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People v. Pernell

Court of Appeals of Colorado, Third Division

November 20, 2014

The People of the State of Colorado, Plaintiff-Appellee,
v.
Christopher Alexander Pernell, Defendant-Appellant.

City and County of Denver District Court No. 10CR3429 Honorable William D. Robbins, Judge.

John W. Suthers, Attorney General, Emmy A. Langley, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Rebecca R. Freyre, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

DAILEY, JUDGE.

¶ 1 Defendant, Christopher Alexander Pernell, appeals the judgments of conviction entered on jury verdicts finding him guilty of violation of a restraining order, first degree burglary, menacing (two counts), second degree kidnapping, sexual assault, and commission of a violent crime (three counts). We affirm.

I. Background

¶ 2 In violation of a restraining order, defendant went to his ex-wife's home one evening while she and her boyfriend were inside. According to the ex-wife and boyfriend,

• when the ex-wife unlocked the front door, defendant pushed it open, knocking her to the floor;
• defendant removed a gun from a bag he was carrying, held it to the boyfriend's temple, and said "bam" or "bang";
• defendant ordered the couple to sit at the dining room table, where, while acting "agitated" and "jittery, " he questioned the boyfriend about his relationship with the ex-wife; and,
• defendant eventually calmed down and agreed to let the boyfriend leave the house.

¶ 3 According to the ex-wife,

• defendant ordered her into the bedroom at gunpoint, put the gun on the dresser, had her remove her clothes, pushed her down on the bed, and had sexual intercourse with her over her objection;
• when defendant got off her, she took the gun and ran, naked, to the front door, where she was caught by defendant; and,
• defendant took the gun, pointed it at her head, and left after she promised not to call the police.

¶ 4 The next morning, after spending the rest of the night at her boyfriend's house and driving back to her own house, the ex-wife reported the incident to the police.

¶ 5 At trial, the prosecution introduced, in addition to the testimony of the ex-wife and the boyfriend, a police recording and transcript of a phone conversation between defendant and the ex-wife the day after the incident. After the ex-wife stated that she was afraid of defendant because "[he] pointed a gun at [her], [he threatened to kill [her]" and "made [her] have sex with [him], " defendant responded, "I know, I know. That's the reason I got rid of [the gun] and I, I promise you that my word that that is done." When the ex-wife further said that defendant "raped" her, despite her begging him not to "do it, " he stated, "Um, I, I'm sorry. I wasn't in my right frame of mind."

¶ 6 The prosecution also introduced evidence of defendant's prior acts toward his ex-wife:

• He accused her of cheating on him and forced his hands down her pants during a Christmas dinner with their children;
• He came to her house, questioned her about having a relationship with another man, and followed her to a meeting with her friend at Starbucks;
• He sent her a sexually suggestive e-mail that prompted her to get the restraining order, and;
• He came to her house on a second occasion, asked her where she was the previous night, and accused her of leaving their children alone to go see another man.

¶ 7 Defendant did not testify on his own behalf or present any evidence. His attorney argued that, although defendant went to the ex-wife's home, he did not bring a gun and he had consensual sex with his ex-wife. Counsel asserted that, afterwards, she fabricated the incident with help from the boyfriend to keep him away from defendant's and his ex-wife's two children. To support this argument, counsel pointed to the fact that the boyfriend never contacted police, and that the ex-wife had waited until the next morning to report the assault. Counsel argued that she attempted to "make the story look more believable" by changing from her skirt into pants before making the report, which she did because "[w]hen you report rape, it would be better to wear pants than a skirt."

¶ 8 Additionally, defendant's attorney attacked the victim's credibility by arguing that the ex-wife had looked down rather than at the jury for the majority of her testimony and that both she and her boyfriend had given "evasive" testimony.

¶ 9 The jury convicted defendant as charged and the trial court sentenced him to a controlling term of fifty-eight years to life imprisonment in the custody of the Department of Corrections.

II. Challenge for Cause

¶ 10 Defendant contends that the trial court erred in granting the prosecution's challenge for cause to prospective Juror H. We disagree.

¶ 11 Section 16-10-103(1)(j), C.R.S. 2014, and Crim. P. 24(b)(1)(X) require disqualification of a juror if his or her state of mind manifests a bias for or against either side, unless the court is satisfied that the juror will render an impartial verdict based solely upon the evidence and instructions of the court. See Morrison v. People, 19 P.3d 668, 672 (Colo. 2000); People v. Shreck, 107 P.3d 1048, 1057 (Colo.App. 2004).

¶ 12 We give great deference to the trial court's determination of a challenge for cause because such decisions turn on an assessment of the potential juror's credibility, demeanor, and sincerity in explaining his or her state of mind. Because the trial court is in a better position to evaluate these factors than a reviewing court, we will overturn a trial court's decision concerning a challenge for cause only upon an affirmative showing by the defendant that the court abused its discretion. People v. Wilson, 2014 COA 114, ¶ 10.

¶ 13 A trial court abuses its discretion in this context only if there is no evidence in the record to support its decision. People v. Richardson, 58 P.3d 1039, 1042 (Colo.App. 2002); see also Carrillo v. People, 974 P.2d 478, 486 (Colo. 1999) (an appellate court must examine the entire voir dire of the prospective juror).

¶ 14 Here, prospective Juror H indicated that she had doubts about her ability to be fair and impartial because her son had been accused of burglary in connection with a domestic violence incident, stating:

• Her son's case "possibly could affect [her] thought process throughout it all";
• "[A]fter being with [her son] through the whole legalities of it all, the repercussions of his act, it's — it would be hard ...

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