Summary
discussing foundation for admitting prior consistent statements under CRE 801(d)(B)
Summary of this case from People v. MosleyOpinion
No. 94CA0565
Decided December 21, 1995 Petition for Rehearing DENIED January 25, 1996 Petition for Writ of Certiorari DENIED September 3, 1996
Appeal from the District Court of Morgan County, Honorable Joseph J. Weatherby, Judge, No. 93CR109.
JUDGMENT AFFIRMED
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Laurie A. Booras, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Defendant, Antonio Segura, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault on a child, third degree sexual assault, two counts of felony menacing, and two counts of second degree criminal trespass. He contends that the trial court committed reversible error in admitting prior statements of the victims and that the evidence was insufficient to support the verdicts of guilt on the two felony menacing counts. We affirm.
I.
Defendant contends the trial court erred in allowing the prosecution to introduce prior statements of the two victims. We perceive no error.
Both victims testified at trial that defendant touched one victim's breast and buttocks. In cross-examination, defense counsel elicited testimony from the victims that they had spoken to each other the day after the incident in question before filing statements with the police. In its rebuttal case, the prosecution presented the testimony of the investigating officer that both victims had reported consistent statements to him on the evening of the incident. Similar statements were included in the victims' written statements to police.
A.
Under CRE 801(d)(1)(B), a statement is not hearsay if the declarant testifies at trial and is subject to cross-examination, the statement is consistent with the declarant's testimony, and it is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. See People v. Page, ___ P.2d ___ (Colo.App. No. 93CA1367, March 2, 1995).
In Tome v. United States, ___ U.S. ___, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995), the United States Supreme Court held that Fed.R. Evid. 801(d)(1)(B), which is essentially identical to CRE 801(d)(1)(B), permits the introduction of a declarant's out-of-court statements as nonhearsay evidence only if those statements were made before the alleged fabrication or improper influence or motive.
The Court in Tome reasoned that a consistent statement predating the motive for fabrication is a "square rebuttal" of the charge that the testimony was contrived as a consequence of that motive. Tome v. United States, supra, ___ U.S. at ___, 115 S.Ct. at 701, 130 L.Ed.2d at 583. By contrast, prior consistent statements carry little rebuttal force when most other types of impeachment are involved. Furthermore, if the rule were to permit the introduction of prior statements, even though not made before the alleged fabrication, the emphasis of the trial could shift to the out-of-court statements rather than those made in court under oath. Finally, its interpretation was consistent with the common law that had developed before the rule's adoption. See Tome v. United States, supra.
Case law interpreting an essentially identical federal rule is instructive, see State Farm Mutual Automobile Insurance Co. v. Parrish, 899 P.2d 285 (Colo.App. 1994), and we find the Supreme Court's analysis in Tome persuasive. We therefore hold that CRE 801(d)(1)(B) encompasses only those statements made by the victims prior to the opportunity to fabricate similar stories allegedly arose. But see Tome v. United States, supra (Breyer, J., dissenting); J. Quinn, Hearsay in Criminal Cases Under The Colorado Rules of Evidence: An Overview, 50 U. Colo. L. Rev. 277 (1978-79).
To the extent that the decision in People v. Koon, 724 P.2d 1367 (Colo.App. 1986) is inconsistent with our conclusion, we decline to follow it.
B.
Defendant argues that no prior inconsistent statements had been admitted and that the statements were improperly admitted to counter his evidence of the victims' poor reputations for truthfulness, not to rebut any charge of recent fabrication. He therefore asserts the statements were not admissible under CRE 801(d)(1)(B).
Defendant's argument is initially premised on the incorrect assumption that prior consistent statements may be admitted only to rebut an express or implied charge of recent fabrication or improper influence or motive that is based on prior inconsistent statements. The rule contains no such limitation. See People v. Page, supra; People v. Ambrose, ___ P.2d ___ (Colo.App. No. 92CA0355, July 28, 1994); see generally J. Quinn, supra, 50 U. Colo. L. Rev. at 299 ("Colorado rule 801(d)(1)(B) does not restrict the admissibility of prior consistent statements to those situations where impeachment is accomplished by prior inconsistent statements.").
Defendant's argument further ignores that his attorney in cross-examination of the two victims had established that they talked with each other the day following the incident in question prior to submitting their written statements to police. Eliciting this testimony amounted to an implied charge that the victims had met together and fabricated the incident. See People v. Page, supra (defense counsel's emphasis during cross-examination of the investigating officer on the officer's destruction of notes amounted to an implied charge of recent fabrication of defendant's confession, and prior consistent statements were therefore properly admitted pursuant to CRE 801(d)(1)(B)); see generally J. Quinn, supra. Indeed, defense counsel in closing argument stressed the opportunity for the two victims to fabricate the story together before submitting their written statements.
The victims testified at trial and were subject to cross-examination. Their prior consistent statements rebutted a charge of fabrication and were made before the alleged fabrication. We therefore conclude that the statements were properly admitted under CRE 801(d)(1)(B).
II.
Defendant contends that the trial court erred in refusing to grant his motion for judgment of acquittal on the charges of felony menacing because the evidence was insufficient to support the conclusion that he was aware his actions were practically certain to place the victims in fear of imminent serious bodily injury. We disagree.
A person commits felony menacing if, by the use of a deadly weapon, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Section 18-3-206, C.R.S. (1986 Repl. Vol. 8B). Felony menacing is a general intent crime which requires only that the defendant be aware that his or her conduct is practically certain to cause the result. People v. Crump, 769 P.2d 496 (Colo. 1989); People v. Zieg, 841 P.2d 342 (Colo.App. 1992).
A defendant's awareness of the result to be caused by alleged conduct may be inferred from the conduct and the surrounding circumstances. See People v. District Court, 652 P.2d 582 (Colo. 1982); see also People v. Gagnon, 703 P.2d 661 (Colo.App. 1985). And, the term "use of a deadly weapon" in this statute includes the act of holding a weapon in the presence of another in a manner that is practically certain to cause the other person to fear for his or her safety. See People v. Hines, 780 P.2d 556 (Colo. 1989).
When ruling on a motion for judgment of acquittal, the trial court must determine whether the prosecution's evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crime charged beyond a reasonable doubt. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973). Its ruling on a motion for judgment of acquittal will not be reversed absent an abuse of discretion. People v. Palumbo, 192 Colo. 7, 555 P.2d 521 (1976).
Here, the victim of one of the felony menacing charges testified that, after defendant had touched her breast and buttocks without her permission, he told her and the other victim not to call the police or he would kill them. The victim also testified that defendant told the other victim not to let her leave the home or he would kill the other victim. She also stated that defendant had picked up a knife from the kitchen and that she was scared.
The second victim testified that defendant grabbed a large knife from the kitchen and said that if she let the other girl leave he would stab them. She also testified that defendant warned her not to call the police and that if she did, it was "just going to be worse when he got out."
Viewing the evidence under the legal standards applicable to the crime of felony menacing and in the light most favorable to the prosecution, we conclude that the trial court did not abuse its discretion in denying defendant's motion for judgment of acquittal on the felony menacing charges.
Judgment affirmed.
JUDGE RULAND concurs.
JUDGE JONES specially concurs.