Peo v. Adamson

19CA1502 Peo v Adamson 10-07-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA1502
Mesa County District Court No. 18CR1265
Honorable Brian J. Flynn, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Larry Glenn Adamson,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE NAVARRO
Grove and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 7, 2021
Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Sean J. Lacefield, Deputy Sta
te
Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1
Defendant, Larry Glenn Adamson,
appeals the judgment of
conviction entered on a jury verdic
t finding him guilty of second
degree assault. We affirm.
I.
Factual and Procedural History
¶ 2
Adamson and Cheryl Teany knew
each other since their youth
and began dating following the end
of their respective marriages.
In
the summer of 2018, Teany was st
aying at Adamson’s trailer hom
e.
¶ 3
According to Teany, she and Adamson
had an altercation on
June 23, 2018. After he woke up
from a nap, they discussed his
relationship with his children, whi
ch upset him. Adamson call
ed
Teany insulting names, and she r
esponded by throwing water at
him.
Adamson began to hit Teany
in the head with his fists. Sh
e
then sat at the back of the trailer w
hile Adamson went to a local
convenience store. After fifteen mi
nutes, Teany gathered her
belongings and went back to her hom
e.
¶ 4
Upon seeing the extent of her injur
ies in the mirror, Teany
called 911. During the call, she to
ld the dispatcher that Adamson
had “beat [her] up” at his trailer a
nd said she did not want him
to
“get away with this.” Deputy Micha
el Dixon came to her residence,
took her statement, and called an
ambulance.
2
¶ 5
Adamson gave a different account of
what happened. He said
that, after he fell asleep, Teany wo
ke him up by yelling and hitting
him in the head with her purse. They
argued about where Teany
would live if not with Adamson. H
e testified that she got upset after
he told her to be quiet. She thr
ew water in his face. Afterwards,
Adamson told Teany that their r
elationship was over. After she
walked out the door, Adamson h
eard the sound of a fence rattle an
d
Teany yelling. He helped her insid
e and tended to her bleeding
nose. Teany then left. Adamson d
enied punching her.
¶ 6
Adamson was charged with assaul
ting Teany. At trial, the
prosecution presented testimony fr
om Teany, Deputy Dixon, and
experts who testified to the extent
and nature of Teany’s injuries.
The prosecution also played for the j
ury audio recordings of Teany’
s
911 call and her interview with Deputy
Dixon at her residence.
¶ 7
Adamson also testified. His theory
of defense was that Teany
fabricated the assault because she
was having financial problems
and was upset that he would not let
her move in with him.
¶ 8
The jury convicted Adamson of s
econd degree assault, and the
trial court adjudicated him a habit
ual criminal.
3
II.
Admission of Teany’s Recorded St
atements to
the 911 Operator and Deputy Di
xon
¶ 9
Adamson first challenges the trial
court’s admission of Teany’s
out-of-court statements. We perc
eive no error.
A.
Standard of Review
¶ 10
“A trial court has substantial discr
etion in deciding questions
concerning the admissibility of evi
dence,” and its rulings are
reviewed for an abuse of that discr
etion.
People v. Elie
, 148 P.3d
359, 362 (Colo. App. 2006). A trial
court abuses its discretion if it
s
decision was manifestly arbitrary,
unreasonable, unfair, or based
on an erroneous understanding or
application of the law.
People
v.
Clark
,
2015 COA 44, ¶ 40
.
B.
Applicable Law
¶ 11
Hearsay is a statement other than
one made by the declarant
while testifying at trial, offered to p
rove the truth of the matter
asserted. CRE 801(c). It is inadm
issible unless permitted by a
hearsay exception, such as an exc
ited utterance.
People v. Phillips
,
2012 COA 176, ¶ 61
; CRE 802; CR
E 803(2).
¶ 12
A statement is not hearsay if “[t]h
e declarant testifies . . . and
is subject to cross-examination c
oncerning the statement, and t
he
4
statement is . . . consistent with
his testimony and is offered to
rebut an express or implied charg
e against him of recent fabrication
or improper influence or motive.”
CRE 801(d)(1)(B). When admitted
under this rule, prior statements a
re substantive evidence.
People
v. Eppens
,
979 P.2d 14, 20
(Colo.
1999) (
Eppens II
).
¶ 13
CRE 801(d)(1)(B), however, “was n
ot intended to provide the
exclusive avenue for the introducti
on of prior consistent
statements.”
Id.
at 21. Prior consi
stent statements may also be
admissible to rehabilitate a witn
ess whose credibility has been
attacked.
Id.
;
see Clark
, ¶ 124. When
admissible for this purpose,
the statements are not hearsay.
See
Eppens II
,
979 P.2d at 20
.
C.
Analysis
¶ 14
At trial, the prosecution sought t
o introduce recordings of
Teany’s 911 call and her interview
with Deputy Dixon.
The trial
court overruled Adamson’s hearsa
y objections, reasoning that both
recordings were admissible as
excited utterances.
¶ 15
On appeal, Adamson challenges th
e court’s rulings that the
recordings qualified as excited utt
erances. We need not decide
whether the court was correct, how
ever, because we agree with th
e
People that the recordings were admissi
ble as prior consistent
5
statements for rehabilitation.
See
Pe
ople v. Pernell
,
2014 COA 157
,
¶¶ 35-37 (
Pernell I
) (holding that,
although the trial court erred in
admitting statements as excited utt
erances, reversal was not
required because they were admis
sible as prior consistent
statements to rehabilitate a witn
ess’s credibility),
aff’d on ot
her
grounds
,
2018 CO 13
(
Pernell II
);
People v. Garcia
, 2012 COA 79,
¶ 62 (noting that appellate courts
may affirm a trial court’s
evidentiary rulings on any ground
supported by the record, even if
not articulated or even considered
by the trial court).
¶ 16
Defense counsel attacked Teany’s cr
edibility throughout trial.
On cross-examination, defense co
unsel asked Teany about her
“acrimonious” divorce, whether sh
e was upset that she was not
awarded spousal maintenance, if s
he made a “pretty limited
income,” and whether she remember
ed Adamson telling her that
they would not be living together.
During a bench conference and
in response to the prosecutor’s rel
evance objection to questions
about Teany’s divorce, defense coun
sel explained that “it goes to h
er
motive and credibility” and that “she f
elt somewhat spurned”
because she was not receiving spousal
maintenance and Adamson
refused to let her move in with hi
m.
6
¶ 17
Defense counsel also highlighted a
lleged inconsistencies
between Teany’s direct-examinatio
n testimony and her statements
to Deputy Dixon. For instance, d
efense counsel attempted to elicit
Teany’s admissions that she had n
ot told Deputy Dixon that (1) she
and Adamson were arguing “abo
ut anything related to [his] family”;
1
(2) her phone was broken during
the assault; (3) she suffered
certain bruising as a result of the a
ssault; and (4) Adamson had hit
her with both fists.
¶ 18
Defense counsel repeated these cha
llenges to Teany’s
credibility during closing argum
ent. Counsel argued that Adamson
“was helping [Teany] out with her
bills” after “a pretty
heart-wrenching divorce,” she wan
ted to move in with him but was
“now suddenly being dumped agai
n,” and “that’s when the
argument happened.”
Counsel als
o repeatedly encouraged the jury
to “think about what [Teany] did a
nd did not say to Deputy Dixon.
”
Specifically, counsel said, “Do yo
u hesitate when you think about
Teany? And folks, she did have ma
ny inconsistencies in her
1
Defense counsel was mistaken a
bout this. In her interview with
the deputy, Teany did mention that
she had argued with Adamson
about his family immediately bef
ore the assault.
7
testimony. A lot of things she said
on the stand that she didn’t ever
say to Deputy Dixon. You have tha
t recording; you have that
audio.” Similarly, counsel argued
that Teany did not mention
certain details in the 911 call that
she mentioned in her testimony,
and counsel encouraged the jury
to listen to the 911 recording too.
¶ 19
Given these comprehensive attacks
on Teany’s credibility, the
911 recording and Teany’s recorde
d statements to Deputy Dixon
were admissible as prior consist
ent statements to rehabilitate her.
See Eppens II
,
979 P.2d at 22-23
;
see also Pernell I
, ¶ 39
(recognizing that defense counsel’s
vigorous cross-examination of
the witness about her version of
events and her prior statements
was “precisely the kind of attack on
a witness’s credibility that
allows for the introduction of prior
consistent statements to
rehabilitate that witness”);
Eli
e
,
148 P.3d at 362
(“[I]f the
impeachment is general and not
limited to specific facts, then th
e
jury should have access to all th
e relevant facts, including
consistent and inconsistent stat
ements.”);
People v. Tyler
, 745 P.
2d
257, 259 (Colo. App. 1987) (The vic
tim’s consistent statements in
the police report were relevant b
ecause, after a general
impeachment, her credibility was a
t issue and “the jury should hav
e
8
access to all the relevant facts, incl
uding consistent and
inconsistent statements.”). Although
the prior statements were
admitted before Teany was cross-e
xamined, this evidence would
have been admissible after defens
e counsel’s cross-examination,
“rendering harmless any error in
its premature admission.”
Pernell I
, ¶ 41.
¶ 20
Adamson argues that this case is
distinguishable from
Eppens II
because the prosecution
offered Teany’s statements as
substantive evidence (i.e., as excit
ed utterances).
But, while it is
true that the prosecution offered, a
nd the trial court admitted, both
recordings as substantive evidence,
that fact does not distinguish
this case from
Eppens II
.
¶ 21
In that case, too, the trial court ad
mitted the out-of-court
statements as substantive evidenc
e — there, under CRE
801(d)(1)(B).
See
Eppens II
,
979 P.
2d at 16
;
People v. Eppens
, 948
P.2d 20, 25 (Colo. App. 1997) (
Eppe
ns I
),
rev’d on other grounds
,
Eppens II
. Still, our supreme court
found no error because the
prior consistent statements w
ere admissible for rehabilitative
purposes and used by the prosecut
ion for rehabilitative purposes.
See Eppens II
,
979 P.2d at 22-23
(
holding that the trial court did
9
not err by admitting the prior consi
stent statements “as they were
relevant, nonhearsay statements th
at were admissible outside CRE
801(d)(1)(B)”). The supreme court
explained that, given the
defense’s attacks on the witness’s c
redibility, the admission of the
witness’s prior consistent statem
ents “was necessary to give the
jury an appropriately complete pi
cture of her credibility” and “th
ere
is no evidence that the prosecutio
n relied upon [the witness’s] prior
consistent statement as substantiv
e support for its case, thereby
implicating CRE 801(d)(1)(B).”
I
d.
In fact, the prosecutor in closing
argument
urged the jury to “[l]ook
at the consistency” in what t
he
victim said on the stand and what
she said in her prior statem
ents.
Id.
at 23.
¶ 22
Likewise, divisions of this court ha
ve discerned no error in the
admission of prior consistent stat
ements where they were
admissible for rehabilitative purpos
es, even where the trial court
had admitted them for substantiv
e purposes.
See Pernell I
, ¶¶ 35-
41 (admitted as excited utterances)
;
People v. Miranda
, 2014 COA
102, ¶¶ 13, 20 (admitted under se
ction 13-25-129, C.R.S. 2020,
and for rehabilitation). The upshot
of those cases and
Eppens II
is
that, regardless of whether the evi
dence was improperly admitted as
10
substantive evidence, no error occ
urred if the evidence was
admissible for rehabilitative purpos
es and used for those purposes.
¶ 23
In this case, the prosecution did n
ot use Teany’s prior
statements as substantive evidenc
e to fill in gaps from the trial
testimony. In that regard, this cas
e is unlike
Tome v. United
States
,
513 U.S. 150
(1995), on which Ad
amson relies. There, the
prosecution had to use out-of-cour
t statements as substantive
evidence of the charged crimes b
ecause the minor victim was
unable to utter more than “one- an
d two-word answers” on direct
examination.
Id.
at 153, 165.
In contrast, the prosecution in this
case primarily used the out-of-cou
rt recordings to support Teany’s
credibility as a witness.
See als
o Eppens II
,
979 P.2d at 23
(distinguishing
Tome
). On direct ex
amination, the prosecutor
elicited testimony from Teany that
was largely consistent with what
she reported to the 911 operator and
Deputy Dixon, apart from
minor discrepancies related to th
e timing of when Adamson hit h
er
and when she called 911.
¶ 24
Importantly, the prosecutor in clos
ing argument emphasized
the consistency between Teany’s t
estimony and the recordings. Th
e
prosecutor pointed to details that
Teany “was consistent on
11
throughout,” in that she mention
ed them at trial, in the 911 call,
and in her interview with Deputy
Dixon. More than once, and
similar to what happened in
Eppe
ns II
, the prosecutor argued that
various discrepancies between Tea
ny’s testimony and her out-of-
court statements were insignificant
and that “the salient details
have not changed. The important d
etails with [Teany] have not
changed.”
See id.
at 22 (“[T]he pro
secution sought to demonstrat
e
that, with the exception of the few d
etails highlighted by the defens
e
on cross-examination, [the victim’
s] testimony at trial was generally
consistent with the version of ev
ents she gave during her interview
with Officer Pino.”). Thus, as in
Ep
pens II
, the prosecution here
used Teany’s prior statements to r
einforce what she testified to at
trial.
See
id.
at 23.
¶ 25
Given all this, we conclude that t
he 911 recording and the
recorded statements to Deputy Di
xon were admissible.
2
2
Adamson notes that the trial court
did not give an instruction
limiting the jury’s use of this evid
ence to assessing Teany’s
credibility. That was also true,
however, in
Eppens II
,
Pernell I
, and
Miranda
. And Adamson points to n
o authority requiring such a
limiting instruction where evidenc
e is admitted for rehabilitation.
12
III.
Jury’s Unfettered Access to th
e 911 Recording
¶ 26
Adamson next contends that the t
rial court erred by allowing
the jury unfettered access to the 9
11 recording during
deliberations. We do not discern r
eversible error.
A.
Standard of Review
¶ 27
Control over the use of exhibits du
ring jury deliberations is
within the trial court’s discretion.
DeBella v. People
, 233 P.3d 664,
666 (Colo. 2010). We will not dist
urb a trial court’s refusal to
exclude or otherwise limit the us
e of an exhibit absent an abuse of
that discretion.
Id.
at 667.
¶ 28
Adamson preserved this issue. Ac
cordingly, we review any
error for nonconstitutional harml
ess error.
See
id.
Under this
standard, we reverse only if an
erroneous ruling substantially
influenced the verdict or affected t
he fairness of the trial.
See i
d.
B.
Analysis
¶ 29
Generally, a jury is permitted to r
eview in the jury room all
exhibits received into evidence, sub
ject to the trial court’s discretion
to order otherwise.
See Frasco v.
People
,
165 P.3d 701, 703
(Colo.
2007). That is, “control over the us
e of exhibits during jury
deliberations in criminal proceedin
gs must remain firmly withi
n the
13
discretion of the court,” and a trial
court should take steps to
ensure that juries are not permitted t
o use exhibits in a manner
that is unfairly prejudicial to a part
y.
Id.
at 704.
¶ 30
In particular, a court should be ca
utious when permitting a
jury to rehear portions of testimony
and “exhibits substituting for
trial testimony.”
Rael v. Peopl
e
,
2017 CO 67, ¶ 22
. “[T]he reason
trial courts have an obligation, at
least where prompted to do so by
a party, to exercise discretion in p
ermitting testimonial exhibits to
be viewed by deliberating juries is
to guard against their being giv
en
undue weight or emphasis . . .
.”
Ray v. People
,
2019 CO 21, ¶ 16
.
¶ 31
During the jury instruction conf
erence in this case, defense
counsel tendered an instruction s
eeking to limit the jury’s use,
during deliberations, of the audio r
ecordings of the 911 call and
Teany’s interview with Deputy Dix
on.
The trial court originally
agreed to give the defense’s proposed in
struction with respect to
both the 911 call and the interview
.
After further argument from
the prosecutor, however, the court
decided to limit the jury’s acc
ess
to the recording of the interview bu
t not the 911 recording.
Defense
counsel then withdrew the request
to limit the jury’s use of the
14
recording of the interview.
The c
ourt thus imposed no such
limitation as to either recording.
¶ 32
On appeal, Adamson argues that
the trial court erred by not
limiting the jury’s access to the 911
recording. He does not,
however, challenge the court’s fail
ure to limit the jury’s access to
Teany’s interview with Deputy Dix
on.
¶ 33
Teany’s 911 call and interview wit
h Deputy Dixon were largely
consistent. During the 911 call, she s
aid, “I was at my boyfriend’s
house, and he beat me up, and
I can’t see out of my eye.” When t
he
operator asked if Teany needed an
ambulance, she responded, “
I
don’t want him to get away with
this.” She continued, “I have ice on
my eye. It’s very severely black an
d blue . . . I’m blowing blood out
my nose, and there’s blood all ov
er inside of his damn trailer.”
¶ 34
Likewise, during her interview wit
h Deputy Dixon, Teany said
Adamson “beat the shit out of [h
er]” while calling her a “fucking
bitch” and that he did so because
she dumped cold water on him.
She also explained the extent of h
er injuries and why she was
conflicted in calling the police,
explaining, “I love this man but
I
can’t allow him to do this to me,
I can’t.”
15
¶ 35
The only substantive differences in
the two recordings were
Teany’s statements regarding what
time the assault occurred.
Indeed, Adamson does not argu
e that the two recordings were
different in a significant way.
¶ 36
Hence, the jury had unfettered acc
ess to a recording (the
interview) that was largely cumulat
ive of the 911 recording. Any
error in permitting the jury unf
ettered access to the 911 call wa
s,
therefore, harmless.
Cf. People v. Ma
pps
,
231 P.3d 5, 11
(Colo. App.
2009) (concluding that any error
in admitting the evidence was
harmless because it was cumulativ
e of other evidence). So revers
al
is not warranted.
IV.
Habitual Criminal Counts
¶ 37
Adamson’s last contention is that
the trial court denied his
right to a jury trial on the habitual
criminal counts when it found
that he had three prior felony con
victions and sentenced him to
four times the maximum in the pr
esumptive range. We disagree.
¶ 38
“
Other than the fact of a prior convi
ction
, any fact that increases
the penalty for a crime beyond the
prescribed statutory maximum
must be submitted to a jury, and p
roved beyond a reasonable
doubt.”
Apprendi v. New Jers
ey
,
530 U.S. 466, 490
(2000)
16
(emphasis added). Our suprem
e court recognized the continued
vitality of this prior conviction
exception in
Lopez v. People
, 113
P.3d 713, 723 (Colo. 2005). Its ho
lding is dispositive.
See People
v.
Moore
,
226 P.3d 1076, 1089-90
(C
olo. App. 2009);
People v. Nunn
,
148 P.3d 222, 224-28
(Colo. App.
2006).
¶ 39
Relatedly, we disagree with Adamso
n that
Alleyne v. United
States
,
570 U.S. 99
(2013), alters t
he analysis. The Court in t
hat
case did not abolish the prior convi
ction exception; instead, the
Court expressly declined to revisit
that exception.
See
id.
at
111
n.1;
People v. Session
,
2020 COA 1
58, ¶ 27
(rejecting the notion
that
Alleyne
did away with the pri
or conviction exception).
V.
Conclusion
¶ 40
The judgment is affirmed.
JUDGE GROVE and JUDGE PAWA
R concur.