after he fell asleep, Teany wo ke him up by yelling and hitting him in the head with her purse. They argued about where Teany would live if not with Adamson. H e testified that she got upset after he told her to be quiet. She thr ew water in his face. Afterwards, Adamson told Teany that their r elationship was over. After she walked out the door, Adamson h eard the sound of a fence rattle an d Teany yelling. He helped her insid e and tended to her bleeding nose. Teany then left. Adamson d enied punching her. ¶ 6 Adamson was charged with assaul ting Teany. At trial, the prosecution presented testimony fr om Teany, Deputy Dixon, and experts who testified to the extent and nature of Teany’s injuries. The prosecution also played for the j ury audio recordings of Teany’ s 911 call and her interview with Deputy Dixon at her residence. ¶ 7 Adamson also testified. His theory of defense was that Teany fabricated the assault because she was having financial problems and was upset that he would not let her move in with him. ¶ 8 The jury convicted Adamson of s econd degree assault, and the trial court adjudicated him a habit ual criminal. 3 II. Admission of Teany’s Recorded St atements to the 911 Operator and Deputy Di xon ¶ 9 Adamson first challenges the trial court’s admission of Teany’s out-of-court statements. We perc eive no error. A. Standard of Review ¶ 10 “A trial court has substantial discr etion in deciding questions concerning the admissibility of evi dence,” and its rulings are reviewed for an abuse of that discr etion. People v. Elie , 148 P.3d 359, 362 (Colo. App. 2006). A trial court abuses its discretion if it s decision was manifestly arbitrary, unreasonable, unfair, or based on an erroneous understanding or application of the law. People v. Clark , 2015 COA 44, ¶ 40 . B. Applicable Law ¶ 11 Hearsay is a statement other than one made by the declarant while testifying at trial, offered to p rove the truth of the matter asserted. CRE 801(c). It is inadm issible unless permitted by a hearsay exception, such as an exc ited utterance. People v. Phillips , 2012 COA 176, ¶ 61 ; CRE 802; CR E 803(2). ¶ 12 A statement is not hearsay if “[t]h e declarant testifies . . . and is subject to cross-examination c oncerning the statement, and t he 4 statement is . . . consistent with his testimony and is offered to rebut an express or implied charg e against him of recent fabrication or improper influence or motive.” CRE 801(d)(1)(B). When admitted under this rule, prior statements a re substantive evidence. People v. Eppens , 979 P.2d 14, 20 (Colo. 1999) ( Eppens II ). ¶ 13 CRE 801(d)(1)(B), however, “was n ot intended to provide the exclusive avenue for the introducti on of prior consistent statements.” Id. at 21. Prior consi stent statements may also be admissible to rehabilitate a witn ess whose credibility has been attacked. Id. ; see Clark , ¶ 124. When admissible for this purpose, the statements are not hearsay. See Eppens II , 979 P.2d at 20 . C. Analysis ¶ 14 At trial, the prosecution sought t o introduce recordings of Teany’s 911 call and her interview with Deputy Dixon. The trial court overruled Adamson’s hearsa y objections, reasoning that both recordings were admissible as excited utterances. ¶ 15 On appeal, Adamson challenges th e court’s rulings that the recordings qualified as excited utt erances. We need not decide whether the court was correct, how ever, because we agree with th e People that the recordings were admissi ble as prior consistent 5 statements for rehabilitation. See Pe ople v. Pernell , 2014 COA 157 , ¶¶ 35-37 ( Pernell I ) (holding that, although the trial court erred in admitting statements as excited utt erances, reversal was not required because they were admis sible as prior consistent statements to rehabilitate a witn ess’s credibility), aff’d on ot her grounds , 2018 CO 13 ( Pernell II ); People v. Garcia , 2012 COA 79, ¶ 62 (noting that appellate courts may affirm a trial court’s evidentiary rulings on any ground supported by the record, even if not articulated or even considered by the trial court). ¶ 16 Defense counsel attacked Teany’s cr edibility throughout trial. On cross-examination, defense co unsel asked Teany about her “acrimonious” divorce, whether sh e was upset that she was not awarded spousal maintenance, if s he made a “pretty limited income,” and whether she remember ed Adamson telling her that they would not be living together. During a bench conference and in response to the prosecutor’s rel evance objection to questions about Teany’s divorce, defense coun sel explained that “it goes to h er motive and credibility” and that “she f elt somewhat spurned” because she was not receiving spousal maintenance and Adamson refused to let her move in with hi m. 6 ¶ 17 Defense counsel also highlighted a lleged inconsistencies between Teany’s direct-examinatio n testimony and her statements to Deputy Dixon. For instance, d efense counsel attempted to elicit Teany’s admissions that she had n ot told Deputy Dixon that (1) she and Adamson were arguing “abo ut anything related to [his] family”; 1 (2) her phone was broken during the assault; (3) she suffered certain bruising as a result of the a ssault; and (4) Adamson had hit her with both fists. ¶ 18 Defense counsel repeated these cha llenges to Teany’s credibility during closing argum ent. Counsel argued that Adamson “was helping [Teany] out with her bills” after “a pretty heart-wrenching divorce,” she wan ted to move in with him but was “now suddenly being dumped agai n,” and “that’s when the argument happened.” Counsel als o repeatedly encouraged the jury to “think about what [Teany] did a nd did not say to Deputy Dixon. ” Specifically, counsel said, “Do yo u hesitate when you think about Teany? And folks, she did have ma ny inconsistencies in her 1 Defense counsel was mistaken a bout this. In her interview with the deputy, Teany did mention that she had argued with Adamson about his family immediately bef ore the assault. 7 testimony. A lot of things she said on the stand that she didn’t ever say to Deputy Dixon. You have tha t recording; you have that audio.” Similarly, counsel argued that Teany did not mention certain details in the 911 call that she mentioned in her testimony, and counsel encouraged the jury to listen to the 911 recording too. ¶ 19 Given these comprehensive attacks on Teany’s credibility, the 911 recording and Teany’s recorde d statements to Deputy Dixon were admissible as prior consist ent statements to rehabilitate her. See Eppens II , 979 P.2d at 22-23 ; see also Pernell I , ¶ 39 (recognizing that defense counsel’s vigorous cross-examination of the witness about her version of events and her prior statements was “precisely the kind of attack on a witness’s credibility that allows for the introduction of prior consistent statements to rehabilitate that witness”); Eli e , 148 P.3d at 362 (“[I]f the impeachment is general and not limited to specific facts, then th e jury should have access to all th e relevant facts, including consistent and inconsistent stat ements.”); People v. Tyler , 745 P. 2d 257, 259 (Colo. App. 1987) (The vic tim’s consistent statements in the police report were relevant b ecause, after a general impeachment, her credibility was a t issue and “the jury should hav e 8 access to all the relevant facts, incl uding consistent and inconsistent statements.”). Although the prior statements were admitted before Teany was cross-e xamined, this evidence would have been admissible after defens e counsel’s cross-examination, “rendering harmless any error in its premature admission.” Pernell I , ¶ 41. ¶ 20 Adamson argues that this case is distinguishable from Eppens II because the prosecution offered Teany’s statements as substantive evidence (i.e., as excit ed utterances). But, while it is true that the prosecution offered, a nd the trial court admitted, both recordings as substantive evidence, that fact does not distinguish this case from Eppens II . ¶ 21 In that case, too, the trial court ad mitted the out-of-court statements as substantive evidenc e — there, under CRE 801(d)(1)(B). See Eppens II , 979 P. 2d at 16 ; People v. Eppens , 948 P.2d 20, 25 (Colo. App. 1997) ( Eppe ns I ), rev’d on other grounds , Eppens II . Still, our supreme court found no error because the prior consistent statements w ere admissible for rehabilitative purposes and used by the prosecut ion for rehabilitative purposes. See Eppens II , 979 P.2d at 22-23 ( holding that the trial court did 9 not err by admitting the prior consi stent statements “as they were relevant, nonhearsay statements th at were admissible outside CRE 801(d)(1)(B)”). The supreme court explained that, given the defense’s attacks on the witness’s c redibility, the admission of the witness’s prior consistent statem ents “was necessary to give the jury an appropriately complete pi cture of her credibility” and “th ere is no evidence that the prosecutio n relied upon [the witness’s] prior consistent statement as substantiv e support for its case, thereby implicating CRE 801(d)(1)(B).” I d. In fact, the prosecutor in closing argument urged the jury to “[l]ook at the consistency” in what t he victim said on the stand and what she said in her prior statem ents. Id. at 23. ¶ 22 Likewise, divisions of this court ha ve discerned no error in the admission of prior consistent stat ements where they were admissible for rehabilitative purpos es, even where the trial court had admitted them for substantiv e purposes. See Pernell I , ¶¶ 35- 41 (admitted as excited utterances) ; People v. Miranda , 2014 COA 102, ¶¶ 13, 20 (admitted under se ction 13-25-129, C.R.S. 2020, and for rehabilitation). The upshot of those cases and Eppens II is that, regardless of whether the evi dence was improperly admitted as 10 substantive evidence, no error occ urred if the evidence was admissible for rehabilitative purpos es and used for those purposes. ¶ 23 In this case, the prosecution did n ot use Teany’s prior statements as substantive evidenc e to fill in gaps from the trial testimony. In that regard, this cas e is unlike Tome v. United States , 513 U.S. 150 (1995), on which Ad amson relies. There, the prosecution had to use out-of-cour t statements as substantive evidence of the charged crimes b ecause the minor victim was unable to utter more than “one- an d two-word answers” on direct examination. Id. at 153, 165. In contrast, the prosecution in this case primarily used the out-of-cou rt recordings to support Teany’s credibility as a witness. See als o Eppens II , 979 P.2d at 23 (distinguishing Tome ). On direct ex amination, the prosecutor elicited testimony from Teany that was largely consistent with what she reported to the 911 operator and Deputy Dixon, apart from minor discrepancies related to th e timing of when Adamson hit h er and when she called 911. ¶ 24 Importantly, the prosecutor in clos ing argument emphasized the consistency between Teany’s t estimony and the recordings. Th e prosecutor pointed to details that Teany “was consistent on 11 throughout,” in that she mention ed them at trial, in the 911 call, and in her interview with Deputy Dixon. More than once, and similar to what happened in Eppe ns II , the prosecutor argued that various discrepancies between Tea ny’s testimony and her out-of- court statements were insignificant and that “the salient details have not changed. The important d etails with [Teany] have not changed.” See id. at 22 (“[T]he pro secution sought to demonstrat e that, with the exception of the few d etails highlighted by the defens e on cross-examination, [the victim’ s] testimony at trial was generally consistent with the version of ev ents she gave during her interview with Officer Pino.”). Thus, as in Ep pens II , the prosecution here used Teany’s prior statements to r einforce what she testified to at trial. See id. at 23. ¶ 25 Given all this, we conclude that t he 911 recording and the recorded statements to Deputy Di xon were admissible. 2 2 Adamson notes that the trial court did not give an instruction limiting the jury’s use of this evid ence to assessing Teany’s credibility. That was also true, however, in Eppens II , Pernell I , and Miranda . And Adamson points to n o authority requiring such a limiting instruction where evidenc e is admitted for rehabilitation. 12 III. Jury’s Unfettered Access to th e 911 Recording ¶ 26 Adamson next contends that the t rial court erred by allowing the jury unfettered access to the 9 11 recording during deliberations. We do not discern r eversible error. A. Standard of Review ¶ 27 Control over the use of exhibits du ring jury deliberations is within the trial court’s discretion. DeBella v. People , 233 P.3d 664, 666 (Colo. 2010). We will not dist urb a trial court’s refusal to exclude or otherwise limit the us e of an exhibit absent an abuse of that discretion. Id. at 667. ¶ 28 Adamson preserved this issue. Ac cordingly, we review any error for nonconstitutional harml ess error. See id. Under this standard, we reverse only if an erroneous ruling substantially influenced the verdict or affected t he fairness of the trial. See i d. B. Analysis ¶ 29 Generally, a jury is permitted to r eview in the jury room all exhibits received into evidence, sub ject to the trial court’s discretion to order otherwise. See Frasco v. People , 165 P.3d 701, 703 (Colo. 2007). That is, “control over the us e of exhibits during jury deliberations in criminal proceedin gs must remain firmly withi n the 13 discretion of the court,” and a trial court should take steps to ensure that juries are not permitted t o use exhibits in a manner that is unfairly prejudicial to a part y. Id. at 704. ¶ 30 In particular, a court should be ca utious when permitting a jury to rehear portions of testimony and “exhibits substituting for trial testimony.” Rael v. Peopl e , 2017 CO 67, ¶ 22 . “[T]he reason trial courts have an obligation, at least where prompted to do so by a party, to exercise discretion in p ermitting testimonial exhibits to be viewed by deliberating juries is to guard against their being giv en undue weight or emphasis . . . .” Ray v. People , 2019 CO 21, ¶ 16 . ¶ 31 During the jury instruction conf erence in this case, defense counsel tendered an instruction s eeking to limit the jury’s use, during deliberations, of the audio r ecordings of the 911 call and Teany’s interview with Deputy Dix on. The trial court originally agreed to give the defense’s proposed in struction with respect to both the 911 call and the interview . After further argument from the prosecutor, however, the court decided to limit the jury’s acc ess to the recording of the interview bu t not the 911 recording. Defense counsel then withdrew the request to limit the jury’s use of the 14 recording of the interview. The c ourt thus imposed no such limitation as to either recording. ¶ 32 On appeal, Adamson argues that the trial court erred by not limiting the jury’s access to the 911 recording. He does not, however, challenge the court’s fail ure to limit the jury’s access to Teany’s interview with Deputy Dix on. ¶ 33 Teany’s 911 call and interview wit h Deputy Dixon were largely consistent. During the 911 call, she s aid, “I was at my boyfriend’s house, and he beat me up, and I can’t see out of my eye.” When t he operator asked if Teany needed an ambulance, she responded, “ I don’t want him to get away with this.” She continued, “I have ice on my eye. It’s very severely black an d blue . . . I’m blowing blood out my nose, and there’s blood all ov er inside of his damn trailer.” ¶ 34 Likewise, during her interview wit h Deputy Dixon, Teany said Adamson “beat the shit out of [h er]” while calling her a “fucking bitch” and that he did so because she dumped cold water on him. She also explained the extent of h er injuries and why she was conflicted in calling the police, explaining, “I love this man but I can’t allow him to do this to me, I can’t.” 15 ¶ 35 The only substantive differences in the two recordings were Teany’s statements regarding what time the assault occurred. Indeed, Adamson does not argu e that the two recordings were different in a significant way. ¶ 36 Hence, the jury had unfettered acc ess to a recording (the interview) that was largely cumulat ive of the 911 recording. Any error in permitting the jury unf ettered access to the 911 call wa s, therefore, harmless. Cf. People v. Ma pps , 231 P.3d 5, 11 (Colo. App. 2009) (concluding that any error in admitting the evidence was harmless because it was cumulativ e of other evidence). So revers al is not warranted. IV. Habitual Criminal Counts ¶ 37 Adamson’s last contention is that the trial court denied his right to a jury trial on the habitual criminal counts when it found that he had three prior felony con victions and sentenced him to four times the maximum in the pr esumptive range. We disagree. ¶ 38 “ Other than the fact of a prior convi ction , any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and p roved beyond a reasonable doubt.” Apprendi v. New Jers ey , 530 U.S. 466, 490 (2000) 16 (emphasis added). Our suprem e court recognized the continued vitality of this prior conviction exception in Lopez v. People , 113 P.3d 713, 723 (Colo. 2005). Its ho lding is dispositive. See People v. Moore , 226 P.3d 1076, 1089-90 (C olo. App. 2009); People v. Nunn , 148 P.3d 222, 224-28 (Colo. App. 2006). ¶ 39 Relatedly, we disagree with Adamso n that Alleyne v. United States , 570 U.S. 99 (2013), alters t he analysis. The Court in t hat case did not abolish the prior convi ction exception; instead, the Court expressly declined to revisit that exception. See id. at 111 n.1; People v. Session , 2020 COA 1 58, ¶ 27 (rejecting the notion that Alleyne did away with the pri or conviction exception). V. Conclusion ¶ 40 The judgment is affirmed. JUDGE GROVE and JUDGE PAWA R concur.