The Colorado Court of Appeals issued its opinion in People v. Herdman on June 7, 2012.
Sexual Assault—Expert Testimony—Mental Condition—Involuntary Intoxication—Relevance—Lay Witness Testimony—Hearsay—Deadly Weapon.
Defendant Robert Herdman appealed his judgment of conviction for sexual assault, second-degree kidnapping, and a crime of violence sentence enhancer. The judgment was affirmed and the case was remanded with directions.
Herdman contended that the trial court reversibly erred in admitting testimony of the prosecution’s experts. The prosecution called the bond examiner, the competency examiner, and the sanity examiner to testify regarding the cause of Herdman’s psychological problems and mental state. Pursuant to CRS § 16-8-107(1.5)(a), the prosecution is allowed to introduce evidence developed in the course of a court-ordered examination to rebut mental condition evidence introduced by a defendant to show incapacity to form a culpable mental state. Here, the experts’ testimony regarding Herdman’s cocaine use, psychopathy, narcissism, malingering, and lack of empathy and remorse were relevant, were properly offered to rebut his claim of involuntary intoxication, and were not offered to prove bad character. Further, the admission of this testimony did not violate Herdman’s privilege against self-incrimination.
Herdman next contended that the court reversibly erred in allowing the bond examiner to testify, because the bond examiner’s testimony was irrelevant and highly prejudicial, and amounted to evidence of Herdman’s bad character. However, the bond examiner’s testimony did not pertain to Herdman’s state of mind at the time of the offense. Therefore, any error was harmless.
Herdman contended that the trial court reversibly erred in allowing Sergeant Gallegos to testify that (1) Herdman did not serve in Iraq; (2) he did not have post-traumatic stress disorder; and (3) his behavior after his return from overseas was “rebellious.” Although the testimony about Herman’s service in Iraq was inadmissible hearsay, any error was harmless, and the remainder of the testimony was proper.
Herdman argued that the evidence presented was insufficient to support his convictions for sexual assault and the crime of violence sentence enhancer, because there was no evidence that he used a deadly weapon to cause submission of the victim. The prosecution presented evidence that Herdman showed the victim his knife, threatened to cut her if she did not do as he said, ordered her to an apartment, put the knife beside the bed where she could see it, and then sexually assaulted her. Such evidence was more than sufficient to allow a reasonable jury to conclude that Herdman used, possessed, or threatened to use a deadly weapon and that he then used the weapon to cause the victim’s submission to the sexual assault.
Herdman also argued that his sexual assault conviction must merge into his kidnapping conviction because the former is a lesser-included offense of the latter. A sentence enhancer is not a substantive element of an offense for purposes of double jeopardy analysis. Accordingly, Herdman’s double jeopardy argument failed. The judgment was affirmed and the case was remanded to the trial court to correct the mittimus.
Summary and full case available here.