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 State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1

Defendant, Larry Glenn Adamson, appeals the judgment of

conviction entered on a jury verdict 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 staying at Adamson’s trailer home.

¶ 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, which upset him. Adamson called

Teany insulting names, and she responded by throwing water at

him. Adamson began to hit Teany in the head with his fists. She

then sat at the back of the trailer while Adamson went to a local

convenience store. After fifteen minutes, Teany gathered her

belongings and went back to her home.

¶ 4

Upon seeing the extent of her injuries in the mirror, Teany

called 911. During the call, she told the dispatcher that Adamson

had “beat [her] up” at his trailer and said she did not want him to

“get away with this.” Deputy Michael 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 woke him up by yelling and hitting

him in the head with her purse. They argued about where Teany

would live if not with Adamson. He testified that she got upset after

he told her to be quiet. She threw water in his face. Afterwards,

Adamson told Teany that their relationship was over. After she

walked out the door, Adamson heard the sound of a fence rattle and

Teany yelling. He helped her inside and tended to her bleeding

nose. Teany then left. Adamson denied punching her.

¶ 6

Adamson was charged with assaulting Teany. At trial, the

prosecution presented testimony from Teany, Deputy Dixon, and

experts who testified to the extent and nature of Teany’s injuries.

The prosecution also played for the jury 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 second degree assault, and the

trial court adjudicated him a habitual criminal.

3

II. Admission of Teany’s Recorded Statements to

the 911 Operator and Deputy Dixon

¶ 9

Adamson first challenges the trial court’s admission of Teany’s

out-of-court statements. We perceive no error.

A. Standard of Review

¶ 10

“A trial court has substantial discretion in deciding questions

concerning the admissibility of evidence,” and its rulings are

reviewed for an abuse of that discretion. People v. Elie, 148 P.3d

359, 362 (Colo. App. 2006). A trial court abuses its discretion if its

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 prove the truth of the matter

asserted. CRE 801(c). It is inadmissible unless permitted by a

hearsay exception, such as an excited utterance. People v. Phillips,

2012 COA 176, ¶ 61; CRE 802; CRE 803(2).

¶ 12

A statement is not hearsay if “[t]he declarant testifies . . . and

is subject to cross-examination concerning the statement, and the

4

statement is . . . consistent with his testimony and is offered to

rebut an express or implied charge against him of recent fabrication

or improper influence or motive.” CRE 801(d)(1)(B). When admitted

under this rule, prior statements are substantive evidence. People

v. Eppens, 979 P.2d 14, 20 (Colo. 1999) (Eppens II).

¶ 13

CRE 801(d)(1)(B), however, “was not intended to provide the

exclusive avenue for the introduction of prior consistent

statements.” Id. at 21. Prior consistent statements may also be

admissible to rehabilitate a witness 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 to introduce recordings of

Teany’s 911 call and her interview with Deputy Dixon. The trial

court overruled Adamson’s hearsay objections, reasoning that both

recordings were admissible as excited utterances.

¶ 15

On appeal, Adamson challenges the court’s rulings that the

recordings qualified as excited utterances. We need not decide

whether the court was correct, however, because we agree with the

People that the recordings were admissible as prior consistent

5

statements for rehabilitation. See People v. Pernell, 2014 COA 157,

¶¶ 35-37 (Pernell I) (holding that, although the trial court erred in

admitting statements as excited utterances, reversal was not

required because they were admissible as prior consistent

statements to rehabilitate a witness’s credibility), aff’d on other

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 credibility throughout trial.

On cross-examination, defense counsel asked Teany about her

“acrimonious” divorce, whether she was upset that she was not

awarded spousal maintenance, if she made a “pretty limited

income,” and whether she remembered Adamson telling her that

they would not be living together. During a bench conference and

in response to the prosecutor’s relevance objection to questions

about Teany’s divorce, defense counsel explained that “it goes to her

motive and credibility” and that “she felt somewhat spurned”

because she was not receiving spousal maintenance and Adamson

refused to let her move in with him.

6

¶ 17

Defense counsel also highlighted alleged inconsistencies

between Teany’s direct-examination testimony and her statements

to Deputy Dixon. For instance, defense counsel attempted to elicit

Teany’s admissions that she had not told Deputy Dixon that (1) she

and Adamson were arguing “about anything related to [his] family”;1

(2) her phone was broken during the assault; (3) she suffered

certain bruising as a result of the assault; and (4) Adamson had hit

her with both fists.

¶ 18

Defense counsel repeated these challenges to Teany’s

credibility during closing argument. Counsel argued that Adamson

“was helping [Teany] out with her bills” after “a pretty

heart-wrenching divorce,” she wanted to move in with him but was

“now suddenly being dumped again,” and “that’s when the

argument happened.” Counsel also repeatedly encouraged the jury

to “think about what [Teany] did and did not say to Deputy Dixon.”

Specifically, counsel said, “Do you hesitate when you think about

Teany? And folks, she did have many inconsistencies in her

1 Defense counsel was mistaken about this. In her interview with

the deputy, Teany did mention that she had argued with Adamson

about his family immediately before the assault.

7

testimony. A lot of things she said on the stand that she didn’t ever

say to Deputy Dixon. You have that 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 recorded statements to Deputy Dixon

were admissible as prior consistent 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”); Elie, 148 P.3d at 362 (“[I]f the

impeachment is general and not limited to specific facts, then the

jury should have access to all the relevant facts, including

consistent and inconsistent statements.”); People v. Tyler, 745 P.2d

257, 259 (Colo. App. 1987) (The victim’s consistent statements in

the police report were relevant because, after a general

impeachment, her credibility was at issue and “the jury should have

8

access to all the relevant facts, including consistent and

inconsistent statements.”). Although the prior statements were

admitted before Teany was cross-examined, this evidence would

have been admissible after defense 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 excited utterances). But, while it is

true that the prosecution offered, and 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 admitted the out-of-court

statements as substantive evidence — 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) (Eppens I), rev’d on other grounds,

Eppens II. Still, our supreme court found no error because the

prior consistent statements were admissible for rehabilitative

purposes and used by the prosecution 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 consistent statements “as they were

relevant, nonhearsay statements that were admissible outside CRE

801(d)(1)(B)”). The supreme court explained that, given the

defense’s attacks on the witness’s credibility, the admission of the

witness’s prior consistent statements “was necessary to give the

jury an appropriately complete picture of her credibility” and “there

is no evidence that the prosecution relied upon [the witness’s] prior

consistent statement as substantive support for its case, thereby

implicating CRE 801(d)(1)(B).” Id. In fact, the prosecutor in closing

argument urged the jury to “[l]ook at the consistency” in what the

victim said on the stand and what she said in her prior statements.

Id. at 23.

¶ 22

Likewise, divisions of this court have discerned no error in the

admission of prior consistent statements where they were

admissible for rehabilitative purposes, even where the trial court

had admitted them for substantive purposes. See Pernell I, ¶¶ 35-

41 (admitted as excited utterances); People v. Miranda, 2014 COA

102, ¶¶ 13, 20 (admitted under section 13-25-129, C.R.S. 2020,

and for rehabilitation). The upshot of those cases and Eppens II is

that, regardless of whether the evidence was improperly admitted as

10

substantive evidence, no error occurred if the evidence was

admissible for rehabilitative purposes and used for those purposes.

¶ 23

In this case, the prosecution did not use Teany’s prior

statements as substantive evidence to fill in gaps from the trial

testimony. In that regard, this case is unlike Tome v. United States,

513 U.S. 150 (1995), on which Adamson relies. There, the

prosecution had to use out-of-court statements as substantive

evidence of the charged crimes because the minor victim was

unable to utter more than “one- and two-word answers” on direct

examination. Id. at 153, 165. In contrast, the prosecution in this

case primarily used the out-of-court recordings to support Teany’s

credibility as a witness. See also Eppens II, 979 P.2d at 23

(distinguishing Tome). On direct examination, 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 the timing of when Adamson hit her

and when she called 911.

¶ 24

Importantly, the prosecutor in closing argument emphasized

the consistency between Teany’s testimony and the recordings. The

prosecutor pointed to details that Teany “was consistent on

11

throughout,” in that she mentioned them at trial, in the 911 call,

and in her interview with Deputy Dixon. More than once, and

similar to what happened in Eppens II, the prosecutor argued that

various discrepancies between Teany’s testimony and her out-of-

court statements were insignificant and that “the salient details

have not changed. The important details with [Teany] have not

changed.” See id. at 22 (“[T]he prosecution sought to demonstrate

that, with the exception of the few details highlighted by the defense

on cross-examination, [the victim’s] testimony at trial was generally

consistent with the version of events she gave during her interview

with Officer Pino.”). Thus, as in Eppens II, the prosecution here

used Teany’s prior statements to reinforce what she testified to at

trial. See id. at 23.

¶ 25

Given all this, we conclude that the 911 recording and the

recorded statements to Deputy Dixon were admissible.2

2 Adamson notes that the trial court did not give an instruction

limiting the jury’s use of this evidence to assessing Teany’s

credibility. That was also true, however, in Eppens II, Pernell I, and

Miranda. And Adamson points to no authority requiring such a

limiting instruction where evidence is admitted for rehabilitation.

12

III. Jury’s Unfettered Access to the 911 Recording

¶ 26

Adamson next contends that the trial court erred by allowing

the jury unfettered access to the 911 recording during

deliberations. We do not discern reversible error.

A. Standard of Review

¶ 27

Control over the use of exhibits during jury deliberations is

within the trial court’s discretion. DeBella v. People, 233 P.3d 664,

666 (Colo. 2010). We will not disturb a trial court’s refusal to

exclude or otherwise limit the use of an exhibit absent an abuse of

that discretion. Id. at 667.

¶ 28

Adamson preserved this issue. Accordingly, we review any

error for nonconstitutional harmless error. See id. Under this

standard, we reverse only if an erroneous ruling substantially

influenced the verdict or affected the fairness of the trial. See id.

B. Analysis

¶ 29

Generally, a jury is permitted to review in the jury room all

exhibits received into evidence, subject 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 use of exhibits during jury

deliberations in criminal proceedings must remain firmly within the

13

discretion of the court,” and a trial court should take steps to

ensure that juries are not permitted to use exhibits in a manner

that is unfairly prejudicial to a party. Id. at 704.

¶ 30

In particular, a court should be cautious when permitting a

jury to rehear portions of testimony and “exhibits substituting for

trial testimony.” Rael v. People, 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 permitting testimonial exhibits to

be viewed by deliberating juries is to guard against their being given

undue weight or emphasis . . . .” Ray v. People, 2019 CO 21, ¶ 16.

¶ 31

During the jury instruction conference in this case, defense

counsel tendered an instruction seeking to limit the jury’s use,

during deliberations, of the audio recordings of the 911 call and

Teany’s interview with Deputy Dixon. The trial court originally

agreed to give the defense’s proposed instruction 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 access

to the recording of the interview but not the 911 recording. Defense

counsel then withdrew the request to limit the jury’s use of the

14

recording of the interview. The court 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 failure to limit the jury’s access to

Teany’s interview with Deputy Dixon.

¶ 33

Teany’s 911 call and interview with Deputy Dixon were largely

consistent. During the 911 call, she said, “I was at my boyfriend’s

house, and he beat me up, and I can’t see out of my eye.” When the

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 and blue . . . I’m blowing blood out

my nose, and there’s blood all over inside of his damn trailer.”

¶ 34

Likewise, during her interview with Deputy Dixon, Teany said

Adamson “beat the shit out of [her]” while calling her a “fucking

bitch” and that he did so because she dumped cold water on him.

She also explained the extent of her 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 argue that the two recordings were

different in a significant way.

¶ 36

Hence, the jury had unfettered access to a recording (the

interview) that was largely cumulative of the 911 recording. Any

error in permitting the jury unfettered access to the 911 call was,

therefore, harmless. Cf. People v. Mapps, 231 P.3d 5, 11 (Colo. App.

2009) (concluding that any error in admitting the evidence was

harmless because it was cumulative of other evidence). So reversal

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 convictions and sentenced him to

four times the maximum in the presumptive range. We disagree.

¶ 38

“Other than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)

16

(emphasis added). Our supreme court recognized the continued

vitality of this prior conviction exception in Lopez v. People, 113

P.3d 713, 723 (Colo. 2005). Its holding is dispositive. See People v.

Moore, 226 P.3d 1076, 1089-90 (Colo. App. 2009); People v. Nunn,

148 P.3d 222, 224-28 (Colo. App. 2006).

¶ 39

Relatedly, we disagree with Adamson that Alleyne v. United

States, 570 U.S. 99 (2013), alters the analysis. The Court in that

case did not abolish the prior conviction exception; instead, the

Court expressly declined to revisit that exception. See id. at 111

n.1; People v. Session, 2020 COA 158, ¶ 27 (rejecting the notion

that Alleyne did away with the prior conviction exception).

V. Conclusion

¶ 40

The judgment is affirmed.

JUDGE GROVE and JUDGE PAWAR concur.