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People v. Ellsworth7/6/2000
JUDGMENT AFFIRMED
Division II
Taubman and Nieto, JJ., concur
Defendant, Joseph A. Ellsworth, appeals a judgment of conviction entered upon a jury verdict finding him guilty of first degree perjury, forgery, and tampering with evidence. We affirm. While off-duty and driving in Denver, defendant, a Denver police officer, threatened another driver. The other driver, while talking to the police on his cellular telephone, followed defendant to a gas station in Arapahoe County, where defendant purchased gasoline. The other driver then continued to follow defendant until losing track of him in an apartment complex. An Arapahoe County deputy sheriff stopped defendant nearby and arrested him for suspicion of driving under the influence of alcohol (DUI). Defendant refused to take a test to measure his blood alcohol content, and his driver's license was therefore subject to automatic revocation. At the revocation hearing, defendant, among other defenses, attacked the credibility of the other driver and the deputy sheriff, and the jurisdiction of the Arapahoe County sheriff, by presenting a receipt, later shown to be falsified, indicating that he had purchased gasoline at a different station located in Denver. Finding defendant's testimony to be credible, the hearing officer reinstated defendant's license. Upon discovery of the falsification of the gasoline receipt, defendant was charged and convicted of the offenses at issue here.
I.
Defendant contends that the trial court erred by admitting evidence of his demeanor, behavior, and use of profanity during and after his arrest, asserting that the testimony was irrelevant and unfairly prejudicial. We disagree. Evidence is relevant if it has a tendency to make a fact of consequence more or less probable than it would be without the evidence. However, relevant evidence must nevertheless be excluded if its probative value is significantly outweighed by its unfairly prejudicial effect. People v. Scarlett, 985 P.2d 36 (Colo. App. 1998). Evidence is unfairly prejudicial only if it has a tendency to suggest a verdict on an improper basis, such as bias, shock, anger, or sympathy. People v. Nuanez, 973 P.2d 1260 (Colo. 1999). We will not overturn a trial court's decision to admit or exclude evidence unless, in so doing, it abused its discretion. In this context, a trial court abuses its discretion only if its decision is manifestly arbitrary, unreasonable, or unfair. People v. Dunlap, 975 P.2d 723 (Colo. 1999). We have reviewed the testimony that defendant objects to and perceive no abuse of discretion in its admission. Four witnesses testified as to defendant's demeanor, behavior, and use of profanity during and after his arrest. None of the testimony was protracted, and only one of the witnesses repeated any of the profanity used by defendant. All four witnesses briefly characterized defendant as belligerent and verbally abusive towards the arresting and investigating officers. Under the circumstances, we conclude that the evidence was relevant to show, among other things, defendant's motivation for later producing the falsified receipt. At the revocation hearing, to regain his driver's license, defendant was required to show that the deputy lacked a reasonable basis for demanding that he submit to a blood alcohol test. The evidence of defendant's belligerence and profanity was properly admitted at the revocation hearing as evidence of his intoxication. It was therefore relevant in defendant's perjury trial to establish that his motive for producing the falsified receipt and testimony at the revocation hearing might have been to overcome the evidence of his intoxication. Neither are we persuaded that the evidence was unfair
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