[Copyrighted Material Omitted]
Weld County District Court Nos. 10CR1618 & 11CR351. Honorable Timothy G. Kerns, Judge.
John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Law Office of Suzan Trinh Almony, Suzan Trinh Almony, Broomfield, Colorado, for Defendant-Appellant.
Opinion by JUDGE GABRIEL. Miller, J., concurs. Webb, J., specially concurs.
[¶1] Defendant, Eli Curtis, appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of sexual assault on a child-position of trust-pattern of abuse and two counts of aggravated incest, all arising from sexual acts with his two daughters, S.C. and C.C. We conclude that (1) the charges in this case were properly joined; (2) the trial court did not err in refusing to suppress statements that Curtis had made during an interview with a Colorado Bureau of Investigation (CBI) agent because Curtis's statements were voluntary and he did not unequivocally invoke his right to remain silent; and (3) the trial court did not abuse its discretion in admitting certain res gestae evidence. Accordingly, we affirm.
[¶2] Curtis was charged in two separate cases with sexually assaulting his two young daughters. These assaults began when the victims were nine or ten years old and continued until they were removed from the home several years later.
[¶3] The first case involved S.C., and the prosecution's evidence tended to establish sexual contact that did not involve force or violence. The evidence further showed that S.C. became pregnant twice as a result of Curtis's assaults. The first pregnancy resulted in the birth of a stillborn child, and evidence in the record showed that Curtis had concealed the body, first in a black box in the garage and later in a pickle or Mason jar in the basement, and that he had repeatedly joked about the baby in a jar. S.C.'s second pregnancy resulted in the live birth of a child, and biological testing confirmed that Curtis was the father of this child. Curtis's defense to the allegations regarding S.C. was that he did not knowingly have sexual contact with her. Rather, he claimed that S.C. had drugged him and then initiated the sexual contact.
[¶4] The second case at issue involved C.C. The prosecution's evidence tended to show that Curtis forcibly assaulted C.C. multiple times, thus distinguishing the circumstances in C.C.'s case from those in S.C.'s case. Curtis's theory of defense regarding C.C. was a general denial.
[¶5] Prior to trial, the prosecution moved for joinder of the two cases, and the trial court conducted a hearing on this motion. After hearing the parties' arguments, the court began its analysis by performing the four-part test for admitting CRE 404(b) evidence set forth in People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990), recognizing the propriety of joinder when the evidence of each offense would be admissible in separate trials. The court first found that the evidence of each offense would be relevant in the other case to show Curtis's intent and common plan, scheme, or design. The court then found that the evidence was logically relevant and that the logical relevance of this evidence was independent of the prohibited intermediate inference that Curtis had acted in conformity with his bad character. In this regard, the court noted that the location of the offenses was the same, the " isolation of the children [was] remarkable," the victims' ages were " relatively close in time," the charges overlapped in terms of the date of offenses, and C.C. was a witness to " the alleged incident" with S.C. And the court found that the maximum probative value of the evidence at issue was high and, implicitly, that this probative value was not substantially outweighed by the danger of unfair prejudice.
[¶6] The court further observed that it had considered section 16-10-301, C.R.S. 2013, in which " the legislature has highlighted the importance of similar transactions, particularly in the nature of sex offenses, and the presumptive admissibility of that evidence."
[¶7] Based on the foregoing findings, and over Curtis's objection, the court granted the request for joinder, and at trial, it instructed the jury that (1) the evidence and the law applicable to each count should be considered separately, uninfluenced by the jury's decision as to any other count; (2) evidence related to each victim could be used for the stated limited purposes as evidence of Curtis's guilt as to the other alleged victim; and (3) the jury was prohibited from considering evidence that Curtis had sexually assaulted either victim as evidence that he had a bad character and therefore a propensity to commit the crimes.
[¶8] Also prior to trial, Curtis moved to suppress the statements that he had made during his interview with the CBI agent. Curtis asserted that his statements were involuntary and that he had unequivocally invoked his right to counsel. As more fully discussed below, the court rejected both of these arguments and denied the motion to suppress.
[¶9] The case proceeded to trial, and Curtis did not testify. The jury ultimately convicted him as set forth above, and he now appeals.
[¶10] Curtis first contends that the trial court abused its discretion in allowing the prosecution to join for trial the charges involving
the respective victims. We are not persuaded.
[¶11] As a preliminary matter, we address the preservation issue raised by the People and discussed in our colleague Judge Webb's special concurrence.
[¶12] Unlike Judge Webb, we see no reason to address whether People v. Gross, 39 P.3d 1279, 1281-82 (Colo. App. 2001), which concluded that a defendant need not renew a pretrial objection to the prosecution's motion for joinder and which has been on the books without apparent controversy for almost thirteen years, was wrongly decided. In this regard, we are persuaded by the wise counsel of now-Chief Justice John G. Roberts, Jr., who, as a circuit court judge, noted " the cardinal principle of judicial restraint -- if it is not necessary to decide more, it is necessary not to decide more." PDK Labs. Inc. v. U.S. Drug Enforcement Admin., 362 F.3d 786, 799, 360 U.S.App.D.C. 344 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment). This is particularly true in a case like this, where reaching the Gross issue unnecessarily could create a split among divisions of this court, as Judge Webb would do. Cf. People v. Smoots, 2013 COA 152, ¶ 20, ___ P.3d ___ (cert. granted in part on other grounds June 30, 2014) (noting that one division of the Colorado Court of Appeals is not obligated to follow the precedent established by another division but that the latter division gives the prior decision considerable deference).
[¶13] We perceive our task as deciding cases on the merits when it is appropriate to do so. See Goodman Assocs., LLC v. WP Mountain Props., LLC, 222 P.3d 310, 320 (Colo. 2010) (noting that the resolution of disputes on their merits is favored). Accordingly, we see no reason to depart from Gross, when it is not necessary to do so, in order to create a waiver or forfeiture that does not presently exist.
[¶14] Turning to the merits, we review a decision concerning the joinder of separate charges for an abuse of discretion. See People v. Pasillas-Sanchez, 214 P.3d 520, 530 (Colo. App. 2009) (concluding that the trial court did not abuse its discretion when it denied the defendant's motion to sever certain counts); People v. Williams, 899 P.2d 306, 313 (Colo. App. 1995) (" The decision to consolidate informations is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion." ).
[¶15] " An abuse of discretion occurs when (1) the joinder caused actual prejudice to the defendant, not merely a difference in trial strategy arising from the joint trial of separate offenses, and (2) the trier of fact was not able to separate the facts and legal principles applicable to each offense." Pasillas-Sanchez, 214 P.3d at 530.
[¶16] Sexual assault offenses may be joined if the evidence of each offense would be admissible in separate trials. See Williams, 899 P.2d at 313.
[¶17] Here, we agree with the trial court that the evidence of Curtis's assaults of the two victims would have been admissible in separate trials under both CRE 404(b) and section 16-10-301. See Adrian v. People, 770 P.2d 1243, 1245 n.2 (Colo. 1989) (" The enactment of section 16-10-301 reflects a policy judgment that in sexual assault cases a need arises to make similar transactions evidence more readily admissible." ); People v. Villa, 240 P.3d 343, 349 (Colo. App. 2009) (noting the legislature's determination that evidence of other sexual acts should be more readily available in sexual assault cases).
[¶18] Specifically, as the trial court held, the evidence at issue related to material facts, including Curtis's intent and the fact that he was engaged in a common plan, scheme, or design, and this evidence was logically relevant because it made it more likely than not that Curtis had committed the crimes charged. This is particularly true here, given Curtis's defenses that he lacked the requisite intent as to S.C. and did not commit the alleged assaults against C.C.
[¶19] For the same reasons, the logical relevance of the evidence at issue was independent of the prohibited intermediate inference that Curtis acted in conformity with his bad
character. And we cannot say that the obvious probative value of the evidence at issue was substantially outweighed by the danger of unfair prejudice.
[¶20] We are not persuaded otherwise by Curtis's reliance on People v. Jones, 313 P.3d 626 (Colo. App. 2011), rev'd, 2013 CO 59, 311 P.3d 274. As Curtis acknowledges in his reply brief, after he filed his opening brief, the supreme court reversed the division's decision in Jones, concluding, as pertinent here, that the other acts evidence at issue satisfied the four-part Spoto test. See Jones, ¶ ¶ 23-29, 311 P.3d at 278-79. In our view, the supreme court's Spoto analysis in Jones supports the trial court's and our conclusions that the evidence of Curtis's assaults of the two victims would have been admissible in separate trials under both CRE 404(b) and section 16-10-301. See id.
[¶21] Nor are we persuaded by Curtis's assertion that joinder was improper because he might have chosen to testify in a separate trial of the charges involving S.C. A defendant is not entitled to separate trials based solely on his or her desire to testify on fewer than all of the charged offenses. Williams, 899 P.2d at 313-14. To prevent joinder, a defendant must show that he or she has both important testimony to give concerning one count and a strong need to refrain from testifying on the other. Id. at 314.
[¶22] Here, Curtis's responses during his interview with the CBI agent presented the intoxication defense that he claims he would have testified to had the charges involving S.C. been tried separately. Moreover, in closing argument, Curtis's counsel urged the jury to rely on the interview because Curtis had " said everything that he wanted to say to [the agent] when [he] talk[ed] to him . . . ." On these facts, we conclude that Curtis has failed to show that he had important testimony to give regarding S.C. Nor do we perceive any prejudice arising from Curtis's decision not to testify. See People v. Garcia, 296 P.3d 285, 290, 2012 COA 79, ¶ 31 (" Even if we assume that Garcia had important testimony about his self-defense and consent defenses, he has not shown he was prejudiced because his right to refrain from testifying on other counts was limited." ).
[¶23] Lastly, we are unpersuaded by Curtis's assertion that the joinder of the charges likely resulted in juror confusion. We perceive nothing in the record that evinces such confusion, and Curtis does not explain why the jurors would have had difficulty keeping the charges separate, particularly given the differences in the circumstances of the assaults and given that the facts here were not complex. See People v. Early, 692 P.2d 1116, 1119 (Colo. App. 1984) (" [D]efendant has failed to outline to this Court any specific inability which the jury had in separating the facts and legal theories applicable to each offense in this relatively uncomplicated series of facts." ). Moreover, as noted above, the trial court instructed the jury to consider each charge separately from all other charges and further instructed the jury that it could not consider the charges against the two victims as propensity evidence. We must presume that the jury followed these instructions unless contrary evidence is shown, and we have seen no such contrary evidence in the record. See People v. Davis, 218 P.3d 718, 729 (Colo. App. 2008).
[¶24] Accordingly, we conclude that the trial court did not abuse its discretion in allowing the prosecution to join the charges ...