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People v. Salas

Court of Appeals of Colorado, First Division

May 18, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Leroy Salas, Defendant-Appellant.

         City and County of Denver District Court No. 13CR1748 Honorable Martin F. Egelhoff, Judge Honorable John W. Madden, IV, Judge.

          Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          Graham and Navarro, JJ., concur.



         ¶ 1 Defendant, Leroy Salas, appeals his judgment of conviction and sentence entered on jury verdicts finding him guilty of sexual assault on a child by one in a position of trust and sexual assault on a child, pattern of abuse. Salas also appeals the trial court's order finding him to be a sexually violent predator (SVP). We affirm in part, vacate in part, and remand for findings.

         I. Background

         ¶ 2 The victim was nine years old when her mother began dating Salas in August 2011. At the time, the victim lived with her mother in Loveland. In September 2011, the three moved in with the victim's grandmother, at her apartment in Denver. In November 2011, Salas and mother moved into a separate apartment together in Denver, but the victim continued to live with grandmother. The victim occasionally visited her mother's apartment.

         ¶ 3 At trial, the victim testified that, during visits, she would sometimes be alone with Salas in the apartment while mother worked. She testified that on occasion, Salas told the victim to lie down on his bed and touched her "stomach and legs" and her "private parts" over her clothing. The prosecutor asked the victim to indicate on a diagram where Salas touched her, and she indicated the buttocks. On another occasion, Salas made the victim touch his penis. The victim did not tell anyone about these incidents because Salas told her not to, and she was scared.

         ¶ 4 In early 2012, mother and Salas broke up, and mother moved to California; the victim followed once she finished school in Denver. There, the victim told a family friend about the assaults. The friend relayed the information to mother and mother called the police. The victim spoke about the incidents with a sheriff and a counselor in California.

         ¶ 5 In November 2012, the victim moved back in with grandmother in Denver. The victim discussed the assaults with a forensic interviewer at the Denver Children's Advocacy Center.

         ¶ 6 At trial, the theory of defense was that the victim fabricated the assaults in order to gain attention, and that Salas could not have sexually assaulted her because he was never alone with her for a sufficient period.

         II. Mistrial

         ¶ 7 Salas first contends that the trial court abused its discretion and violated his rights to due process, a fair trial, and an impartial jury by denying his motion for a mistrial after grandmother testified that Salas had "some type of court proceedings on an alcohol problem, " a nonresponsive answer to a question which, he says, impermissibly referred to prior criminality. We disagree.

         ¶ 8 Grandmother testified that mother and Salas lived with her for a few months before they moved into their own apartment. The court asked grandmother a question posed by the jury: "Was Salas employed during the two- to three-month period and if so how many hours per week?" Grandmother replied that he was employed. Defense counsel questioned grandmother further on whether Salas was employed full-time, to which grandmother responded, "He had - no - how can I say this except to be honest. There was some type of court proceedings on an alcohol problem." Defense counsel moved for a mistrial. The trial court denied the motion and instructed the jury to disregard grandmother's response.

         A. Standard of Review

         ¶ 9 A trial court has broad discretion to grant or deny a mistrial, and its decision will not be disturbed on appeal absent an abuse of discretion and prejudice to the defendant. People v. Santana, 255 P.3d 1126 (Colo. 2011); People v. Abbott, 690 P.2d 1263, 1269 (Colo. 1984). A court abuses its discretion only when inadmissible evidence is likely to have substantially prejudiced the jurors despite the use of any alternative remedies. People v. Lahr, 2013 COA 57, ¶ 23, 316 P.3d 74, 79. A mistrial is "the most drastic of remedies, " and is "only warranted where the prejudice to the accused is too substantial to be remedied by other means." Abbott, 690 P.2d at 1269.

         ¶ 10 Relying on Santana and People v. Chastain, 733 P.2d 1206 (Colo. 1987), Salas asserts that he has presented a constitutional claim because grandmother's statement violated his rights to due process and a fair trial by an impartial jury. However, neither of these cases involved a motion for a mistrial based on a reference to prior criminality. Further, an erroneous reference to a defendant's prior criminality is not an error of constitutional dimension, and we therefore review such claims for nonconstitutional harmless error. See, e.g., People v. Pernell, 2014 COA 157, ¶¶ 26, 42-52, ___ P.3d ___, ___, ___; Lahr, ¶ 23, 316 P.3d at 79; see also People v. Yusem, 210 P.3d 458, 469 n.16 (Colo. 2009) (erroneous admission of prior bad act evidence is not error of constitutional dimension). Therefore, we review Salas' claim for nonconstitutional harmless error.

         B. Applicable Law

         ¶ 11 Salas relies on Goldsberry to assert that "[i]n a criminal trial to a jury, evidence of a defendant's criminal activity, which is unrelated to the offense charged, is inadmissible." People v. Goldsberry, 181 Colo. 406, 409, 509 P.2d 801, 803 (1973). However, Goldsberry also notes that "exceptions to this rule are limited to well defined and special situations where proof of similar offenses will show the defendant's intent, motive, plan, scheme, or design with respect to the crime charged." Id. The supreme court in Goldsberry held that in such situations, the court is required to give instructions limiting the purpose of such evidence, id., and that when reference is made in the presence of the jury to a defendant's unrelated criminal activity, "a mistrial is normally required, " id.

         ¶ 12 However, subsequent cases have limited the holding in Goldsberry: "[A]n ambiguous reference to evidence of a defendant's criminality does not necessitate a new trial." Lahr, ¶ 24, 316 P.3d at 79 (citations omitted); see also People v. Vigil, 718 P.2d 496, 505-06 (Colo. 1986) (police officer's reference to contraband found in defendant's home did not warrant mistrial). In addition, fleeting references to a defendant's alleged criminal history have even less prejudicial impact. Lahr, ¶ 24, 316 P.3d at 79-80; see also Abbott, 690 P.2d at 1269 (A mistrial was unwarranted in part because "the reference to past criminal acts was a single unelicited remark."). The circumstances of each case must be reviewed to determine whether the defendant was prejudiced. Abbott, 690 P.2d at 1269; People v. Moore, 226 P.3d 1076, 1087-88 (Colo.App. 2009).

         ¶ 13 Further, Goldsberry was announced prior to the promulgation of the Colorado Rules of Evidence. While the rules state that evidence of other crimes, wrongs, or acts is not admissible to prove the defendant's character in order to show that he or she acted in conformity therewith, see CRE 404(b); Kaufman v. People, 202 P.3d 542, 552 (Colo. 2009), such evidence can be admissible for the same purposes and under the same conditions enumerated in Goldsberry, see Kaufman, 202 P.3d at 552 (citing CRE 404(b)); People v. Beasley, 43 Colo.App. 488, 492, 608 P.2d 835, 838 (1979) (citing Goldsberry and CRE 404(b)).

         ¶ 14 Generally, the erroneous admission of evidence is remedied by instructing the jurors to disregard it. Vigil v. People, 731 P.2d 713, 716 (Colo. 1987); Lahr, ¶ 25, 316 P.3d at 80. Absent evidence to the contrary, we presume jurors follow such an instruction. Lahr, ¶ 25, 316 P.3d at 80. The supreme court noted in Goldsberry that where the prosecution has intentionally elicited the prejudicial information, evidence of a defendant's guilt is "thin, " and if the proof of at least one of the essential elements of the crime charged is entirely circumstantial, a trial court's cautionary instruction will not suffice. Goldsberry, 181 Colo. at 409, 509 P.2d at 803. However, the supreme court has since clarified that "[t]he circumstances are . . . rare where we . . . will depart from the presumption that a jury follows a court's curative instructions." Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1091 (Colo. 2011); see also People v. Ellis, 30 P.3d 774, 778 (Colo.App. 2001) (acknowledging Goldsberry but concluding that court's instruction was sufficient to cure prejudice); People v. Gillispie, 767 P.2d 778, 780 (Colo.App. 1988) ("[A]n instruction is inadequate only when evidence is so prejudicial that, but for its exposure, the jury might not have found the defendant guilty.").

         C. Analysis

         ¶ 15 Here, grandmother's comment regarding "court proceedings on an alcohol problem" referred ambiguously to possible past criminality. It was a single, fleeting, nonresponsive comment. It did not necessarily reference any criminal behavior on the part of Salas, since "court proceedings" on an "alcohol problem" could also refer to civil and administrative proceedings involving alcohol consumption. See, e.g., § 27-81-112, C.R.S. 2016 (governing involuntary civil commitment of alcoholics); § 42-2-126, C.R.S. 2016 (governing license revocation proceedings based on an administrative determination).

         ¶ 16 The possibility that a reasonable juror inferred Salas' guilt based on grandmother's reference to an "alcohol problem" is highly attenuated. If such a comment had an impact on the jury, it was not "so prejudicial that, but for its exposure, the jury might not have found against the defendant." People v. McNeely, 68 P.3d 540, 542 (Colo.App. 2002) (citation omitted); see also People v. Ned, 923 P.2d 271, 275 (Colo.App. 1996) ("Speculation of ...

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