Armando M. Perez, Petitioner:
The People of the State of Colorado, Respondent:
Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 08CA1055.
In this appeal, the defendant seeks review of the court of appeals' decision that affirmed the defendant's sexual assault and kidnapping convictions. The trial court allowed 404(b) evidence for the limited purpose of showing Perez's intent to commit sexual assault or unlawful sexual contact upon a child for the count of enticement of a child. On appeal, the court of appeals concluded that the trial court abused its discretion when it allowed the evidence and that the error was not harmless. It then reversed the enticement conviction but affirmed the other two convictions.
The supreme court reverses the remaining convictions and holds that when the trial court erred in admitting 404(b) evidence of the defendant's prior bad acts for a single count, under the facts of this case the error was not harmless as to the convictions on the two remaining counts. The error was not harmless as to those convictions because (1) all of the counts for which the defendant was convicted included a similar element regarding sexual conduct, and (2) the prosecutor's statements and arguments urged the jury to consider the 404(b) evidence beyond its limited scope and implied that it was relevant to all counts.
For Petitioner: Douglas K. Wilson, Public Defender, Dayna Vise, Deputy Public Defender, Denver, Colorado.
For Respondent: Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado.
[¶1] In this appeal, we consider the narrow question of whether the trial court's improper admission of unfairly prejudicial 404(b) evidence offered to establish the defendant's intent in a single count warrants reversing the two remaining convictions of the defendant, Armando M. Perez. The trial court allowed 404(b) evidence for the limited purpose of showing Perez's intent to commit sexual assault or unlawful sexual contact upon a child for the count of enticement of a child. In so doing, it excluded the jury's use of the 404(b) evidence for any element for the two remaining counts--sexual assault on a child and second-degree kidnapping. On appeal, the court of appeals concluded that the trial court abused its discretion when it allowed the evidence and that the error was not harmless. People v. Perez, No. 08CA1055, slip op. at 9 (Colo. App. June 9,
2011). Thus, it reversed the enticement conviction. Id. at 1. The court of appeals, however, affirmed the defendant's sexual assault and kidnapping convictions because it presumed that the jury followed the limiting instructions not to consider the evidence for any element of those two counts. Id. at 10-11.
[¶2] The People did not appeal the court of appeals' ruling that the trial court erred in admitting the 404(b) evidence. We granted Perez's petition for certiorari to determine whether the improper 404(b) evidence admitted at trial for the enticement count warrants reversal of Perez's sexual assault and kidnapping convictions. We reverse the court of appeals and hold that when the trial court abused its discretion in admitting 404(b) evidence of Perez's prior bad acts for a single count, under the facts of this case the error was not harmless as to the convictions on the two remaining counts. We conclude that the error was not harmless as to those convictions because (1) all of the counts for which the defendant was convicted included a similar element regarding sexual conduct, and (2) the prosecutor's statements and arguments urged the jury to consider the 404(b) evidence beyond its limited scope and implied that it was relevant to all counts. We therefore vacate Perez's convictions for sexual assault on a child and second-degree kidnapping and remand to the court of appeals with instructions to return the case to the trial court for further proceedings consistent with this opinion.
I. Facts and Procedural History
[¶3] On February 5, 2007, C.B., a fourteen-year-old girl, and her boyfriend, M.G., went to the movies after school. C.B. told her father where she was going and that she would be back around 6 p.m. After the movie finished, C.B. and M.G. rode a bus to take C.B. home. After they exited the bus, they walked toward C.B.'s home. At that time, a red car pulled up beside them, and the driver, Perez, asked C.B. if she wanted a ride. C.B. refused, and Perez drove away. C.B. and M.G. then went in different directions. After M.G. started walking away to catch the bus to his home, he noticed that the red car turned around and again pulled up beside C.B.
[¶4] At trial, C.B. testified that when the red car pulled up to her a second time, Perez asked if she wanted to smoke marijuana or do cocaine, and she responded that she did not. Perez then threatened C.B. and ordered her into the car. C.B. became scared and got in the passenger seat. Perez drove her to a location unfamiliar to C.B. and sexually assaulted her. He then drove C.B. back to her house and asked if he could meet her again. Before she left, he told her that he was going to wait at the same spot after school for her and that he would bring her a " twenty-or a forty-sack" of marijuana.
[¶5] When C.B. returned home, it was after her curfew. Upon entering the house, she rushed to the bathroom, showered, and then locked herself in her room. She did not speak to anybody in the house for the remainder of the night. M.G. testified that he hid behind a car when the red car pulled up next to C.B. a second time and hurried to C.B.'s father's house after C.B. left in the red car because he was concerned. He said he had never seen the red car before. He then waited with C.B.'s father and stepmother until C.B. returned. When C.B. entered the house, M.G. thought that she seemed surprised to see him because she must have assumed he had gone home. He also testified that he believed that she had some type of drugs in her system.
[¶6] That night, C.B. wrote a letter to one of her friends detailing the incident. She called the friend and told her that she was hoping to ride with the friend to school the next day. The following day, the friend took C.B. to school, and C.B. gave the letter to the friend and told her about the incident. The friend reported what happened to a teacher, and the school contacted the police. When interviewed by the police, C.B. recalled the
license plate number of the car and a description of the car and driver. Later, she identified Perez out of a photo lineup.
[¶7] The police arrested Perez and charged him with (1) sexual assault on a child, (2) second-degree kidnapping with a sexual assault enhancing factor, and (3) enticement of a child. Sexual assault on a child, a class 3 felony, requires proof that Perez subjected C.B. to sexual contact. § 18-3-405, C.R.S. (2014). Second-degree kidnapping with the sexual assault enhancing factor, a class 2 felony, requires proof that Perez knowingly took, enticed, or decoyed C.B. with the intent to keep her from her parents, and that C.B. was the victim of a sexual offense. § 18-3-302. Enticement of a child, a class 4 felony, requires proof that Perez invited or persuaded, or attempted to invite or persuade, C.B. to enter his vehicle with the intent to commit sexual assault or unlawful sexual contact. § 18-3-305. The defense's theory of the case was that C.B. got into Perez's care voluntarily and that any sexual contact was consensual and was done to obtain drugs.
[¶8] Before trial, the People filed a notice of intent to introduce evidence of prior bad acts pursuant to CRE 404(b) and section 16-10-301. The proposed prior bad acts evidence concerned O.D., a forty-two-year-old married woman, who would testify about her encounters with Perez four years before this incident. The People proposed to offer the evidence as " prior sexual assaults."  In the motion, the People argued that O.D.'s testimony would show Perez's knowledge, common plan, or scheme to: (1) choose isolated and vulnerable victims, (2) gain their trust before attempting unwanted sexual contact, and (3) persist in trying to get sexual gratification from the victims despite their objections. The trial court, after reviewing the prosecution's motion and hearing counsels' arguments, including defense objections, found the evidence relevant only to the enticement-of-a-child count for the limited purpose of showing Perez's " intent to commit sexual assault or unlawful sexual contact upon [a] child." The court noted that, even though the encounter with C.B. and the incidents with O.D. were " dissimilar in some ways" and " involve[d] victims of different ages, involve[d] different factual circumstances and different . . . modis operandis [sic]," the prior incidents with O.D. were relevant to the charge of enticement of a child because " Perez had previously gone through similar efforts . . . to initiate contact with another individual he did not otherwise know."
[¶9] Prior to opening statements, the defense renewed its objection to the admission of the 404(b) evidence and sought further clarification as to its limited purpose at trial because the defense wanted to know the extent to which the prosecutor could use the evidence in his opening statements. The prosecutor responded by saying that he did not " remember any limitation as to any count" and that he was going to use the evidence in his opening statement to show a common scheme or design by Perez to isolate females for sexual purposes. The court reminded counsel that it limited the evidence to the enticement-of-a-child count, denied the defense's motion to reconsider its ruling on the admissibility of the evidence, and said that it would listen to the recording of the motion's hearing and " clarify the ruling" during trial. The court then elaborated that, although it would provide a limiting instruction before O.D. testified, it would not provide a limiting instruction for the evidence prior to opening statements.
[¶10] During opening statements, the prosecutor asserted that Perez used what he learned from the incidents with O.D. to victimize C.B.:
[W]hat you . . . will learn, ladies and gentlemen, is that this defendant, on February 5th of 2007, was applying the lessons that he had learned in 2003. In 2003, [Perez] attacked a thirty-eight-year-old woman for sexual purposes. . . . She was able to prevent any unwanted sexual contact from happening. She was able to maintain spaces between herself and [Perez].
But on February 5th, 2007, he took those lessons and he applied them to [C.B.] and he made sure that she was alone, where no one--where she could not get away, ...