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                                                         ADVANCE SHEET HEADNOTE
                                                                   February 20, 2018

                                        2018 CO 13

No. 15SC3, Pernell v. People—Criminal Law—Harmless Error.

       The supreme court reviews the court of appeals’ opinion affirming the

defendant’s conviction for burglary, kidnapping, sexual assault, and other offenses.

The court of appeals held that although the trial court erred by admitting a victim’s

out-of-court statements as excited utterances under CRE 803(2), the trial court’s error

did not require reversal because the statements were admissible as prior consistent

statements to rehabilitate the victim’s credibility after defense counsel attacked it during

his opening statement.

       The supreme court concludes that any error in the admission of the victim’s

out-of-court statements was harmless because there is no reasonable possibility that the

admission of these statements contributed to the defendant’s conviction. Accordingly,

the supreme court declines to address whether defense counsel’s opening statement

opened the door to the admission of the victim’s out-of-court statements and expresses

no opinion on this issue. The supreme court therefore affirms the judgment of the court

of appeals, albeit on different grounds.
                     The Supreme Court of the State of Colorado
                     2 East 14th Avenue • Denver, Colorado 80203

                                       2018 CO 13


                         Supreme Court Case No. 15SC3
                      Certiorari to the Colorado Court of Appeals
                       Court of Appeals Case No. 12CA510
______________________________________________________________________________

                                      Petitioner:

                            Christopher Alexander Pernell,

                                          v.

                                      Respondent:

                       The People of the State of Colorado.
______________________________________________________________________________

                              Judgment Affirmed
                                    en banc
                               February 20, 2018
______________________________________________________________________________

Attorneys for Petitioner:
Berg Hill Greenleaf & Ruscitti, LLP
Sean James Lacefield
 Denver, Colorado

Attorneys for Respondent:
Cynthia H. Coffman, Attorney General
Melissa D. Allen, Senior Assistant Attorney General
 Denver, Colorado




JUSTICE MÁRQUEZ delivered the Opinion of the Court.
¶1     A jury convicted Defendant Christopher Pernell of several charges, including

burglary, kidnapping, and sexual assault. The prosecution alleged that Pernell showed

up at his ex-wife’s house uninvited; forced his way into her home; threatened her and

her boyfriend at gunpoint; forced her to have sexual intercourse; and prevented her

from fleeing.    At trial, the prosecution presented multiple witnesses, including the

ex-wife, the boyfriend, and a police officer who investigated the incident, as well as

corroborating physical evidence. Pernell did not testify or present evidence at trial. His

theory of defense was that the ex-wife and the boyfriend fabricated the story of the

incident. Consistent with this theory, defense counsel told the jury during opening

statements that the incident, as described by the ex-wife and the boyfriend, “didn’t

happen” and that the ex-wife and the boyfriend “concoct[ed] their story to get [Pernell]

out of their lives.”

¶2     An officer who testified at trial recounted the ex-wife’s description of the

incident to him.       Pernell objected to this testimony, arguing that the ex-wife’s

out-of-court statements to the officer constituted inadmissible hearsay. The trial court

admitted these statements as excited utterances under CRE 803(2). On appeal, Pernell

argued, among other things, that the trial court had reversibly erred in admitting the

ex-wife’s statements.

¶3     The court of appeals affirmed the judgment of conviction. People v. Pernell, 2014

COA 157, ___ P.3d ___. As relevant here, the court agreed with Pernell that the trial

court erred in admitting the ex-wife’s out-of-court statements as exited utterances under


                                            2
CRE 803(2), but concluded that the error did not require reversal because the statements

were nonetheless admissible as prior consistent statements to rehabilitate the ex-wife’s

credibility after Pernell had attacked it. Id. at ¶ 37. In so ruling, the court of appeals

reasoned that defense counsel’s opening statement that the ex-wife fabricated her story

opened the door for the admission of her out-of-court statements. Id. at ¶ 40. We

granted Pernell’s petition for a writ of certiorari to review whether a defendant’s

opening statement can open the door to admit otherwise inadmissible evidence. 1

¶4    However, upon review of the trial record, we conclude that any error in the

admission of the ex-wife’s out-of-court statements was harmless because there is no

reasonable possibility that the admission of these statements contributed to Pernell’s

conviction. Accordingly, we decline to address whether defense counsel’s opening

statement opened the door to the admission of the ex-wife’s out-of-court statements and

express no opinion on this issue.       We therefore affirm the judgment of the court of

appeals, albeit on different grounds.

                           I. Facts and Procedural History

¶5    The People charged Defendant Christopher Pernell with two counts of second

degree kidnapping, one count of sexual assault, one count of first degree burglary, two

counts of menacing, one count of violation of a protection order, and three




1 We granted certiorari to review the following issue: “Whether, as a matter of first
impression, a defendant’s opening statement can ‘open the door’ to otherwise
inadmissible evidence.”
                                              3
crime-of-violence sentence enhancers. The charges stemmed from an incident on the

night of August 1, 2010, involving Pernell, his ex-wife, and the ex-wife’s boyfriend. At

the time of the incident, Pernell and the ex-wife had divorced, and Pernell was subject

to a court-issued protection order prohibiting him from harassing, intimidating,

threatening, or molesting the ex-wife, and requiring him to stay at least 100 yards away

from her at all times.

¶6        According to the prosecution, Pernell showed up at his ex-wife’s house uninvited

at night.     He forced his way into her home, threatened her and her boyfriend at

gunpoint, forced her to have sexual intercourse after allowing the boyfriend to leave,

and prevented her from fleeing. At trial, the prosecution presented several witnesses,

including the ex-wife, the boyfriend, and a police officer who investigated the incident.

The prosecution also introduced corroborating physical evidence.

¶7        Pernell did not testify or present any evidence at trial. Instead, his counsel

argued that although Pernell went to his ex-wife’s home, he did not bring a gun; that

Pernell had consensual sex with his ex-wife; and that the ex-wife and the boyfriend

fabricated the story of the incident. During opening statements, defense counsel stated

that the incident, as described by the ex-wife and the boyfriend, “didn’t happen” and

that the ex-wife and the boyfriend “concoct[ed] their story to get [Pernell] out of their

lives.”

¶8        The prosecution’s first trial witness was Officer Todd Gentry, a police officer

who spoke with the ex-wife the morning after the incident and who investigated her


                                              4
complaint against Pernell. Officer Gentry testified that when he spoke with the ex-wife,

she was “visibly distraught” and “traumatized from the event that had happened 12

hours prior.” When asked to explain what he meant by “distraught,” Officer Gentry

responded, “she was afraid, really to the point of probably being terrified. Her head

was down. Her eyes were down.” Officer Gentry testified that the ex-wife told him

that Pernell came into her home with a gun; threatened her and the boyfriend at

gunpoint; ordered her into the bedroom after allowing the boyfriend to leave; forced

her to have sexual intercourse with him; and stopped her from escaping.

¶9    Pernell objected to Officer Gentry’s testimony regarding the ex-wife’s account of

the incident, arguing that her statements to the officer were inadmissible hearsay. The

trial court overruled the objection, concluding that the ex-wife’s statements to Officer

Gentry “just barely” qualified as excited utterances admissible pursuant to CRE 803(2)

(ostensibly because the officer testified that the ex-wife appeared to be still under the

stress of the incident when she made the statements twelve hours later).        Defense

counsel later moved for a mistrial on the ground that the ex-wife’s statements to Officer

Gentry were improperly admitted; the court denied this motion.

¶10   Both the ex-wife and her boyfriend testified at trial.        According to their

testimony, they were together inside the ex-wife’s house when they heard knocking on

the front door. After the ex-wife opened the front door slightly, Pernell forcefully

pushed the door open, causing the ex-wife to fall backward and scream. Pernell pulled

out a gun and entered the home. Once inside the home, Pernell held the gun to the


                                           5
boyfriend’s head and said, “Bang” or “Bam.” Pernell then moved the gun away from

the boyfriend’s head, ordered the couple to sit at a table, and began questioning the

boyfriend about his relationship with the ex-wife. Eventually, Pernell permitted the

boyfriend to leave the house but told him not to call the police.

¶11    The ex-wife further testified that after the boyfriend left, Pernell ordered her into

the bedroom at gunpoint and told her to take off her clothes. Pernell then forced her to

have sexual intercourse with him, over her continued objection. When Pernell stopped,

the ex-wife grabbed his gun and attempted to escape the house through the front door,

but Pernell stopped her and took back the gun.          Pernell ordered her back to the

bedroom, forced her onto the bed, and held the gun to her head. He left only after she

promised that she would not call the police. After Pernell left her house, the ex-wife

went to the boyfriend’s house, where she spent the night. The following morning, she

reported the incident to the police and spoke with Officer Gentry, among others.

¶12    Other witness testimony supported the ex-wife and the boyfriend’s account of

the incident. One of the ex-wife’s neighbors testified that on the night of the incident,

she saw a man knock on the ex-wife’s door and enter the home. Another witness

testified that as she was standing at a bus stop, she observed a man carrying a bag

under his arm walk up to the ex-wife’s house and knock hard on the door several times.

When she saw the door swing open, she saw the man “dart[] . . . in[to] the house” and

heard a woman scream.




                                             6
¶13   The prosecution also introduced photographs—collected by a sexual assault

nurse examiner who examined the ex-wife the day after the incident—that showed

bruising on the ex-wife’s buttocks and other parts of her lower body. Forensic evidence

indicated that Pernell’s DNA was present in the ex-wife’s vaginal swab.

¶14   Additionally, the prosecution introduced a police recording and transcript of a

pretext call between Pernell and the ex-wife the day after the incident. During this

phone conversation, the ex-wife told Pernell, “[Y]ou pointed a gun at me, threatened to

kill me . . . [y]ou made me have sex with you. I’m, I’m afraid.” Pernell stated, “I know,

I know. That’s the reason I got rid of [the gun] and I, I promise you that my word that

that is done.” Later in the conversation, the ex-wife stated, “You raped me . . . . You

forced me to have sex. You forced me to have sex with you. And I told you I didn’t

want to do it. I begged you not to do it.” Pernell responded, “Um, I, I’m sorry. I wasn’t

in my right frame of mind.”

¶15   As noted above, Pernell did not testify or present any evidence at trial. His

counsel argued that he had consensual intercourse with the ex-wife on the night in

question and that the ex-wife and the boyfriend fabricated the story of the incident.

After presenting this theory in his opening statement, defense counsel vigorously

cross-examined both the ex-wife and the boyfriend. Counsel asked the ex-wife whether

she “came up with this story” with the boyfriend and questioned her motivations for

waiting to report the incident to the police until the following day and for changing into

pants before going to the police station to make the report. During closing arguments,


                                            7
defense counsel again asserted that the ex-wife and the boyfriend had fabricated the

allegations against Pernell, adding that the ex-wife had testified that she attempted to

make her story more “believable” by changing from her skirt into pants before going to

the police station.

¶16    The jury convicted Pernell on all counts as charged, and the trial court sentenced

him to an indeterminate term of fifty-eight years to life in the custody of the

Department of Corrections.

¶17    Pernell appealed the judgment of conviction, arguing, among other things, that

the trial court reversibly erred by admitting Officer Gentry’s testimony regarding the

ex-wife’s out-of-court statements. Pernell argued that the ex-wife’s statements were not

admissible as excited utterances under CRE 803(2).

¶18    The court of appeals affirmed the judgment of conviction. People v. Pernell, 2014

COA 157, ___ P.3d ___. Relevant here, the court agreed with Pernell that the trial court

erred in admitting the ex-wife’s out-of-court statements as exited utterances. Id. at ¶ 35.

The court reasoned that the evidence showed that in the twelve hours that followed the

incident, the ex-wife drove to her boyfriend’s house, spent the night there, told him

about the sexual assault, drove home the following morning, changed clothes, and

drove to the police station where she made the statements at issue. Id. at ¶ 34. The

court concluded that this evidence showed the ex-wife had “‘several independent

interludes of reflective thought’ that rendered her statements less than spontaneous.”

Id. (quoting People v. Stephenson, 56 P.3d 1112, 1116 (Colo. App. 2001)).


                                            8
¶19   However, the court of appeals held that reversal was not required because the

statements were admissible on an alternative basis, namely, as prior consistent

statements to rehabilitate the ex-wife’s credibility after Pernell had attacked it. Id. at

¶ 37 (citing People v. Eppens, 979 P.2d 14, 21 (Colo. 1999) (referring to the “generally

accepted non-hearsay use of prior consistent statements for rehabilitative purposes”

under common law)).2 Although the ex-wife’s out-of-court statements were admitted

before the ex-wife testified, the court of appeals concluded that defense counsel’s

accusations in his opening statement that the ex-wife fabricated her story opened the

door to the admission of her out-of-court statements through Officer Gentry’s

testimony.   Id. at ¶ 40.   The court further opined that even if defense counsel’s

accusations during his opening statement had not opened the door, the ex-wife’s

statements would have been admissible after defense counsel’s cross examination of the

ex-wife.   Id. at ¶ 41.   Therefore, the court reasoned, any error in the premature

admission of this evidence was harmless. Id.

¶20   Pernell’s petition for certiorari review followed.




2 Because the court of appeals determined the ex-wife’s out-of-court statements to
Officer Gentry were admissible as prior consistent statements to rehabilitate her
credibility after Pernell had attacked it, it did not address whether the ex-wife’s
statements would have been admissible under CRE 801(d)(1)(B), which provides that a
prior consistent statement by a witness subject to cross examination that is offered to
rebut a charge of recent fabrication or improper influence or motive is not hearsay. See
Pernell, ¶ 37 n.2.
                                            9
                                      II. Analysis

¶21   Although we granted certiorari in this case to review whether defense counsel’s

opening statement opened the door to the admission of the ex-wife’s out-of-court

statements to Officer Gentry, we conclude that we need not decide this issue. Upon

review of the trial record, we conclude that any error in the admission of the ex-wife’s

statements was harmless. Accordingly, we affirm the judgment of the court of appeals

on different grounds and decline to reach the issue for which we granted certiorari. See

People v. Saint-Veltri, 945 P.2d 1339, 1342 (Colo. 1997) (declining to reach the issue for

which certiorari was granted because “that issue poses a hypothetical question whose

answer would not necessarily decide the case”).

                               A. Standard of Review

¶22   Because Pernell timely objected to the admission of Officer Gentry’s testimony

recounting the ex-wife’s out-of-court statements, any error that occurred in the

admission of this evidence is subject to non-constitutional harmless error review. See

Nicholls v. People, 2017 CO 71, ¶ 17, 396 P.3d 675, 679; Yusem v. People, 210 P.3d 458,

469 (Colo. 2009).   Under this standard, “an erroneous evidentiary ruling does not

require reversal unless the ruling affects the accused’s substantial rights.” Nicholls,

¶ 17, 396 P.3d at 679. A reviewing court’s “determination [of] whether a trial error has

affected a substantial right of a defendant can only result from a case specific

assessment of the likely impact of the error in question on the outcome of the litigation

as a whole,” People v. Rock, 2017 CO 84, ¶ 22, 402 P.3d 472, 479, and an objected-to trial


                                           10
error is harmless if there is no reasonable possibility that it contributed to the

defendant’s conviction, People v. Roman, 2017 CO 70, ¶ 13, 398 P.3d 134, 138; see also

People v. Gaffney, 769 P.2d 1081, 1088 (Colo. 1989) (an error may be deemed harmless

“[i]f a reviewing court can say with fair assurance that, in light of the entire record of

the trial, the error did not substantially influence the verdict or impair the fairness of the

trial”).

                                        B. Application

¶23        Pernell contends that the court of appeals erred in holding that defense counsel’s

opening statement opened the door for the admission of the ex-wife’s out-of-court

statements because, he argues, opening statements are not evidence and cannot open

the door to the admission of otherwise inadmissible hearsay.            Pernell argues that

because the ex-wife’s statements did not qualify as excited utterances under CRE 803(2),

and because they were inadmissible to rehabilitate the ex-wife’s credibility, the trial

court erred in admitting them. Further, Pernell argues, the erroneous admission of her

statements under these circumstances was not harmless because the ex-wife’s

credibility was “essential” to the prosecution’s case, and the prosecution offered the

statements as “substantive evidence to unfairly bolster [the ex-wife’s] credibility.”

¶24        We need not address whether opening statements may open the door to

otherwise inadmissible evidence because, based on our review of the trial record, we

conclude that any error in the admission of this testimony was harmless.




                                               11
¶25   We have never reduced the question of a trial error’s prejudicial impact to a

specific set of factors. See Crider v. People, 186 P.3d 39, 43 (Colo. 2008). That said, we

have indicated that the strength of the properly admitted evidence supporting the

guilty verdict is clearly an “important consideration” in the harmless error analysis. Id.

Similarly, we have held evidentiary error to be harmless where the properly admitted

evidence overwhelmingly shows guilt. See, e.g., People v. Summitt, 132 P.3d 320, 327–

28 (Colo. 2006) (holding that the trial court’s evidentiary error was harmless in light of

“the overwhelming proof in the record that [the defendant] committed the crimes for

which the jury convicted him”); Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986) (holding

that the trial court’s error in admitting certain expert testimony was harmless given “the

overwhelming evidence of guilt produced in this case”).

¶26   Here, the record contains overwhelming, properly admitted evidence of Pernell’s

guilt. The ex-wife’s account of the events was corroborated both by physical evidence

and by the testimony of several witnesses, including the boyfriend, who directly

observed much of the incident. Moreover, Pernell’s own statements during his phone

conversation with the ex-wife the day after the incident strongly support the ex-wife’s

allegations. At least twice during this conversation, Pernell appeared to admit to the ex-

wife’s version of the incident. In response to the ex-wife’s statement that she was afraid

because he “pointed a gun at [her,] threatened to kill [her, and] made [her] have sex

with [him],” Pernell said, “I know, I know.”           When the ex-wife later stated

unequivocally to Pernell, “You raped me . . . . You forced me to have sex. You forced


                                           12
me to have sex with you. And I told you I didn’t want to do it. I begged you not to do

it,” Pernell did not deny the statements but instead responded, “Um, I, I’m sorry. I

wasn’t in my right frame of mind.”

¶27    We are unpersuaded by Pernell’s contention that the alleged error here was not

harmless because the ex-wife’s credibility was “essential” to the prosecution’s case. We

previously have held that improper bolstering evidence was not harmless where the

victim’s credibility was the “focal issue” of a case. See, e.g., People v. Snook, 745 P.2d

647, 649 (Colo. 1987) (error in admitting expert testimony directly supporting the

victim’s credibility was not harmless where the victim’s credibility was the “focal issue

in the case”). But it is clear from the trial record that the ex-wife’s credibility was not

the focal issue here. In addition to the ex-wife’s testimony, the prosecution’s case

depended on the ex-boyfriend’s testimony, corroborating testimony from other

witnesses, physical evidence, and, perhaps most significantly, Pernell’s own statements

during his phone conversation with the ex-wife—which the prosecution referenced

repeatedly in its closing statement.

¶28    Finally, we note that defense counsel cross-examined Pernell’s ex-wife at length.

This cross-examination spanned over 100 transcript pages, during which defense

counsel questioned her vigorously and extensively regarding her account of the

incident and her motivations to fabricate the story. Under these circumstances, we

conclude there is no reasonable possibility that the admission of the ex-wife’s




                                            13
out-of-court statements compromised the jury’s ability to independently evaluate the

ex-wife’s credibility.

                                   III. Conclusion

¶29    Based on the trial record, we conclude that, even if the trial court erroneously

admitted the ex-wife’s out-of-court statements, there is no reasonable possibility that

this alleged error contributed to Pernell’s conviction. We therefore hold that any such

error was harmless.      We decline to address whether defense counsel’s opening

statement opened the door to the admission of the ex-wife’s out-of-court statements and

express no opinion on this issue. Accordingly, we affirm the judgment of the court of

appeals on different grounds.




                                          14
