author: Judge TAUBMAN.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony DEMBRY, Defendant-Appellant.
    No. 00CA0798.
    Colorado Court of Appeals, Div. III.
    Dec. 18, 2003.
    Certiorari Denied June 1, 2004.

      Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Law Office of Lindy Frolich, Lindy Fro-lich, Laurie S. Cohen-Ringler, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge TAUBMAN.

Defendant, Anthony Dembry, appeals the judgment of conviction entered" on jury verdicts finding him guilty of sexual assault on a child by one in a position of trust, sexual assault on a child as a crime of violence, and reckless endangerment. We affirm.

In 1998, defendant was living in Colorado Springs, where he worked as a mentor to foster children through a child protection agency. A.R., a twelve-year-old boy, was one of the children whom defendant mentored.

On February 15,1999, defendant picked up A.R. from his foster parents’ home and took him to his apartment, where he sexually assaulted him. A.R. reported the assault. A subsequent physical examination of A.R. revealed rectal soreness and an anal tear.

On February 17, 1999, police officers obtained and executed an arrest warrant for defendant and a search warrant for his apartment. During an interview with law enforcement officers, defendant admitted having had sexual contact with A.R. at his apartment, though he asserted that A.R. had initiated the contact and that it was consensual. While defendant was being interviewed, officers searched his apartment and located HIV medication. When confronted with this information, defendant also admitted he knew that he was HIV positive but did not use a condom during the assault.

After a jury trial, defendant was convicted of sexual assault on a child by one in a position of trust, sexual assault on a child, and reckless endangerment, as a lesser included offense of the charge of attempted manslaughter, based on his unprotected sexual contact with A.R. while being HIV positive. This appeal followed.

I. Use of Suppression Hearing-Testimony at Trial

Defendant asserts the trial court abused its discretion in ruling that his suppression hearing testimony, in which he admitted having sexual contact with A.R., could be used at trial to impeach his sister’s opinion regarding his character. Defendant argues that his Sixth Amendment right to a fair trial was violated because, based on the court’s ruling, he did not call his sister to testify as to his good character for fear that his suppression hearing testimony might be used to impeach her testimony. Defendant sought to have his sister testify that his character was such that he would not have committed a sexual assault. We reject defendant’s argument.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court held that a defendant must be able to invoke his or- her Fourth Amendment right to suppress.illegally obtained evidence without surrendering the Fifth Amendment privilege against self-incrimination. Consequently, a defendant’s suppression hearing testimony cannot be used at trial to prove guilt. Simmons v. United States, supra.

Nevertheless, in People v. Rosa, 928 P.2d 1365, 1371 (Colo.App.1996), a division of this court held that Simmons does not protect a defendant from the obligation to testify truthfully, and, therefore, a defendant’s suppression hearing testimony may be used to impeach the defendant’s contrary trial testimony. However, this case involves the potential testimony of a third person.

In Rosa, the division balanced the defendant’s Fourth Amendment right to suppress illegally obtained evidence against his Fifth Amendment right not to incriminate himself. Here, because a third party would have been the source of the testimony, the trial court would have been required to balance defendant’s Sixth Amendment right to present evidence with his Fourth and Fifth Amendment rights.

Under the Sixth Amendment, a defendant has a due process right to present evidence in his or her defense, but that right is not absolute. The trial court must use its authority to accommodate all legitimate interests in the criminal-trial process. People v. Collie, 995 P.2d 765, 771 (Colo.App.1999).

The scope of cross-examination is a matter within the sound discretion of the trial court, and its determination will not be disturbed absent an abuse of that discretion. People v. Crawford, 191 Colo. 504, 507, 553 P.2d 827, 829 (1976). A defendant may introduce testimony regarding his or her reputation for good character, but that testimony may be impeached on cross-examination of the defendant’s character witnesses by inquiry into relevant specific instances of conduct. CRE 404(a)(1), 405(a); People v. Pratt, 759 P.2d 676 (Colo.1988).

[T]he purpose of cross-examination of a character witness is not to establish the truth of the acts inquired about but rather to show the existence of such acts as they may bear upon the credibility of the witness and the accuracy of his testimony regarding community opinion. Thus, a character witness may be asked whether he has heard that the defendant has been arrested for a crime whether or not it culminated in a conviction.

United States v. Evans, 542 F.2d 805, 817 (10th Cir.1976).

We recognize that “it is improper to ask the character witness whether his or her testimony would be affected if the character witness assumed the existence of the particular act for which the accused is on trial.” See Michael H. Graham, Handbook of Federal Evidence § 405.1 (5th ed.2001). However, we agree with the decisions of federal courts holding that such cross-examination of a character witness is proper when it concerns facts regarding the charged offenses that the defendant has conceded earlier in the trial through testimony or statements of counsel. See United States v. Wilson, 983 F.2d 221 (11th Cir.1993); United States v. Velasquez, 980 F.2d 1275 (9th Cir.1992).

Here, the People did not seek to introduce defendant’s suppression hearing testimony on the issue of guilt. During a conference out of the presence of the jury, defense counsel indicated that defendant sought to present his sister’s testimony to show that his character was such that he would not have committed a sexual assault. However, if defendant called his sister as a character witness, the People intended to introduce defendant’s suppression hearing testimony to impeach her opinion.

■As in Rosa, the holding in Simmons does not relieve defendant of -his obligation to present truthful testimony, whether through his own testimony or that of others. Because defendant did not call his sister to testify, we can draw no conclusions as to the admissibility of the testimony she may have provided in response to questions from defense counsel. If we assume that (1) defense counsel’s questions to defendant’s sister would have elicited proper character evidence, and (2) defendant’s sister would have been allowed to testify about his good character without being subjected to cross-examination about her awareness of defendant’s suppression hearing testimony, there would have been a substantial question as to the accuracy of her statements of fact and the credibility of her opinions. Also, the proposed impeachment of the sister as a character witness would have been based upon defendant’s suppression hearing testimony, made under oath, not a hypothetical question based upon the assumption that defendant was guilty of the crime charged. See United States v. Wilson, supra; United States v. Velasquez, supra.

Furthermore, the trial court did not prohibit defendant from calling his sister as a witness. To the contrary, the trial court allowed defendant, in the event he called his sister to the stand, to ask leading questions on direct examination so that defendant could present evidence without unintentionally eliciting character evidence. Nevertheless, defendant elected not to call his sister as a witness for any purpose.

Under the circumstances, we conclude that defendant’s constitutional rights.were not violated. His Fourth Amendment rights were protected when he testified at the suppression hearing. See Simmons v. United States, supra. His Fifth Amendment rights were protected because his suppression hearing testimony was not used during the prosecution’s case-in-chief as evidence of his guilt. Finally, defendant’s Sixth Amendment rights were not violated because he was not prevented from presenting evidence on his behalf. We further conclude that the trial court properly balanced defendant’s Fourth, Fifth, and Sixth Amendment rights in ruling that his suppression hearing testimony could be used at trial to impeach his sister’s opinion regarding his character.

Thus, the trial court did not abuse its discretion.

II. Motion to Sever

Defendant next argues the trial court abused its discretion by denying his motion to sever the attempted manslaughter count from the sexual assault charges. Defendant argues that the jury heard highly prejudicial evidence of his HIV status, which would not have been .admissible to prove the sexual assault charges. We disagree.

A.

As an initial matter, the People argue that because defendant did not renew his pretrial motion to sever during trial, he has waived his right to object to the joint trial. However, in People v. Gross, 39 P.3d 1279 (Colo.App.2001), a division of this court held that a defendant need not renew opposition to the prosecution’s pretrial consolidation motion to preserve the issue for appellate review. Here, similarly, the prosecution amended the information to add the attempted manslaughter count. Therefore, following Gross, we conclude defendant was not required to renew his motion to sever, and we address his severance motion on the merits.

B.

Denial of a motion to sever will not be disturbed on appeal absent a showing of abuse of the trial court’s discretion resulting in actual prejudice to the defendant. People v. Pickett, 194 Colo. 178, 571 P.2d 1078 (1977).

Crim. P. 8(a)(2) allows for offenses to be tried together if they “are of the same or similar character or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Here, after law enforcement officials discovered that defendant was HIV positive and knowingly had unprotected intercourse with A.R., defendant was charged with attempted manslaughter. Because the attempted manslaughter charge arose from the same, act of sexual assault on a child as the other charges, the charge was properly brought in the same proceeding pursuant to Crim. P. 8(a)(2).

Additionally, the trial court weighed the possible prejudicial effect of defendant’s HIV status against the possibility that A.R. would have to testify in two separate proceedings. The jury was instructed not to let its decision on any one count influence its decision on any other and not to let any prejudice dictate its decision.

Ultimately, the jury did not convict defendant of attempted manslaughter, but of the lesser included offense of reckless endangerment. Thus, defendant has not demonstrated actual prejudice as a result of the trial court’s denial of his motion to sever.- Therefore, the trial court did not abuse its discretion.

III. Request for Mistrial

■ Defendant next asserts that the following cumulative errors resulted in an unfair trial: (1) the deputy’s radio went off during the voir dire portion of jury selection; (2) the judge asked whether A.R. was cold while testifying; (3) the People’s expert witness referred to defense counsel as the public defender; and (4) the trial judge nodded affirmatively during the prosecution’s direct examination of A.R., Specifically, he argues that the trial court abused its discretion when it denied his request for a mistrial with respect to the first alleged error and did not sua sponte grant a mistrial with respect to the other three alleged errors. We conclude that no mistrial was required.

A' mistrial is a drastic remedy that is warranted only where the prejudice to the defendant is too substantial to be remedied by other means. People v. Copenhaver, 21 P.3d 413, 417 (Colo.App.2000). A trial court has broad discretion to grant or deny a mistrial, and its decision will not be disturbed on appeal absent a gross abuse of discretion and prejudice to the defendant. People v. Abbott, 690 P.2d 1263, 1269 (Colo.1984).

Here, defendant had requested that the deputies wear plain clothes so as not to communicate to the jury that he was in custody at the time of trial. He asserts that this purpose was defeated when the plainclothes deputy’s mobile radio sounded. However, there is no record evidence that the jury heard the mobile radio, understood its significance, or associated it with defendant’s custodial status.

Further, we are not persuaded that defendant was prejudiced when the court asked A.R. whether he was cold during his direct examination and offered to have a jacket brought to him.

“A trial court may not express to a jury any personal opinion of the credibility of testimony.” People v. Rogers, 800 P.2d 1327, 1328 (Colo.App.1990). In Rogers, a division of this court concluded that the trial court had demonstrated undue partiality to a child witness when the judge came off the bench and personally escorted the child witness to and from the witness box.

However, in People v. Woellhaf, 87 P.3d 142, 2003 WL 21403159 (Colo.App. No. 00CA2351, June 19, 2003), a division of this court held that the trial court is accorded broad discretion to regulate courtroom conduct and may take steps to assuage a victim’s fear in testifying. In Woellhaf, the trial court commented to the victim that she was “like a t.v. star” because she used a microphone during her testimony, and the prosecutor added that she was “like Britney Spears.” The division held that, although such comments were inadvisable, they clearly were not comments on the victim’s credibility-

In our view, the actions of the trial court here are more similar to those in Woellhaf than to those in Rogers. The court’s question to A.R. was an attempt to make him more comfortable in testifying, but clearly did not lend credibility to his testimony.

Next, we cannot conclude that defendant was unfairly prejudiced when the prosecution’s expert witness referred to defense counsel as the public defender. Defendant offers no evidence or authority for the proposition that being represented by the public defender’s office is prejudicial in any way.

Finally, there is no record evidence of when, if ever, the trial court judge nodded his head affirmatively during the prosecution’s direct examination. Defendant alleges that two attorney spectators saw the judge nodding, but that his defense counsel did not. The trial court judge stated that he did not nod in affirmation of the testimony of any witness. Defendant presented no evidence that the jury saw the judge nod at any time. Defense counsel made no contemporaneous objection regarding the alleged action.

Because defendant has not demonstrated prejudice, the trial court did not abuse its discretion in not granting a mistrial.

IV. Challenge for Cause

Defendant next asserts that the trial court abused its discretion by not granting his challenge for cause. We perceive no abuse of discretion.

A trial court’s ruling on a challenge for cause to a prospective juror is reviewed for abuse of discretion. This standard gives deference to the trial court’s assessment of the credibility of a prospective juror’s responses, recognizes the trial court’s unique role and perspective in evaluating the demeanor and body language of live witnesses, and serves to discourage an appellate court from second-guessing those judgments based on a cold record. Carrillo v. People, 974 P.2d 478, 485-86 (Colo.1999).

On answering the jury questionnaire, one prospective juror indicated that it might be difficult for him fairly to judge a case involving sexual assault because his brother had been sexually assaulted as a child. He also indicated that he thought homosexuality was wrong and unnatural. For these reasons, defendant challenged the prospective juror for cause.

When the prospective juror was questioned by the court and counsel, he stated that his brother was forced to perform oral sex on a female babysitter in 1982. He stated that he was not present when the assault occurred and was very young at the time. He also indicated that he had not formed an opinion about the incident, had not thought about it in several years, and would be able to separate his feelings about what happened to his brother if the facts of this case were dissimilar. The juror also explained that while homosexuality was against his philosophical beliefs, his beliefs would not prevent him from judging the case based on the evidence. He also indicated that the mere fact that one is homosexual does not bear on whether that person is a pedophile.

Because the prospective juror indicated that his personal experiences would not improperly influence his decision, the trial court did not abuse its discretion in denying defendant’s challenge for cause. See People v. Griffin, 985 P.2d 15, 20 (Colo.App.1998)(“pro-spective juror’s indication of concern about the ability to set aside a prejudice or preconceived belief about some facet of the case does not automatically warrant exclusion for cause”).

V. Rape Shield Statute

Defendant asserts the trial court abused its discretion in denying his motion to introduce, as exceptions to the rape shield statute, evidence that A.R. (1) had been sexually assaulted previously and was undergoing counseling for those assaults, (2) was a perpetrator of sexual assault, and (3) had had conversations with others regarding his own sexuality and defendant’s sexuality. We disagree.

We review a trial court’s factual determination as to the relevance of evidence for abuse of discretion. People v. Harris, 43 P.3d 221, 225 (Colo.2002).

The rape shield statute’s general prohibition on the admission of evidence of a rape victim’s sexual conduct is qualified by three statutory exceptions. § 18-3-407, 6 C.R.S. (2001). Thus, the evidence is not presumptively irrelevant under the statute if: (1) it is evidence of a victim’s prior sexual contact with the accused; (2) it is evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or similar evidence; or (3) if the defendant makes an offer of proof showing that the evidence is relevant to a material issue in the case. Evidence coming within one of these provisions is not automatically admissible, however: it remains subject to the usual rules of evidence.

People v. Harris, supra, 43 P.3d at 225.

Here, the evidence defendant sought to introduce was not evidence of A.R.’s prior sexual contact with him. Additionally, defendant does not argue that the evidence concerned specific instances of sexual activity showing that someone else was the source of A.R.’s anal tear.

Defendant argues that the evidence should have been admitted because it was relevant to the issue of whether he employed force when he sexually assaulted A.R. because A.R. was predisposed to have homosexual, pedophilic experiences. However, this is exactly the type of evidence that the rape shield statute proscribes. See People v. Harris, supra; People v. McKenna, 196 Colo. 367, 372, 585 P.2d 275, 278 (1978)(the rape shield statute demonstrates the legislature’s unequivocal commitment to the principle that “victims of sexual assaults should not be subjected to psychological or emotional abuse in court as the price of their cooperation in prosecuting sex offenders”).

A.R.’s sexuality and prior sexual experiences are irrelevant to the issue of whether defendant used force when sexually assaulting him on the date in question. Defendant failed to satisfy the burden of showing relevance sufficient to rebut the rape shield statute’s presumption of irrelevance; therefore, we perceive no abuse of discretion in the trial court’s ruling.

The judgment is affirmed.

Judge NIETO and Judge CARPARELLI concur.


source: Caselaw Access Project

author: Justice ERICKSON.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger L. JACOBS, Defendant-Appellant.
    No. 01CA1947.
    Colorado Court of Appeals, Div. V.
    Dec. 31, 2003.
    Rehearing Denied Feb. 12, 2004.
    Certiorari Denied June 14, 2004.

      Ken Salazar, Attorney General, Paul Koeh-ler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Justice ERICKSON.

Defendant, Roger L. Jacobs, appeals the judgment of conviction entered upon jury verdicts finding him guilty of two counts of soliciting for child prostitution. He also appeals the indeterminate sentence of twenty-five years to life imposed by the court. We affirm the judgment, but reverse the sentence and remand to the trial court for resen-tencing.

A detective in California set up an Internet site at which he offered “very young, very attractive escorts.” Defendant e-mailed the detective and inquired about contacts in the Denver area. Defendant and the detective exchanged nearly thirty e-mails. In the emails, defendant stated that he was Roger Jacobs and lived in Westminster, Colorado. He said he was interested in teenage girls “with an emphasis on the VERY young” and the “Slim/waifish” body type.

The detective responded that his escort service included girls aged six to thirteen. Defendant indicated that he wanted a partner with whom he could engage in various types of sex.

In response to defendant’s request, the detective sent defendant a picture of “Kim-mie,” who he told defendant was twelve years old. Defendant told the detective that he liked her and subsequently sent the detective a picture of himself, as well as a picture of the type of young girl with whom he would like to have sex.

Subsequent e-mails were exchanged between the two, discussing the logistics of meeting “Kimmie,” and defendant suggested that perhaps “Kimmie” could engage in group sex with members of a college fraternity. Defendant described in detail the sex acts he wanted to perform with “Kimmie.”

On January 21, 1999, the detective called defendant, after defendant paged him twice. Defendant said that he was satisfied with the arrangements concerning “Kimmie.” Defendant also suggested two nearby hotels in the Westminster area for his “date” with “Kim-mie.” During their discussion, the detective described “Kimmie” as a twelve-year-old who was about five feet tall, weighed eighty pounds, and had almost no breasts or pubic hair. Defendant asked whether “Kimmie” could handle a “male organ.’ detective answered in the affirmative, defendant replied, “sounds like a plan.” ’ When the

Thereafter, defendant e-mailed the detective, expressing concern that he might actually be dealing with law enforcement, and said that he did not want to pursue the matter any further and that their communications had been nothing but a fantasy.

Defendant was subsequently charged and convicted on two counts of soliciting for child prostitution under § 18-7-402, C.R.S.2003. He was sentenced to an indeterminate sentence in the Department of Corrections with a minimum term of twenty-five years and a maximum of life.

I.

Defendant first contends the trial court failed to fully and accurately instruct the jury regarding the crime of soliciting for child prostitution. Specifically, he contends that “solicit” has a technical meaning, as embodied in the general solicitation statute, § 18-2-301, C.R.S.2003, and related case law, and that the trial court should have instructed the jury on the general solicitation statute. We disagree.

Defendant made no contemporaneous objection to the jury instruction on soliciting for child prostitution. Therefore, his argument must be viewed under a plain error standard. See Crim. P. 52(b); Wilson v. People, 743 P.2d 415 (Colo.1987). Plain error occurs only when “an appellate court, after reviewing the entire record, can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.” Wilson, supra, 743 P.2d at 420.

Soliciting for child prostitution under § 18-7-402, the crime charged here, is defined as follows:

(1) A person commits soliciting for child prostitution if he:
(a) Solicits another for the purpose of prostitution of a child or by a child; [or]
(b) Arranges or offers to arrange a meeting of persons for the purpose of prostitution of a child or by a child.

The trial court’s elemental instructions tracked this statutory language.

Contrary to defendant’s argument, the statutory elements of the general inchoate offense of solicitation do not apply to the separate substantive offense of soliciting for child prostitution. Like the other inchoate offenses of attempt and conspiracy, §§ 18-2-101, 18-2-201, C.R.S.2003, solicitation is an offense only in relation to a separate substantive felony. See § 18-2-301(1). Then it is a felony one class lower than the substantive felony that is the object of the solicitation. See § 18-2-301(5), C.R.S.2003.

In contrast, the offense of soliciting for child prostitution is an offense in and of itself with its own statutory elements and its own designated penalty level. See § 18-7-402. The Colorado Criminal Code has no separate child prostitution offense that could be the object of a solicitation charge. Soliciting for child prostitution is not an inchoate offense under Article 2 of Title 18; it is a separate substantive criminal offense. Thus, the trial court’s failure to instruct the jury on “solicitation” as defined in § 18-2-301 was not error, and certainly not plain error. See People v. R.V., 635 P.2d 892, 894 (Colo.1981)(an elemental jury instruction tracking the language of the statute is almost always sufficient); People v. Wilson, 791 P.2d 1247, 1250 (Colo.App.1990).

II.

Defendant asserts that, during closing argument, the prosecution misstated the law when it asserted that the affirmative defense of abandonment and renunciation did not apply once defendant had completed commission of the crimes charged. We disagree.

Whether closing argument is improper depends on the nature of the comments made and on whether the attention of the jury was directed to something it was not entitled to consider. See People v. Shepherd, 43 P.3d 693, 697 (Colo.App.2001). Although counsel may comment on the instructions of law given to the jury, counsel may not misstate or misinterpret the law. People v. Shepherd, supra, 43 P.3d at 697; People v. Anderson, 991 P.2d 319, 321 (Colo.App.1999).

The General Assembly has the prerogative to formulate principles of justification or excuse and to limit those defenses to particular crimes. Hendershott v. People, 653 P.2d 385, 391 (Colo.1982). The attempt and solicitation statutes expressly state that abandonment and renunciation is an affirmative defense to those inchoate offenses. See §§ 18-2-101(3), 18-2-301(4), C.R.S.2003. However, the soliciting for child prostitution statute does not list abandonment and renunciation as an affirmative defense. See § 18-7-402.

Thus, defendant was not entitled to raise that affirmative defense here. See generally People v. Scialabba, 55 P.3d 207, 210 (Colo.App.2002)(concluding that “[ajbsent some legislative intent to apply the [abandonment] defense to tampering with a witness ... it has no application to that crime”).

Nonetheless, the trial court erroneously gave an instruction to the jury on the defense. Defendant requested the instruction, and it inured to his benefit and cannot support reversal on appeal. See People v. Quintana, 882 P.2d 1366, 1375 (Colo.1994).

Moreover, the prosecution’s closing argument complied with Colorado law. Defendant committed all the elements of solicitation for child prostitution before he sought to abandon or renounce his criminal acts. Defendant could not abandon and renounce the crimes charged after they were completed. See, e.g., People v. Mason, 642 P.2d 8, 13 (Colo.1982)(solicitation of prostitution “is complete when the offender solicits another for prostitution [or] arranges or offers to arrange a meeting of persons for the purpose of prostitution”); Scialabba, supra, 55 P.3d at 210 (the crime of tampering with a witness is an intentional attempt to interfere with a witness; thus, defendant could not have abandoned the crime of tampering once he had already attempted to influence the witness because the crime was then complete). Thus, we find no reversible error.

III.

Defendant also asserts the prosecution failed to present sufficient evidence that he committed a crime within the trial court’s jurisdiction. We are not persuaded.

Colorado courts have jurisdiction over offenses if they are committed wholly or partly within the state. See § 18-1-201(1)(a), C.R.S.2003.

When the sufficiency of evidence is challenged on appeal, the reviewing court must consider whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Here, the record is replete with evidence that defendant committed all the elements of the crime of soliciting for child prostitution within Colorado’s borders. In his e-mails to the detective, defendant repeatedly identified Denver or Westminster, Colorado as the place where the sex acts would occur. He inquired whether there were “any contacts for young attractive female escorts in the Denver (Colorado) metropolitan area.” He mentioned that he lived in Westminster, Colorado, “the north end of Denver,” and asked when the detective would be “here in the Denver metro area.”

We conclude that this evidence, when considered in the light most favorable to the prosecution, is sufficient to establish that defendant committed his crime wholly or partly within Colorado.

IV.

Defendant next contends that the trial court erred when it failed to instruct the jury on verdict unanimity and did not require the prosecution to elect which incidents supported the charges of solicitation for child prostitution. We disagree.

Again, because defendant did not request the prosecution to make such an election and failed to submit a unanimity instruction, plain error is the standard. See Wilson v. People, supra.

Relying on Thomas v. People, 803 P.2d 144 (Colo.1990), defendant argues that when a case presents evidence of many acts, and any one of the acts would independently constitute the offense charged, the prosecution may have to choose the act upon which it relies for a conviction.

However, in People v. Collins, 730 P.2d 293 (Colo.1986), the supreme court ruled that where a defendant is charged with crimes occurring in a single transaction, the prosecution is not required to specify the acts which are the basis for the separate counts. See also People v. Thurman, 948 P.2d 69 (Colo.App.1997); People v. Hanson, 928 P.2d 776 (Colo.App.1996).

The record contains evidence of numerous communications between defendant and the detective, consisting of nearly thirty e-mails and one phone call, but they all concerned arranging one “date.” Defendant’s various e-mails focused on different aspects of the “date,” including cost, length of time, activities, and the like. Thus, under the circumstances here, we agree with the prosecution that, in the aggregate, these communications constituted a single transaction.

We therefore conclude that the charges here originated from a single transaction. As in Collins, the trial court did not err in failing to provide the jury with a unanimity instruction, and we find no error, much less plain error.

V.

Defendant argues that the evidence was insufficient to support his conviction of soliciting for child prostitution under § 18-7-402(1)(b). Defendant contends that the detective, not defendant, “arranged” a meeting with “Kimmie.” Again, we disagree.

The evidence in the record overwhelmingly supports the finding that defendant tried to use the detective as his agent to arrange a meeting, as discussed above in part III.

VI.

Finally, defendant contends, and the prosecution concedes, that the trial court erred by imposing an indeterminate sentence. We agree.

The trial court sentenced defendant to an indeterminate sentence of twenty-five years to life. The court believed it was authorized to impose an indeterminate sentence pursuant to the former § 16-13-804 (now § 18-1.3-1004, C.R.S.2003).

Before a defendant convicted, of soliciting for child prostitution can be sentenced to an indeterminate sentence, an assessment must be made that it is likely that the defendant will commit an enumerated sexually violent predator crime under certain specific circumstances. See § 18-1.3-1004(4)(a), (b)(IV), C.R.S.2003.

No such assessment was conducted here. Consequently, the trial court should not have sentenced defendant to an indeterminate sentence. We thus reverse the sentence and remand this case to the trial court for imposition of a determinate sentence, or for an assessment pursuant to § 18-1.3-1004(4)(a).

The judgment is affirmed. The sentence is reversed, and the ease is remanded further proceedings consistent with this opinion.

Judge CASEBOLT and Judge ROY concur.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2003.


author: Judge NIETO.

text:
    The PEOPLE of the State of Colorado, In the Interest of S.G., S.G., and S.G., Children, Upon the Petition of the Douglas County Department of Human Services, Petitioner-Appellee, and Concerning J.G., Respondent-Appellant.
    No. 01CA2036.
    Colorado Court of Appeals, Div. III.
    Feb. 26, 2004.

      Certiorari Denied May 24, 2004.

      Dill Dill Carr Stonbraker & Hutchings, PC, Daniel W. Carr, Denver, Colorado, for Petitioner-Appellee.
    Holland & Pagliuca, P.C., Jeffrey S. Pagli-uca, Heather R. Hanneman, Denver, Colorado, for Respondent-Appellant.

       Justice BENDER does not participate.

   Opinion by

Judge NIETO.

J.G. (father) appeals the judgment terminating his parental rights with respect to his three daughters and the order denying his C.R.C.P. 60(b) motion. We affirm.

Father was tried for the murder of his wife, mother-in-law, and father-in-law, and the attempted murder of one of his daughters. He was acquitted of all charges. Following the criminal trial, the Douglas County Department of Human Services (DCHS) commenced proceedings to terminate father’s parental rights pursuant to § 19-3-604(1)(b)(II), C.R.S.2003 (court may order termination of parental rights based on a single incident resulting in serious bodily injury of a child).

Before the termination hearing, father moved to disqualify the trial judge because he had presided over the criminal trial (first recusal motion). The court denied this motion.

After the termination hearing, in a detailed, thorough, and well-reasoned order, the court terminated father’s parental rights, finding by clear and convincing evidence that he killed his wife, mother-in-law, and father-in-law and caused serious bodily injury to his daughter. Father appealed that judgment.

A wrongful death action arising out of the same incident was pending against father, and it was also assigned to the same trial judge. After the termination hearing, the trial judge sua sponte recused himself from presiding over that ease.

While this appeal was pending, DCHS disclosed that one of its expert witnesses had testified falsely. Father was granted a limited remand to pursue a motion for relief from judgment under C.R.C.P. 60.

Father then', moved to disqualify DCHS’s attorneys from the C.R.C.P. 60 proceeding and also moved for recusal of the trial judge (second recusal motion). The trial court did not disqualify DCHS’s attorneys, did not re-cuse itself, and denied father’s motion for relief from judgment. This recertified appeal followed.

I.

Father first contends that the trial judge erred by failing to recuse himself from the termination hearing and the C.R.C.P. 60(b) motion. We disagree.

“In a civil case, the trial judge’s decision whether to disqualify himself or herself is discretionary and will not be reversed unless an abuse of discretion is shown.” Zoline v. Telluride Lodge Ass’n, 732 P.2d 635, 639 (Colo.1987). However, on appeal, a trial court’s determination of the legal sufficiency of a motion and affidavit to disqualify is subject to an independent review. The test of the sufficiency of a motion to disqualify is whether the motion and required affidavit state facts from which it may reasonably be inferred that the judge harbors bias or prejudice that will prevent him or her from dealing fairly with the party seeking recusal. Moody v. Corsentino, 843 P.2d 1355 (Colo.1993). If the motion and supporting affidavit merely allege opinions or conclusions that are unsubstantiated by facts supporting a reasonable inference of actual or apparent bias or prejudice, disqualification is not required. Holland v. Bd. of County Comm’rs, 883 P.2d 500 (Colo.App.1994).

Generally, a judge’s ruling on a legal issue cannot form the basis for recusal. Brewster v. Dist. Court, 811 P.2d 812 (Colo.1991). Also, a judge’s opinion formed against a party from evidence before the court in a judicial proceeding, even as to the guilt or innocence of a defendant, is generally not a basis for disqualification. Walker v. People, 126 Colo. 135, 145, 248 P.2d 287, 293 (1952).

A.

In the first recusal motion, father argued that disqualification was required because the trial judge presided over the criminal trial, made rulings there unfavorable to father, and appeared to believe during the trial that father committed the murders. Specifically, father points to two unfavorable rulings made by the trial judge: a finding of probable cause to bind over the criminal case for trial and a finding that the proof was evident and the presumption great that father had committed the charged murders.

1.

The trial judge denied the motion because, inter alia, it failed to assert “facts from which one could conclude that this court has some interest or prejudice in this case.”

The motion failed to state facts from which it could be inferred that the trial judge was biased or prejudiced. It merely asserted that the trial judge had presided over father’s criminal trial and made rulings in that case. It did not assert other facts from which bias or prejudice could be inferred.

Unfavorable rulings and a court’s alleged personal opinion formed from the judicial proceeding are insufficient to establish bias. See Brewster v. Dist. Court, supra; Walker v. People, supra.

Father cites no case, and we are aware of none, holding that the mere fact that a judge presided over a related case involving the same party is a sufficient basis to disqualify that judge from a subsequent case. We have found cases, albeit not in Colorado, holding that a judge is not disqualified for presiding over an earlier unrelated case involving the same party. United States v. Frezzo, 563 F.Supp. 592 (E.D.Pa.1983), aff'd, 734 F.2d 8 (3d Cir.1984); State v. Webb, 238 Conn. 389, 680 A.2d 147, 186 (1996); People v. Peterson, 311 Ill.App.3d 38, 244 Ill.Dec. 206, 725 N.E.2d 1 (1999); State v. Parton, 817 S.W.2d 28 (Tenn.Crim.App.1991). We agree with the holdings in these cases and conclude that the mere fact that the trial judge presided over the earlier criminal ease against father is not grounds for his disqualification here.

We reject father’s contention that the trial judge was prejudiced by the evidence he heard in the criminal trial that would not have been presented in this case. What a judge learns in his or her judicial capacity usually cannot form the basis for disqualification. People v. Ramos, 708 P.2d 1347 (Colo.1985). It is presumed that a trial judge disregards incompetent evidence. People v. Mascarenas, 181 Colo. 268, 509 P.2d 303 (1973). Without specific contrary evidence in the record, we presume that the trial judge here disregarded evidence inadmissible in this proceeding that he learned from the criminal proceedings.

As to the specific findings in the criminal case that father relies on here, we also conclude these are not a sufficient basis to require disqualification of the trial judge.

“[Jjudicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994); see also Brewster v. Dist. Court, supra; People v. Ramos, supra; Walker v. People, supra.

Accordingly, we conclude that the trial judge did not abuse his discretion in finding that the facts asserted in the motion did not support an inference that he was biased or prejudiced against father.

2.

Further, even if the assertions in the motion had been sufficient, the motion had fatal procedural flaws.

Here, father did not include an affidavit with his first motion, as required by C.R.C.P. 97. Without an affidavit, the motion to re-cuse was legally insufficient. See Jones v. Estate of Lambourn, 159 Colo. 246, 411 P.2d 11 (1966)(appellate court refused to consider the issue where appellant did not comply with C.R.C.P. 97 in the trial court); Kubat v. Kubat, 124 Colo. 491, 238 P.2d 897 (1951)(the moving party must include an affidavit supporting the motion to disqualify).

Father argues that an affidavit was unnecessary because the facts were undisputed and known to the trial judge. Defendant did not raise this argument in the trial court or in his opening brief. Because the argument is raised for the first time in his reply-brief, we need not consider it. See People v. Hall, 59 P.3d 298 (Colo.App.2002).

Additionally, the motion was untimely. The first motion to recuse was filed shortly before the termination hearing and thirty-eight months after the dependency and neglect action was started, twenty-one months after father was acquitted in the criminal case, and fourteen months after the motion to terminate parental rights was filed. This lapse of time, while legal proceedings continued, supports the trial judge’s finding of untimeliness. See Aaberg v. Dist. Court, 136 Colo. 525, 319 P.2d 491 (1958)(failure to file promptly a C.R.C.P. 97 motion when grounds are known may constitute waiver); Holland v. Bd. of County Comm’rs, supra (C.R.C.P. 97 motion filed one year after grounds were known was not filed promptly); Estate of Binford v. Gibson, 839 P.2d 508 (Colo.App.1992)(C.R.C.P. 97 motion filed two years after grounds were known was untimely).

B.

In his second recusal motion, father incorporated a C.R.C.P. 97 motion filed in the related wrongful death action, and asked the trial judge to recuse himself from the C.R.C.P. 60 proceedings. In his motion and affidavit, father cited several unfavorable rulings made by the court in the termination hearing and several statements in the court’s termination order characterizing father as unbelievable. The trial judge found that all those statements were made in rulings during the prior proceedings. He concluded that rulings unfavorable to father were not sufficient grounds to justify his disqualification and denied the motion.

As stated above, opinions a judge formed from evidence in proceedings before the court are insufficient to require disqualification. Liteky v. United States, supra; Brewster v. Dist. Court, supra. Unfavorable rulings alone are also insufficient. See Walker v. People, supra.

Therefore, we conclude that the trial judge did not abuse his discretion in denying this motion on the grounds asserted.

1.

On appeal, father contends that the trial judge should have recused himself from the C.R.C.P. 60 proceeding because he re-cused himself sua sponte in the wrongful death action. We disagree.

The trial judge did not disqualify himself in the wrongful death action because he was biased or prejudiced against father. Rather, in the wrongful death action, the plaintiff moved for summary judgment based on factual findings in the trial judge’s order terminating father’s parental rights. The judge recused himself to avoid an appearance of bias because in the wrongful death case, the court would have had to rule on the sufficiency of his own factual findings in the termination hearing. Therefore, recusal in the wrongful death action did not mandate recu-sal in this case.

2.

Father also asserts that the trial court erred by failing to consider Canon 3 of the Code of Judicial Conduct in ruling on the recusal motion. We disagree.

As relevant here, Canon 3(C)(1)(a) of the Code of Judicial Conduct requires disqualification if a judge has “a personal bias or prejudice concerning a party.” A judge must consider the judicial canons when deciding whether recusal is appropriate. Zoline v. Telluride Lodge Ass’n, supra, 732 P.2d at 639.

“Trial judges are presumed to know the law and to apply it in making their decisions.” People v. White, 870 P.2d 424, 440 (Colo.1994)(quoting Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990)). Appellate courts do not indulge in presumptions of bias and do not assume a violation of the Code of Judicial Conduct. People v. Vecchio, 819 P.2d 533, 535 (Colo.App.1991).

The trial judge did not specifically state that he harbored no personal bias or prejudice against father. However, in ruling on the motion, the trial judge stated that father presented no information that would lead the court “to believe that it cannot be fair” and that “no facts were presented from which one could conclude that this court has some interest or prejudice in this case.” These statements demonstrate that the judge considered whether he was biased or prejudiced against father and concluded that he was not. We further presume the trial judge knew and applied the law, including Canon 3(C)(1)(a), in denying father’s motion.

Accordingly, we conclude that the trial court properly denied father’s second recusal motion.

II.

Father next contends the trial court erred in denying his request to depose DCHS’s counsel in the C.R.C.P. 60(b) proceeding. Because DCHS’s attorneys submitted affidavits concerning when they learned of the expert witness’s false testimony, a contested fact in the C.R.C.P. 60 proceeding, father argues that he should have been permitted to depose them. We find no abuse of discretion.

Discovery rulings, even rulings limiting discovery, are within the discretion of the trial court and will not be disturbed absent an abuse of discretion. An abuse of discretion occurs only when the trial court’s decision is manifestly arbitrary, unreasonable, or unfair. Keybank v. Mascarenas, 17 P.3d 209 (Colo.App.2000).

Here, the trial court did not allow depositions of the DCHS’s attorneys, but permitted father to depose the expert and subpoena the expert’s documents and records. The court also allowed both parties to file affidavits and briefs with attachments.

The trial court was entitled to rely on the attorneys as officers of the court. See Jones v. Dist. Court, 617 P.2d 803 (Colo.1980). In light of the absence of any showing that the attorneys had a personal interest in the outcome of the case, the extent of discovery provided on the matter at issue in the C.R.C.P. 60(b) motion, and the breadth of the trial court’s discretion in discovery matters, we perceive no abuse of discretion in the trial court’s denial of father’s request to depose DCHS’s attorneys.

III.

Father next contends the trial court erred by not disqualifying DCHS’s counsel in the C.R.C.P. 60 proceeding pursuant to Rule 3.7of the Colorado Rules of Professional Conduct (Colo. RPC 3.7). We disagree.

As discussed above, DCHS’s attorneys submitted affidavits in the C.R.C.P. 60 proceeding. However, they did not testify at any hearing.

Colo. RPC 3.7(a) provides that “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.” This rule has been interpreted to permit a lawyer who may be a necessary witness to continue to represent a client “in all litigation roles short of trial advocacy.” Colorado Bar Ass’n Ethics Comm., Formal Op. 78 (revised 1997).

Other jurisdictions that have considered rules similar to Colo. RPC 3.7 have held that their rules did not apply to appeals, summary judgment motions, or pretrial or posttrial proceedings. United States v. Berger, 251 F.3d 894, 906 (10th Cir.2001)(rule substantially similar to Colo. RPC 3.7 does not apply to appeals); Carroll v. Town of University Park, 12 F.Supp.2d 475, 486 (D.Md. 1997)(rule substantially similar to Colo. RPC 3.7does not bar counsel’s affidavits attached to a summary judgment motion), aff'd, 155 F.3d 558 (4th Cir.1998); Columbo v. Puig, 745 So.2d 1106, 1107 (Fla.Dist.Ct.App.1999)(rule substantially similar to Colo. RPC 3.7does not encompass pretrial or posttrial proceedings).

The parties have cited no authority, and our research has revealed none, holding that Colo. RPC 3.7 or similar rules apply to post-trial proceedings.

Accordingly, we conclude Colo. RPC 3.7 did not require the disqualification of the attorneys in the C.R.C.P. 60(b) proceeding.

Further, any error by the trial court in considering the attorneys’ affidavits was harmless because other evidence in the record supported the trial court’s ruling on the C.R.C.P. 60(b) motion. The trial court relied on the expert’s deposition testimony to determine that the expert had been untruthful when she testified she had informed DCHS’s counsel during trial that her testimony was incorrect. Based on this evidence, rather than the affidavits of DCHS’s attorneys, the court found that no fraud had been perpetrated on the court by those attorneys. See Canton Oil Corp. v. Dist. Court, 731 P.2d 687, 694 (Colo.1987)(noting evidence supported trial court’s C.R.C.P. 60(b) ruling even if affidavits of attorneys were disregarded).

Accordingly, we perceive no error in the trial court’s refusal to disqualify DCHS’s attorneys.

IV.

Finally, father contends that the trial court erred in denying his C.R.C.P. 60(b) motion for relief from judgment because DCHS committed a fraud upon the court by knowingly presenting untruthful testimony from an expert witness and because, without the tainted expert testimony, the remaining evidence did not support the judgment terminating his parental rights. We disagree.

C.R.C.P. 60(b) is intended to balance the conflicting principles that litigation must have finality and that justice must be done. It is meant to provide relief from judgment in extraordinary circumstances. State Farm, Mut. Auto. Ins. Co. v. McMillan, 925 P.2d 785 (Colo.1996). The granting or denial of a C.R.C.P. 60 motion is within the discretion of the trial court, and we will not disturb the ruling absent an abuse of discretion. Lakeside Ventures, LLC v. Lakeside Dev. Co., 68 P.3d 516 (Colo.App.2002). We will not set aside a trial court’s factual findings, including its determination of the credibility of witnesses, if competent evidence exists in the record. Kincaid v. Western Operating Co., 890 P.2d 249 (Colo.App.1994).

A.

Father first argues, based on the testimony of the expert witness, that DCHS’s attorneys knew during the trial that the expert witness had testified falsely and they failed to reveal this to the court. The trial court found to the contrary.

The court found the expert’s deposition testimony unbelievable concerning when she had disclosed her error to DCHS’s attorneys. For the following reasons, the trial court found that the expert was untruthful when she testified that she informed the attorneys during trial. First, the witness offered similar testimony in a trial in another jurisdiction that took place after her testimony here. The court found it illogical that the expert would have attempted to correct her testimony in this ease and then again testify falsely in the subsequent case. Second, the expert did not take steps to.document her claimed disclosure, did not notify her supervisor of the error, and did not seek guidance on how to correct her testimony until after problems arose in the other ease. Third, the expert never requested an opportunity to correct the record in this case. The record supports the trial court’s conclusion, and therefore, the court could properly conclude that DCHS’s attorneys had not perpetrated a fraud on the court.

B.

Father next argues that if the admittedly inaccurate testimony of the expert is disregarded, no clear and convincing evidence remains to support the judgment terminating his parental rights, and thus, the trial court erred by denying his C.R.C.P. 60(b) motion. We are unpersuaded.

The trial court found, and the parties agree, that the expert had testified untruthfully in part of her testimony relating to a fact that supported the statistical relevance of her analytical findings. This error undermined her opinion that bullets from the victims’ bodies came from the same source as bullets possessed by father.

However, the court also found that the expert’s chemical analysis of the bullet lead from the victims’ bodies and the bullets possessed by father was still credible. The expert testified that the chemical composition of one victim bullet was identical to five bullets possessed by father, that a second victim bullet was identical to a second set of five bullets possessed by father, and that a third victim bullet was identical to yet a third set of five bullets possessed by father. The court found that this evidence was relevant and persuasive that father killed three victims and caused serious bodily injury to his daughter.

It is the province of the trial court sitting as the fact finder to determine the credibility of a witness and to determine the weight and probative effect of the testimony. Kincaid v. Western Operating Co., supra. The fact finder is entitled to reject part of a witness’s testimony that it finds to be untruthful and still accept other parts that it finds to be credible. Gordon v. Benson, 925 P.2d 775 (Colo.1996).

We must accept the findings of the trier of fact unless they are so clearly erroneous as to find no support in the record. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).

Therefore, it was within the trial court’s province to find that the remainder of the expert testimony had probative value after the untruthful part was disregarded. The probative value may have been reduced when the untruthful part was rejected, but the trial court was entitled to determine the weight of the remaining evidence. The finding of the trial court was based on evidence in the record and was not, as father argues, so illogical that it must be overturned.

The trial court also found that even if the expert’s testimony was entirely disregarded, there was still clear and convincing evidence that father committed the murders. After examining the record, we agree.

When the sufficiency of the evidence is challenged on appeal, we must determine whether the evidence, viewed as' a whole and in the light most favorable to the prevailing party, is sufficient to support the court’s finding. If there is competent evidence to support the court’s finding, we will not disturb it on appeal. See Robinson v. City & County of Denver, 30 P.3d 677 (Colo.App.2000). In a termination of parental rights trial, the sufficiency, probative effect, and weight of the evidence, as well as the inferences to be drawn from the evidence, are the province of the trial court. People in Interest of D.L.C., 70 P.3d 584 (Colo.App.2003).

Circumstantial evidence enjoys the same status as direct evidence. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973).

The following evidence in the record supports the trial court’s conclusion. Father owned a gun that could have been used to commit the murders, and he had gunshot residue on his face and hat and blood on his pants.

Father also had severe financial troubles including over $100,000 in debt, and he was unable to close on a contract to purchase a new home. His wife was apparently unaware of this financial situation and inaccurately believed the family would earn millions of dollars from one of father’s business projects. Father was the primary beneficiary under his wife’s life insurance policies and stood to receive $500,000 in the event of his wife’s death.

Just days before the murders, a suspicious gas leak occurred at the family’s residence. At the time of the gas leak, the wife was home alone with one of the children. Evidence showed the gas line had been tampered with and that father was alone in the basement shortly before the gas leak occurred.

The night of the murders, a neighbor’s surveillance video recorded sounds that an expert identified as gunshots. According to this expert in audio and video analysis, the gun shots occurred twelve to thirteen seconds apart. Two victims were found in an upstairs bedroom and two found in the basement. Father testified that to move in the dark between these two locations the murderer would have had to know where each victim slept. Father had been living at the house and testified that he was quite familiar with the house and that he could move quickly through the house in the dark. Further, the house showed no signs of a forced entry or burglary, and several items, including the wife’s engagement ring, were in plain view, but were left untouched.

Father worked in the oil and gas industry, and his business associate testified that a person’s reputation for integrity and credibility was extremely important in that industry. Father once tried to change his identity in an attempt to leave his family, and shortly before the murders, his wife threatened to reveal this to his business associates.

Father told the police at the crime scene the night of the murders that “[His children] didn’t see anything. They were asleep.” This statement supports an inference that father had known his children were sleeping while the murders were committed because he was present at that time.

Based on this evidence in the record, we conclude that the trial court did not abuse its discretion in finding that evidence other than the tainted expert’s testimony supported the judgment.

Accordingly, the judgment and order are affirmed.

Judge TAUBMAN and Judge CARPARELLI concur.