September 21, 2017

Colorado Court of Appeals: Urinalysis Test Results Not “Public Record” for Forgery Statute Purposes

The Colorado Court of Appeals issued its opinion in People v. Carian on Thursday, August 10, 2017.

Forgery—Urinalysis Results—Attempt to Influence a Public Servant—Probation—Res Gestae Evidence—Prosecutorial Misconduct.

Carian was on probation for possession of a controlled substance, and mandatory drug tests were a condition of his probation. Carian completed some tests, but missed others and also returned tests with positive results. When Carian’s probation officer served him with a revocation complaint for various probation violations, Carian handed her fraudulent urine drug test results from Wiz Quiz, an unapproved urinalysis facility. Carian was convicted of forgery and attempting to influence a public servant.

On appeal, Carian contended that the evidence was insufficient to convict him of forgery under C.R.S. § 18-5-102(1)(d) because the urinalysis results at issue were not a “public record” or “an instrument filed or required by law to be filed or legally fileable in or with a public office or public servant.” While the urinalysis results from Wiz Quiz were “instrument[s]” within the reach of the statute, they were not filed, required by law to be filed, or legally fileable, thus the evidence did not support his forgery conviction.

Carian also contended that the trial court erred when it admitted evidence under the doctrine of res gestae showing that he had been previously convicted of a drug offense. Regardless of whether the admission of such evidence was error, it did not substantially influence the verdict or affect the fairness of the proceedings regarding his conviction for attempting to influence a public servant. Thus, any error in its admission was harmless.

Carian further contended that the prosecutor committed misconduct, during both his opening statement and his rebuttal closing, by asking the jury to hold Carian accountable for wasting public resources and “squandering” the opportunity to rehabilitate himself on probation. Although the prosecutor’s statements were improper, the admission of such statements does not warrant reversal under either plain or harmless error review.

The judgment on the forgery conviction was vacated, and the judgment on attempt to influence a public servant conviction was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Confrontation Rights Violated when Defendant Not Allowed to Ask Victim About Impairment

The Colorado Court of Appeals issued its opinion in People v. Dunham on Thursday, May 19, 2016.

The victim and his friend were involved in a confrontation in an apartment complex parking lot in the early morning hours of July 8, 2012. At some point, Defendant pointed a gun at the victim and his friend. The confrontation ended when Defendant pointed his gun into the air and fired. After leaving the parking lot, the victim was shot several times at a nearby intersection. The only witnesses besides Victim and Defendant were a husband and wife who saw a man running from the scene of the shooting but could not identify the shooter.

Defendant was charged with attempted first degree murder after deliberation, attempted second degree murder, first degree assault, and a crime of violence sentence enhancer. At trial, defense counsel sought to admit evidence that Victim had consumed methamphetamine the night of the shooting as res gestae evidence under CRE 404(b). The issue arose several times during trial and each time the trial court denied the defense’s request. Defendant was acquitted of the first degree murder charge but convicted on the other charges and sentence enhancer. He appealed, contending the trial court committed constitutional error by denying his requests to question the victim about his methamphetamine use.

The Colorado Court of Appeals found that the trial court erred in finding the evidence was insufficient to allow the jury to consider the matter, and further found that CRE 104(a) governed the relevance of the evidence. The court of appeals found that the evidence was sufficient to allow a jury to consider the statements made by Victim to police and hospital staff regarding his methamphetamine use. The court further found that the error was constitutional because Defendant’s Confrontation Clause rights were violated.

The court reversed and remanded for a new trial on the charges on which Defendant was convicted.

Colorado Court of Appeals: Defendant Has No Right to Access Witness’s Competency Evaluation

The Colorado Court of Appeals issued its opinion in People v. Zapata on Thursday, May 19, 2016.

Defendant’s ex-girlfriend claimed the owner of the convenience store at which she worked had sexually harassed her, including grabbing her crotch, buttocks, and breasts. Defendant and his friend of six months, Murillo, went to the convenience store late one night, and Murillo quickly walked behind the counter and stabbed the owner’s son with a knife. A high-quality surveillance video showed the ensuing struggle, with Defendant watching from the other side of the counter. When the owner’s son began hitting Murillo on the head with a hammer, he pleaded with Defendant for help, and Defendant turned and ran.

Defendant was charged with conspiracy to commit first degree murder, attempted first degree murder, and first degree assault. Murillo, who suffered permanent brain damage as a result of the incident, was charged separately. He pleaded guilty in his case and testified at Defendant’s trial, remarking that he was testifying against Defendant because Defendant had left him at the store to die. The jury found Defendant guilty of attempted second degree murder and first degree assault.

He appealed, contending the district court erred by not requiring the prosecution to disclose statements Murillo made during competency evaluations in his separate trial and by admitting res gestae evidence of defendant’s controlling and threatening behavior with his ex-girlfriend. The court of appeals found no error. As to the competency evaluations, the district court ruled that Defendant was not entitled to them as a matter of law, and the court of appeals agreed. The court noted that Murillo had a valid privilege that he did not waive. The court further found that Defendant’s Confrontation Clause rights did not trump Murillo’s privilege.

The court of appeals also found that if there was error in admitting the res gestae evidence regarding Defendant’s controlling behavior, it was harmless. The court noted that even without the res gestae evidence, the prosecution’s evidence in the case was strong and the defense theory was weak, therefore even if the evidence was erroneously admitted, any error was harmless.

The judgment of conviction was affirmed.

Colorado Court of Appeals: Res Gestae Evidence Appropriate when it Shows Defendant’s Prior Conduct with Victim

The Colorado Court of Appeals issued its opinion in People v. Galang on Thursday, May 5, 2016.

Victim moved to California from the Philippines in 2004, and met Defendant at work that same year. Defendant and Victim maintained a “very close” relationship, and when Victim moved to Colorado and married, she continued to see Defendant when she visited California.

In 2011, Victim began receiving emails from a Yahoo email account under the name “Holycrap Imbatman” (Batman). Batman requested that Victim send photos and videos of herself doing sexual acts, and threatened to tell immigration officials she had “married for papers” or tell her then-boyfriend she was having sex with other men if she did not send the photos and videos.

Victim reported the emails to the Douglas County Sheriff’s Office, and that office continued corresponding with Batman as if it were the victim. The sheriff’s office set up a rendezvous with Batman in California, and defendant showed up. Defendant was arrested and charged with computer crime, extortion, criminal impersonation, stalking, and harassment.

The trial court dismissed the computer crime charge and Defendant was convicted on the other four charges. He appealed, and the People cross-appealed the trial court’s dismissal of the computer crime charge.

The court of appeals disagreed with defendant’s contention that the trial court erred in admitting evidence of his prior requests for naked pictures of Victim. On plain error review, the court of appeals found the evidence was admissible res gestae evidence. The evidence tended to show why defendant would have wanted naked pictures of the victim, because he had asked for such pictures before.

As to the People’s cross-appeal, the court of appeals agreed that the trial court should not have dismissed the computer crime charge, and disapproved of the dismissal. The trial court asserted that the charge was unnecessary because there was not an assigned penalty, but the court of appeals disapproved of this reasoning. The court of appeals noted that the elements of computer crime were met, and although Victim suffered no damages, the court of appeals read the statute as not requiring a showing of damages. The court of appeals disapproved of the trial court’s judgment of acquittal on the computer crime charge.

The judgment of conviction was affirmed and the computer crime acquittal was disapproved.

Colorado Court of Appeals: Evidence of Flight Admissible as Res Gestae, Not Other Bad Act Evidence

The Colorado Court of Appeals issued its opinion in People v. Gee on Thursday, October 22, 2015.

Evidence of Flight—CRE 404(b)—CRE 401—Habitual Criminal—Extended Proportionality Review—Motion for New Trial.

Gee, Wilson, and Ray went to the victim’s apartment with the intent to rob him. The victim was shot five times. When Gee and three others in his vehicle were located, the police retrieved evidence of the crime in the vehicle. Gee was convicted of first-degree assault with a deadly weapon, first-degree burglary as a crime of violence, and aggravated robbery with a deadly weapon. Shortly after sentencing, he filed a motion for a new trial, which was denied.

On appeal, Gee contended that the trial court erred in admitting evidence that he fled to Michigan while awaiting trial. Gee asserted that this evidence was subject to CRE 404(b) as evidence that he knowingly violated a bail bond conditions or knowingly failed to appear for trial or other proceedings, and that the prosecution failed to provide pretrial notice of its intent to introduce the evidence. However, evidence of Gee’s flight was relevant under CRE 401 because it was res gestaeevidence, relevant to show consciousness of guilt, and therefore it was not subject to CRE 404(b).

Gee also contended that the trial court erred in adjudging him a habitual criminal. Although Gee was a juvenile when he committed the prior offense of conspiracy, he pleaded guilty as an adult and was convicted within 10 years of the charged offense, which satisfied the habitual criminal statute. Therefore, the conspiracy conviction qualified as a predicate offense.

Gee further argued that the trial court erred in denying his request for an extended proportionality review of his sentence. Because none of the imposed sentences raised an inference of gross disproportionality, the trial court did not err in denying Gee’s request.

Finally, Gee argued that the trial court erred in denying his motion for a new trial. As grounds, Gee stated that both Wilson and Ray had recently made statements that exculpated him. However, new testimony by a co-defendant is not newly discovered evidence, and even if it was found to be newly discovered evidence, the trial court did not abuse its discretion in finding that this evidence probably would not result in an acquittal on retrial due to the overwhelming evidence against Gee. The judgment, sentence, and order were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.