June 26, 2019

Colorado Court of Appeals: Witness’s Probationary Status Alone Does Not Implicate Defendant’s Right to Cross-Examine

The Colorado Court of Appeals issued its opinion in People v. Margerum on Thursday, April 19, 2018.

Assault—Menacing—Sixth Amendment—Confrontation Clause—Cross-Examination—Probationary Status.

Defendant was alone in a friend’s apartment with the friend’s girlfriend, E.S. When E.S. rejected defendant’s sexual advances, defendant became angry and forced E.S. onto the bed, climbing on top of her and kissing and groping her. Then defendant tried to remove E.S.’s clothing. Eventually he stopped and let E.S. leave the apartment. Defendant then texted his sister, T.M., to come to the apartment. He told her he had a bag of clothes he wanted to give her. T.M. went to defendant’s apartment with her son. Without warning, defendant grabbed her around the neck and began choking her. Defendant then pinned T.M. underneath him and began groping her body. T.M. grabbed a glass candleholder and hit defendant on the back of the head, which allowed her to escape with her son. A jury convicted defendant of unlawful sexual contact without physical force as to E.S., and third-degree assault and menacing with a deadly weapon as to T.M.

On appeal, defendant argued that the trial court violated his rights under the Confrontation Clause by not allowing him to cross-examine E.S. concerning her probationary status. A witness’s probationary status alone does not implicate a defendant’s constitutional right to cross-examine the witness on potential bias or motive. Rather, some logical connection between the probationary status and the witness’s motive for testifying is required. Here, at the time of defendant’s trial, E.S. was serving a one-year probation in another county for a forgery conviction. Defendant pointed to no other facts that would logically connect E.S.’s probationary status with her testimony at his trial. Accordingly, the trial court did not err in denying defendant’s request to cross-examine E.S. regarding her probationary status because these facts do not show that E.S.’s testimony might have been influenced by a promise or expectation of leniency in exchange for favorable testimony.

Defendant next argued that there was insufficient evidence to support his menacing conviction. He contended that (1) the menacing statute requires that a defendant place the victim in fear before any actual injury, and (2) the conduct underlying his menacing conviction cannot be the same single act as the conduct underlying his assault conviction. The statute does not require that the victim be placed in fear before she in injured; it is thus irrelevant whether the victim is injured before, during, or after she is placed in fear of imminent bodily harm, if defendant’s actions place or attempt to place her in such fear. Defendant presented no basis to depart from established law that a person can commit two crimes with one act. The evidence supports defendant’s menacing conviction.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

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