El Paso County District Court No. 12CR2825 Honorable Barney Iuppa, Judge
Cynthia H. Coffman, Attorney General, Jay C. Fisher, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Lord Law Firm, LLC, Kathleen A. Lord, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, Emmett Andrew Larsen, appeals the judgment of conviction entered on jury verdicts finding him guilty of one count of sexual assault on a child by one in a position of trust–pattern of abuse and one count of sexual assault on a child by one in a position of trust–victim less than fifteen years of age. Defendant asserts that the trial court erred when it refused to poll the jurors regarding their exposure to a printed and online news article released midtrial that included prejudicial information that was not admitted at trial.
¶ 2 We conclude that the court abused its discretion when it declined to poll the jurors by relying solely on the assumption that the jurors followed its admonitions to avoid printed and online news reports. We reverse defendant's convictions and remand the case for a new trial because this error was not harmless beyond a reasonable doubt. We also address the cross-examination issue raised by defendant because it is likely to arise at a new trial.
¶ 3 Victims, A.H. and K.H., moved to Colorado with their mother, S.L., to live with S.L.'s father, defendant. After learning that K.H. was sexually abused previously, defendant put K.H. in therapy. K.H. disclosed to her therapist that she was sexually abused by her uncle, T.J. The therapist reported this abuse to the Department of Human Services (DHS), and a caseworker, Patricia Hartman, was sent to interview A.H. and K.H.
¶ 4 During this interview, K.H. discussed T.J. but did not accuse defendant of any sexual abuse. On the other hand, A.H. revealed that defendant had touched her breasts and vaginal area. Ms. Hartman proceeded to immediately arrange additional interviews with the children. A.H. reiterated during her follow-up interview that defendant had touched her vaginal area once and her breast area twice. K.H. confirmed that defendant had never touched her inappropriately.
¶ 5 At trial, A.H. testified that defendant had touched her breast but did not touch her vaginal area. This testimony was contrary to her prior interviews and a note she wrote stating that defendant had touched her vaginal area. K.H. testified that although she originally said defendant did not touch her, defendant in fact had touched her breast area. In a transcribed phone call between defendant and S.L., defendant admitted that he had touched K.H.'s breast. He clarified, in a later interview with an investigator, that K.H. had placed his hand on her breast.
¶ 6 The jury acquitted defendant of the charge involving the sexual assault of K.H. However, the jury convicted defendant of both charges involving the sexual assault of A.H., and he was sentenced to eight years to life in prison.
II. Jurors' Potential Midtrial Exposure to News Article
¶ 7 Defendant asserts that the court erred by declining to poll the jurors to ask whether they were exposed to an allegedly prejudicial news article released midtrial. We agree.
¶ 8 After the parties presented their evidence, but before the jurors were dismissed for a three-day weekend, the court noted that a newspaper reporter was in the courtroom. The court admonished the jurors to avoid reading or discussing printed or online news articles.
¶ 9 Following that weekend the trial was reconvened, and defense counsel told the court that a printed and online article about the case was released over the weekend. Defense counsel then asked the court to poll the jurors.
¶ 10 The court responded that it had anticipated that an article would be released over the weekend and referred to its admonition given before the three-day weekend. The court did not want to poll the jurors because it believed that if any jurors had read the article they would tell the court. Defense counsel again requested that the court poll the jurors. The court then provided a lengthier explanation:
My problem is once we start down that road, then it may create more interest. And they have cell phones. They have access to the Internet by their phones. It may create more curiosity, and we may be putting gas on the fire rather than putting the fire out. If they are going to abide by my instructions, they will have abided by them already.
The prosecution agreed that the court's admonishment was sufficient.
¶ 11 Although the People agree that defendant preserved the issue of whether the jurors should have been polled, the People assert that any constitutional claims were not preserved. The People contend that because a specific constitutional objection was not made, we should review for plain error.
¶ 12 Constitutional arguments must be explicitly raised before the trial court. People v. Allman, 2012 COA 212, ¶ 13. Explicit arguments alert the court to the defendant's arguments and enable it to make a record. Id.
¶ 13 Defendant asked the court to question the jurors under Harper v. People, 817 P.2d 77 (Colo. 1991). Specifically, he requested "that the jury be polled" and that the court "should engage in the analysis of the Harper case." The People assert that defendant's request to poll the jurors did not preserve defendant's constitutional claims. But defendant's additional argument that the Harper analysis should be applied was a request that the court review the same constitutional claims at issue in Harper. Therefore, ...