Opinion
No. 04CA0179.
June 30, 2005.
Douglas County District Court No. 02CR44, Honorable Paul A. King, Judge.
Defendant, Kristina Taylor, appeals the judgment of conviction entered upon jury verdicts finding her guilty of forgery and attempting to influence a public servant by unlawful means. We affirm.
JUDGMENT AFFIRMED.
John W. Suthers, Attorney General, Denver, Colorado; Kathleen M. Byrne, Special Assistant Attorney General, Boulder, Colorado, for Plaintiff-Appellee.
David S. Kaplan, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
I.
Defendant first argues that the evidence is insufficient to support the jury's verdicts. We disagree.
As relevant here:
(1) A person commits forgery, if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
. . .
(c) A[n] . . . instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status. . . .
Section 18-5-102, C.R.S. 2004.
The offense of attempting to influence a public servant by unlawful means is defined as follows:
Any person who attempts to influence any public servant by means of deceit . . . with the intent thereby to alter or affect the public servant's decision, vote, opinion, or action concerning any matter which is to be considered or performed by him or the agency or body of which he is a member, commits a class 4 felony.
Section 18-8-306, C.R.S. 2004.
In assessing the sufficiency of the evidence supporting a guilty verdict, a reviewing court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. In applying this standard, we must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence. Kogan v. People, 756 P.2d 945 (Colo. 1988).
Here, the evidence, when viewed according to the foregoing standards, establishes the following facts.
Pursuant to the conditions of a deferred judgment and sentence in an unrelated case, defendant was ordered to perform eighty hours of useful public service (UPS). A county caseworker was assigned to supervise defendant's performance of this obligation.
Defendant met with the caseworker and proposed performing her UPS hours at a local church. The caseworker provided defendant with an enrollment form and a time sheet for recording the dates and hours when defendant performed UPS, both of which were to be completed by the church and returned to the agency for verification.
A few months later, the agency received both of defendant's forms in the mail. The enrollment form was signed by defendant and by a person identified as the "pastor" of the church. The time sheet form, which was also signed by the "pastor," indicated defendant had done an exemplary job working in "the church food bank."
A caseworker contacted the church to verify the information contained in the two forms and discovered that the "pastor" was neither the pastor nor any other employee of the church. Based on this information, the caseworker began an investigation that culminated in these charges being filed against defendant.
At trial, the pastor testified that the church only allowed persons to perform court-ordered UPS in its food and clothing bank. He further testified that he had not signed either of the two forms defendant submitted to the county agency and that he had met defendant for the first time approximately one month after the forgery investigation had begun. At that meeting, defendant had told the pastor that she had performed her UPS for the church by collecting donations in front of a supermarket. Defendant also stated that she had done this solicitation work pursuant to the directions of a woman who had identified herself as an administrative assistant at the church.
Several months later, defendant returned to the church, reviewed a directory with photographs of church members, and identified the church custodian as the person who, along with a woman named "Deborah," had driven her to the supermarket where defendant claimed to have collected donations.
The pastor testified that, during one of his two meetings with defendant, she told him that Deborah had filled out the two UPS forms and signed them. He further testified that he knew the church custodian was involved in a relationship with a woman named Deborah.
At trial, a woman named Deborah, who had once lived with the church custodian, testified that she had never met defendant. The witness also testified that she had never had any involvement in supervising persons who were performing UPS.
Defendant testified and identified Deborah as the woman from the church who had monitored the supermarket fundraising she had performed to fulfill her UPS requirement. Defendant further testified that she had provided the two UPS forms to Deborah and that, once she had completed her eighty hours of UPS, Deborah had told her she would submit the forms to the county agency. Defendant admitted that she had received a copy of the completed time sheet in the mail and had read the portion incorrectly indicating that she had performed her UPS in the church food bank.
At the outset, we reject defendant's argument that, in closing argument, the prosecutor conceded the insufficiency of the evidence as to the forgery charge by stating that there was no evidence indicating defendant was the person who had completed the forms. When read in context, it is apparent the prosecutor made this statement to emphasize, correctly, that a person acting with the requisite intent can commit forgery by uttering a false written instrument prepared by another.
We also reject defendant's suggestion that the UPS forms do not fall within the ambit of the forgery statute. According to defendant, the forms were not "instrument[s] which . . . evidence[d], create[d], transfer[ed], terminate[d], or otherwise affect[ed] a legal right, interest, obligation, or status." However, it is beyond dispute that defendant's personal liberty interest constituted a legal right which clearly was subject to termination if she failed to perform the eighty hours of UPS that were documented in the two forms submitted to the county agency. Accordingly, this argument is without merit.
Turning to an assessment of the evidence as a whole, we acknowledge that the proof of defendant's guilt was circumstantial and that there was evidence which, if believed, would not support a conviction. However, as to the sufficiency of the evidence, the law makes no distinction between direct and circumstantial evidence. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973). This case was a classic credibility contest, and the jury concluded that Deborah was a more credible witness than defendant. As an appellate court, it is not our role to reweigh the evidence or judge the credibility of witnesses. People v. Rivas, 77 P.3d 882 (Colo.App. 2003).
We reject defendant's suggestion that the prosecution was obligated to prove that she mailed the forms to the county agency or that she explicitly directed someone else to mail the forms on her behalf. Neither the forgery statute nor the statute criminalizing the improper influence of a public servant contains such a requirement.
In this case, there is sufficient evidence in the record to support the jury's finding that defendant caused a false written instrument to be delivered to a public servant with the intent of altering the public servant's decision relating to the termination of defendant's liberty interest. Accordingly, we conclude the evidence is sufficient to support the jury's verdicts.
II.
Defendant next argues that the trial court committed reversible error by allowing an investigator from the district attorney's office to comment on the strength of the evidence he had gathered and permitting him to explain why he did not obtain a handwriting analysis. We disagree.
"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." CRE 401. If testimony is admissible under CRE 401, the court must then determine whether the probative value of that evidence is substantially outweighed by the danger of unfair prejudice. CRE 403.
Trial courts have considerable discretion concerning the admissibility of evidence and the determination of its relevancy and probative value. In reviewing a trial court's ruling on admissibility of evidence under CRE 403, we must afford the evidence the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected. People v. Johnson, 74 P.3d 349 (Colo.App. 2002). To constitute an abuse of discretion, the trial court's evidentiary ruling must be shown to be manifestly arbitrary, unreasonable, or unfair. People v. Martinez, 83 P.3d 1174 (Colo.App. 2003).
The concept of "opening the door" is a court-promulgated curative measure that is not easily defined. The concept represents an effort by courts to prevent one party from gaining an unfair advantage by presenting evidence that, without being placed in context, creates an incorrect or misleading impression. People v. Melillo, 25 P.3d 769 (Colo. 2001).
Here, during cross-examination of the district attorney's investigator, defendant asked several questions establishing that the investigator had not conducted a handwriting analysis of the documents. In response, the investigator stated he felt there was no need for such a comparison because "there was enough evidence to proceed." Defendant did not object to this response.
During redirect examination, the investigator testified, over defendant's objections, that he had not conducted the handwriting comparison because Deborah "had been very consistent" in her statements to him, he felt he had done "everything" he needed "to file the case and to proceed," and he concluded he "had plenty of evidence to proceed."
In light of defendant's attack on the investigator's competence, we conclude the trial court acted within its discretion by allowing the prosecution to elicit the investigator's explanation of why and how he had limited his investigation in the manner that he did.
Moreover, the jury instructions in this case informed the jurors that they had the exclusive authority to determine the strength of the prosecution's evidence, and we have no reason to believe the investigator's testimony caused the jurors to abandon this responsibility. See People v. Harlan, 8 P.3d 448 (Colo. 2000) (absent evidence to the contrary, an appellate court must presume that a jury follows the trial court's instructions).
Finally, because deceitfulness and consistency are not mutually exclusive qualities, we reject defendant's claim that the investigator directly commented on the credibility of another witness.
Accordingly, as we perceive no error in the trial court's evidentiary rulings, we also reject defendant's related claim that the trial court violated her rights to due process. See People v. Watson, 53 P.3d 707 (Colo.App. 2001).
III.
Finally, defendant contends her convictions must be reversed because the prosecutor improperly introduced, and relied upon in closing argument, evidence showing that defendant exercised her right to remain silent and not incriminate herself. We are not persuaded.
A.
The Fifth Amendment, as applied to the states through the Fourteenth Amendment, is not violated by the use of pre-arrest silence to impeach the credibility of a criminal defendant's trial testimony. The rationale for this rule is that, by deciding to testify, a defendant knowingly subjects himself or herself to cross-examination conducted by the opposing party in furtherance of the truth-finding function of the criminal trial. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).
Under Jenkins, state courts are free to formulate evidentiary rules governing the admissibility of pre-arrest silence, but our supreme court has not had occasion to do so. Therefore, questions concerning the admissibility of such evidence are governed by the relevancy test of CRE 401 and the balancing test of CRE 403.
Slightly different constitutional principles govern the use, for impeachment purposes, of a defendant's post-arrest silence. When a defendant takes the stand, the use for impeachment purposes of silence that occurred after the defendant had received warnings pursuant toMiranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), violates the Due Process Clause of the Fourteenth Amendment because an assurance that silence will carry no penalty is implicit in the Miranda warnings. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). However, no due process violation results when a defendant is cross-examined about post-arrest silence if the defendant did not receive any Miranda warnings before becoming silent, because in such circumstances it cannot be said that government action induced the defendant's silence. Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982).
Under Fletcher, the extent to which post-arrest silence can be used to impeach a defendant's testimony is a matter left to state courts for resolution under state rules of evidence. Cox v. People, 735 P.2d 153, 158 n. 9 (Colo. 1987). And, here again, because our supreme court has not had occasion to address this issue, its admissibility is governed by CRE 401 and 403.
In this case, defendant testified that she contacted the church as soon as the county agency notified her that there was a problem with the documentation of her UPS hours.
During cross-examination, the prosecutor asked defendant whether, when she first discovered that the UPS time sheet incorrectly indicated she had worked in the church's food bank, she had contacted law enforcement authorities, the county agency that was supervising her performance of the UPS hours, or the church. Defense counsel did not object to the question, and defendant replied that she had not reported the inaccuracy at that time.
The prosecutor then asked defendant whether, once she became aware that the charges in this case had been filed and she had gone to the church and informed the pastor that she had performed the UPS by soliciting donations under the direction of Deborah, she had then also conveyed this same information to law enforcement authorities and the county agency that was supervising her performance of the UPS hours. Defendant testified she had never contacted law enforcement authorities or the county agency.
During rebuttal closing argument, the prosecutor reminded the jury of the evidence indicating that defendant had not reported the discrepancy in the UPS form when she first became aware of it. Defense counsel objected, citing the Fifth Amendment privilege against self-incrimination. The trial court overruled defendant's objection. The prosecutor then argued that, after the charges in this case were filed, defendant had not reported the discrepancy in the paperwork to the county agency. The trial court again overruled defendant's objection.
The prosecutor next argued that defendant did not contact law enforcement authorities when the charges were filed because she needed additional time to concoct the false story which she later told to the pastor. The prosecutor also described this period of inaction as a "smoking gun" and "direct evidence."
We begin our analysis by ascertaining the applicable standard of review. Arguably, defendant's claim could be bifurcated and analyzed under different standards of review because defendant only objected to the prosecutor's closing argument, and not to the introduction of the evidence to which the prosecutor referred. However, for purposes of conducting our review, we shall construe defendant's objections during closing argument as sufficient to encompass the evidentiary component of her claim.
Framed as such, the dispositive question before us is whether, in light of defendant's direct testimony, it was error for the prosecution to introduce through cross-examination, and comment upon in closing argument, evidence showing that defendant did not contact the police or the county agency, either before or after the charges were filed, and report that she had performed her UPS by doing collection work. Under the circumstances of this case, we conclude it was not.
Defendant does not assert that she was ever advised pursuant to Miranda v. Arizona, supra, by her county caseworker, a police officer, or any other representative of a law enforcement agency. Our own review of the record does not reveal any evidence suggesting that she ever received such an advisement. Accordingly, we conclude there was no constitutional error in the admission of the evidence for impeachment purposes. See Fletcher v. Weir, supra; Jenkins v. Anderson, supra.
We turn next to the question of whether the trial court abused its discretion by admitting this evidence. Defendant raised the issue of her willingness to speak with the authorities at the beginning of the trial. During opening statement, defense counsel faulted the county agency that had supervised defendant's performance of the UPS for having referred the matter to the district attorney's office without first having given defendant an opportunity to explain what had occurred. Defense counsel also stated that defendant "did her own investigation" as soon as she became aware there was a problem.
In her direct testimony, defendant admitted that she had received in the mail the UPS form that contained the inaccurate information. Defendant further testified that she did not contact the pastor until she learned the county agency was disputing her completion of the UPS. In light of this testimony, we conclude the prosecutor's cross-examination asking defendant why she did not also report the inaccuracy in the UPS form to the county agency or to law enforcement officials was a proper inquiry designed to elicit probative evidence that was not unfairly prejudicial to defendant.
Likewise, because defendant testified on direct examination that, after she became aware charges had been filed, she met with the pastor a second time to try to identify the persons who had supervised her performance of the UPS, the prosecutor's cross-examination asking defendant why she had not also brought this same information to the attention of the police or the county agency supervising her UPS was a proper inquiry designed to elicit probative evidence that was not unfairly prejudicial to defendant.
Accordingly, we find no error in the admission of this evidence.
B.
The lone remaining issue is whether the prosecutor's references to the foregoing evidence during closing argument were improper. We conclude that they were not.
The scope of final argument rests in the discretion of the trial court, and its rulings will not be disturbed on review absent an abuse of discretion resulting in prejudice and a denial of justice. People v. Valdez, 725 P.2d 29 (Colo.App. 1986).
A prosecutor's comments must be evaluated in the context of the argument as a whole. People v. Kerber, 64 P.3d 930 (Colo.App. 2002).
Here, when the prosecutor's rebuttal remarks are read in context, the statements describing defendant's failure to contact the police or the county agency can be understood as attacks upon the credibility of defendant's trial testimony. Thus, we perceive no abuse of discretion, nor any due process violation, in the trial court's rulings allowing this line of argument. See McGrone v. State, 807 So. 2d 1232 (Miss. 2002); see also People v. Richardson, 58 P.3d 1039 (Colo.App. 2002).
The judgment is affirmed.
JUDGE NIETO and JUDGE DAILEY concur.