Opinion
Alexander Hunter, Dist. Atty. for the Twentieth Judicial Dist., Daniel C. Hale, Deputy Dist. Atty. for the Twentieth Judicial Dist., Boulder, for plaintiff-appellee.
Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Trial Deputy Public Defender, Craig L. Truman, Deputy State Public Defender, Denver, for defendant-appellant.
BERMAN, Judge.
Defendant, Alfred J. Carr, appeals his conviction for rape, C.R.S.1963, 40--3--401 (1971 Perm.Supp.). We affirm.
Now s 18--3--401, C.R.S.1973.
The evidence adduced at trial shows that at about 7:00 in the evening, the victim, age 13, along with another young girl, age 15, and a male companion, accepted a ride with the defendant, age 31, and accompanied him to Boulder and the nearby mountains; that upon arriving in the mountains, the defendant stopped the vehicle and engaged in sexual intercourse with the victim, and upon their return to Denver the victim notified police, and that the defendant was arrested and charged. The defendant was found guilty by the jury of rape and sentenced to five to seven years in the state penitentiary.
Defendant first asserts that the trial court erred by refusing to declare a mistrial as a result of the following question, answer, and objection:
'Q. (By the Prosecuting Attorney): When you left Denver did you think that's what you were going to be doing?
A. No, because he was talking all nice and everything and telling us about that car and everything. He wasn't saying nothing and he told Frank that he had just got out of jail.
(Defense Counsel): Excuse me, Your Honor. I'm going to object to what he told Frank.'
A reference made by a witness to the defendants prior incarceration on other changes is not per se prejudicial requiring witness' reference to the defenda new trial. People v. Lowe, 519 P.2d 344. Evaluating the facts presented here, the witness' reference to defendants prior incarceration was nonresponsive to the question asked and, in addition, was not a direct statement based on the witness' own knowledge. The reference made was inadvertent, as even defendant's counsel conceded in his motion for a new trial, and no further references were made to previous arrests or incarceration. Under such circumstances, the statement was not so prejudicial that the only way in which its effect could be remedied was by a mistrial. People v. Anderson, Colo., 518 P.2d 828. Hence, since the jury was properly cautioned to disregard the witness' answer, there was no abuse of discretion in the denial of the motion for a mistrial.
Secondly, defendant contends that the trial court committed reversible error by refusing his tendered instruction to the effect that charges of rape and sexual assault on a child are easily made and difficult to disprove, and his tendered instruction that testimony of children of tender years is subject to some doubt and must be carefully examined.
See Colo.Sess.Laws 1975, ch. _ _, s 18--3--408 (H.B. 1042), which provides that a 'jury shall not be instructed to examine with caution the testimony of the victim solely because of the nature of the charge . . .'
Both of the instructions requested by the defendant are cautionary and therefore whether they will be given is within the trial court's sound discretion. People v. Sanchez, Colo., 520 P.2d 751; Land v. People, 171 Colo. 114, 465 P.2d 124. Here, substantial medical evidence indicated that the victim had in fact had sexual intercourse within a thirty-hour period during which the assault was alleged to have occurred. Also, the trial court instructed the jury generally on the credibility of witnesses, the burden of proof, and reasonable doubt. Under these circumstances, we find no abuse in the trial court's refusal of defendant's tendered instructions.
Judgment affirmed.
COYTE and ENOCH, JJ., concur.