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People v. Penn

Supreme Court of Colorado, En Banc

May 16, 2016

The People of the State of Colorado, Petitioner
v.
Brian Penn, Respondent

Certiorari to the District Court Boulder County District Court Case No. 14CV30101

Attorneys for Petitioner: Stanley L. Garnett, District Attorney, Twentieth Judicial District Sean P. Finn, Chief Appellate Deputy John F. Peters, Appellate Deputy District Attorney Boulder, Colorado

Attorneys for Respondent: The Noble Law Firm, LLC Antony Noble Tara Jorfald Lakewood, Colorado

OPINION

MÁRQUEZ JUSTICE.

¶1 A county court jury convicted Brian Penn of unlawful sexual contact, a class 1 misdemeanor, in violation of section 18-3-404(1)(a), C.R.S. (2015). On appeal to the district court, Penn argued that the county court committed reversible plain error by allowing an investigating officer to testify that he "had reason to arrest the defendant for a crime that had been committed." The district court agreed, reasoning that the officer's statement was both an impermissible legal conclusion that probable cause existed to arrest Penn and an improper opinion regarding the victim's credibility. The district court reversed Penn's conviction and remanded the case for a new trial. The People filed a motion for reconsideration, which the district court denied.

¶2 The People subsequently filed a petition for certiorari review. Penn moved to dismiss the petition as untimely under Colorado Appellate Rule 52(a) because it was filed more than forty-two days after the district court issued its order reversing Penn's conviction. See C.A.R. 52(a) (requiring a petition for writ of certiorari to review a judgment of a district court on appeal from a county court to be filed "not later than 42 days after the rendition of the district court's final judgment"). Penn argued that nothing in statute or rule expressly authorizes a party to move for reconsideration of a district court's ruling on appeal from a county court or tolls the forty-two-day filing period under C.A.R. 52(a) pending resolution of such a motion.

¶3 We granted the People's petition for writ of certiorari to review the district court's order reversing Penn's conviction and added the issue of whether a motion to reconsider a district court order reversing a county court judgment extends the forty-two-day period to petition this court for writ of certiorari.[1]

¶4 We conclude that the timeliness of the People's petition for certiorari review is governed by our decision in City of Aurora v. Rhodes, 689 P.2d 603 (Colo. 1984). In that case, we held that a party may file a petition for rehearing of a district court's review of a municipal court judgment. Where such a petition for rehearing is timely filed, the district court's judgment does not become final for purposes of the filing period for certiorari review under C.A.R. 52(a) until the district court denies the petition for rehearing. Id. at 609. Because our reasoning in Rhodes applies with equal force to a district court's review of a county court judgment, we now hold, consistent with Rhodes, that a party may file a petition for rehearing of a district court's review of a county court judgment within fourteen days of the district court's ruling unless that time is shortened or extended by order, or unless the district court by express order disallows the filing of the petition. Where a petition for rehearing is timely filed in the district court, the district court judgment does not become final for purposes of the forty-two-day period to file a petition for writ of certiorari under C.A.R. 52(a) until the district court denies the petition for rehearing. Here, the People filed their petition for certiorari review within forty-two days of the district court's denial of their motion for reconsideration, and therefore the petition was timely.

¶5 We further hold that the county court's admission of the investigating officer's testimony was not reversible plain error. Accordingly, we reverse the judgment of the district court and remand for reinstatement of the judgment of conviction.

I. Facts and Procedural History

¶6 The People charged Brian Penn with one count of unlawful sexual contact after K.H., a dental assistant, alleged that during a routine dental cleaning, Penn made several sexually charged comments, grabbed K.H.'s arm to look at her tattoo, and touched her breast without her consent. K.H. reported Penn's behavior to her supervising dentist, who asked Penn to leave and counseled K.H. to contact the police. K.H. called the Boulder Police Department the next day.

¶7 At Penn's trial in Boulder County Court, the People called Officer Babiak to testify about the steps he took as part of his investigation. The officer testified that he spoke with K.H. and that he also called Penn. When asked why he called Penn, Officer Babiak responded, "I had reason to arrest [Penn] for a crime that had been committed." The prosecutor asked, "And what crime was that?" The officer answered, "Unlawful sexual contact." Defense counsel did not object to this exchange, and neither party mentioned the officer's statements in closing argument. Following deliberations, the jury convicted Penn as charged.

¶8 Penn appealed his conviction to Boulder County District Court, arguing, inter alia, that the county court committed plain error by allowing Officer Babiak to testify that he had "reason to arrest" Penn for unlawful sexual contact. Penn argued that this testimony improperly insinuated that the People had additional evidence implicating Penn and usurped the jury's function to determine guilt. Penn also contended that the testimony amounted to a legal opinion because the officer would have "reason to arrest" Penn only if he had probable cause to believe that Penn had committed the crime.

¶9 On August 26, 2014, the district court issued an order reversing Penn's conviction and remanding the case for a new trial. The district court agreed with Penn that the county court erred by allowing Officer Babiak to testify that he had "reason to arrest" Penn for unlawful sexual contact. The court reasoned that the officer's statement constituted a legal conclusion that he had probable cause to make the arrest. The court also expressed concern that the statement "could imply that [Officer Babiak] found K.H. credible." Because K.H.'s testimony was the only evidence that Penn committed unlawful sexual contact, the court could not "say with confidence that the error did not contribute to Penn's conviction."

¶10 On September 10, 2014, fourteen days after the district court's judgment, the People filed a motion for reconsideration, arguing that the officer's statement that he had "reason to arrest" Penn did not amount to a legal conclusion, and that any error did not require reversal because it did not so undermine the fundamental fairness of the proceeding as to cast serious doubt on the reliability of the judgment. The district court denied the motion for reconsideration on October 20. Emphasizing that its ruling was based on the unique facts of the case, the court clarified that its "primary concern was with how [Officer Babiak's] statement could be construed as a comment on [K.H's] credibility" and noted that K.H.'s testimony was the only evidence that Penn committed the crime.

¶11 The People then filed a petition for writ of certiorari with this court on December 1, 2014, which was forty-two days after the district court's denial of the People's motion for reconsideration, but more than three months after the district court's August 26 order reversing Penn's conviction. Penn moved to dismiss the People's petition as untimely under C.A.R. 52(a) because it was filed more than forty-two days after the district court's order reversing his conviction. The People responded that the forty-two-day deadline under C.A.R. 52(a) was extended by their timely motion for reconsideration.

¶12 This court granted the People's petition for certiorari review, adding the issue of whether a motion to reconsider a district court order reversing a county court judgment extends the period under C.A.R. 52(a) to file a petition for writ of certiorari.

II. Analysis

¶13 We first address the timeliness of the People's petition for writ of certiorari. Applying our decision in City of Aurora v. Rhodes, 689 P.2d 603 (Colo. 1984), to this case, we conclude that the People's motion for reconsideration of the district court's ruling extended the filing period under C.A.R. 52(a) to seek certiorari review, and therefore, the People's petition for writ of certiorari was timely filed. We then turn to the merits of the case and conclude that the county court did not commit reversible plain error by admitting Officer Babiak's testimony. Accordingly, we reverse the judgment of the district court and remand for reinstatement of Penn's conviction.

A. Timeliness of the People's Petition for Writ of Certiorari Under C.A.R. 52(a)

¶14 Section 13-6-310(1), C.R.S. (2015), provides that appeals from final judgments of the county courts shall be taken to the district court. Further discretionary review by the supreme court may be made only upon writ of certiorari. § 13-6-310(4). Similarly, section 16-2-114(1), C.R.S. (2015), and Crim. P. 37(a) provide that a county court judgment in a criminal action may be appealed to the district court; a party seeking further review by this court must file a petition for writ of certiorari, § 16-2-114(8); Crim. P. 37(h).

ΒΆ15 C.A.R. 52(a), in turn, requires a petition for writ of certiorari to review a judgment of the district court to be filed within forty-two days after ...


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