September 22, 2018

Colorado Court of Appeals: Double Jeopardy Implicated where Defendant Convicted of DARP at First Trial and ADARP at Second Trial

The Colorado Court of Appeals issued its opinion in People v. Wambolt on Thursday, June 28, 2018.

Aggravated Driving After Revocation Prohibited—Driving Under the Influence—Driving Under Restraint—Driving After Revocation Prohibited—Driving While Ability Impaired—Lesser Included Offense—Merger—Double Jeopardy—Motion to Suppress—Illegal Arrest—Miranda—Fifth Amendment.

Defendant was charged with aggravated driving after revocation prohibited (ADARP), driving under the influence (DUI), and driving under restraint (DUR). During a first trial, the jury was instructed on the elements of driving after revocation prohibited (DARP) and given a special interrogatory verdict form on the ADARP charge. The jury returned guilty verdicts on DARP and DUR, but hung on the DUI charge, and thus did not complete the ADARP special interrogatory. Defendant was retried in a two-phase trial. In the first phase, the jury returned a guilty verdict on driving while ability impaired (DWAI), a lesser included offense of DUI. In the second phase, the jury completed a special interrogatory finding that the prosecution had proved the ADARP charge. The trial court entered convictions for ADARP, DUR, and DWAI.

On appeal, defendant contended that he was unconstitutionally tried twice for the same offense when he was retried on the ADARP charge after the first jury had convicted him of DARP. Here, defendant was effectively tried for DARP twice and he was not properly tried for ADARP. Thus, under the circumstances of this case, defendant was unconstitutionally tried twice for the same offense. This error was obvious and substantial and significantly undermined the reliability of defendant’s ADARP conviction.

Defendant also argued that the trial court plainly erred in entering convictions for DUR and DARP because those convictions should have merged. DUR is a lesser included offense of DARP. Thus, the trial court erred in entering both convictions. However, because the relevant law in this area has undergone significant recent change, the error here was not plain because it was not obvious. The trial court did not plainly err in entering the DUR and DARP convictions.

Defendant further contended that the trial court erred in denying his motion to suppress statements he made after being detained. He argued that his statements resulted from an unlawful detention and were taken in violation of his Miranda rights. Here, although the officer found defendant compliant and “very easy to get along with,” he handcuffed him at gunpoint and placed him in the back of the patrol car. Defendant thereafter was removed from the patrol car, his handcuffs were removed, and he was read his Miranda rights and voluntarily waived them. Although defendant was unconstitutionally arrested, the statements were admissible because they were sufficiently attenuated from the unlawful arrest.

The judgment of conviction for DWAI and DUR was affirmed, the conviction for ADARP was vacated, and the case was remanded for the trial court to reinstate the DARP conviction and correct the mittimus.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Unlawful Sexual Contact is Lesser Included Offense of Sexual Assault

The Colorado Supreme Court issued its opinion in Page v. People on Monday, September 11, 2017.

Double Jeopardy—Lesser Included Offenses.

In this case, the supreme court considered whether unlawful sexual contact is a lesser included offense of sexual assault. Because establishing the elements of sexual assault by means of penetration necessarily establishes the elements of unlawful sexual contact, the Court concluded that unlawful sexual contact is a lesser included offense of sexual assault. Accordingly, the court reversed the judgment of the court of appeals and remanded the case with instructions to vacate defendant’s conviction for unlawful sexual contact.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: No Rational Basis Existed in Evidence to Grant Lesser Included Offense Instruction Request

The Colorado Supreme Court issued its opinion in People v. Naranjo on Monday, September 11, 2017.

Criminal Law—Lesser Non-Included Offenses—Jury Instructions.

The supreme court reviewed the court of appeals’ opinion reversing defendant’s convictions for felony menacing on the ground that defendant was entitled to a jury instruction on the lesser non-included offense of disorderly conduct with a deadly weapon. Under the supreme court’s case law, a defendant is entitled to a jury instruction on a lesser non-included offense where there exists a rational basis in the evidence to simultaneously acquit the defendant of the greater charged offense and convict the defendant of the lesser offense. Here, based on the evidence presented at trial, there was no rational basis for the jury to simultaneously acquit defendant of felony menacing and convict him of disorderly conduct. The court of appeals’ judgment was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Denial of Defendant’s Requested Lesser Included Offense Instruction Not Harmless Error

The Colorado Supreme Court issued its opinion in People v. Rock on Monday, September 11, 2017.

Criminal Law—Lesser Included Offenses.

The People sought review of the court of appeals’ judgment reversing Rock’s convictions for second degree burglary and theft. The trial court denied Rock’s request for an additional, lesser included offense instruction on second degree criminal trespass on the ground that second degree criminal trespass is not an included offense of second degree burglary. The supreme court affirmed the court of appeals’ reversal. The court held that (1) the district court erred in denying Rock her requested instruction on second degree criminal trespass on the ground that it was not a lesser included offense of the charged offense of second degree burglary, and (2) erroneously denying Rock’s requested instruction was not harmless with regard to either of her convictions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Criminal Mischief is Not Lesser Included Offense of First Degree Arson

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

First Degree Arson—Criminal Mischief—Lesser Included Offense—Res Gestae Evidence—Impeachment—CRE 608(b)—Witness Disclosure.

Welborne and his mother set fire to the house in which they lived and filed false insurance claims based on the fire. Welborne was convicted and sentenced to six years in prison for arson, six years for criminal mischief, six years for attempted theft, and eight years for theft—all to be served concurrently.

On appeal, Welborne contended that the trial court erred by admitting evidence of his earlier insurance claims to the same company. The prior false insurance claims involved the same company, related to a material fact, and were logically relevant to the charges. Evidence of Welborne’s false but fruitful insurance claims was highly probative of whether he acted to deceive the same insurance company with the intent to permanently deprive it of money. The trial court instructed the jury on the limited purposes of the evidence. The evidence was properly admitted under CRE 404(b) and as res gestae evidence.

Welborne further contended that the trial court committed reversible error by permitting the prosecutor to impeach him with his California theft conviction. The trial court acted within its discretion in admitting evidence of Welborne’s prior theft offense under Rule 608(b) as probative of truthfulness or dishonesty. Although the prosecutor presented evidence of the conviction rather than the underlying facts, any error was harmless.

Welborne also argued that the trial court erred by barring him from calling a witness to impeach the testimony of his former girlfriend. Disclosure of this witness was not timely, and Welborne’s offer of proof did not show that the testimony was admissible or that the witness would impeach the girlfriend’s testimony that Welborne had started the fire.

Finally, Welborne contended that criminal mischief is an included offense of first degree arson and, therefore, those convictions must merge. Because criminal mischief requires proof that the acts were committed in a single criminal episode, while first degree arson does not, criminal mischief is not an included offense of first degree arson.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Statement She Was Sorry Sufficient Evidence to Prove Guilt

The Colorado Court of Appeals issued its opinion in People v. Ramos on Thursday, July 27, 2017.

Theft—Evidence—C.R.S. § 18-4-401(4)(a) —Jury Interrogatories—Lesser Included Offense.

Defendant was treasurer of the Bennett Elementary School Parent, Teacher, and Student Association (PTSA). The PTSA held the Believe Fundraiser, and defendant failed to deposit all of the proceeds from the fundraiser into the PTSA’s bank account. The verdict form required the jury to find whether defendant was guilty of theft (two or more within six months) for cash taken from three different fundraisers and instructed the jury to answer three interrogatories. The jury found defendant guilty, but it answered yes to only the Believe Fundraiser interrogatory.

On appeal, defendant contended that the evidence was insufficient to convict her of theft from the Believe Fundraiser. Based on evidence that defendant told the PTSA secretary that she had deposited $19,760.65 into the PTSA account when only $16,473.21 was actually deposited, and defendant’s statement later to the secretary that she was sorry and wanted to make it right, a reasonable person could conclude that defendant knowingly retained funds from the Believe Fundraiser and intended to permanently deprive the PTSA of the value of the funds.

Defendant also contended that the trial court erred in rejecting her proposed instruction paragraph for the verdict form. C.R.S. § 18-4-401(4)(a) required the prosecution to prove all of the thefts aggregated into a single count. Because the jury only answered yes to one of the interrogatories, its verdict conflicts with the statute. Therefore, the jury improperly convicted defendant of aggregated theft without finding that she committed all three of the thefts aggregated in one count. But a single act of theft is a lesser included offense of aggregated theft under C.R.S. § 18-4-401(4)(a), and the prosecution proved the elements of the lesser included offense.

Defendant further contended that the trial court erred in admitting the PTSA secretary’s testimony. However, the PTSA secretary properly gave lay opinion testimony under CRE 701.

The judgment of conviction for theft under C.R.S. § 18-4-401(4)(a) was vacated and the case was remanded to the trial court with directions to enter a conviction for a single count of theft under C.R.S. § 18-4-401(1) and (2)(f).

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: No Reasonable Probability that Failure to Instruct Jury on Recklessness Contributed to Conviction

The Colorado Supreme Court issued its opinion in People v. Roman on Monday, June 19, 2017.

Jury Instructions—Lesser Included Offenses—Harmless Error.

The People sought review of the court of appeals’ judgment reversing Roman’s conviction for first degree assault. The trial court instructed the jury on the lesser included offense of second degree assault committed by intentionally causing bodily injury with a deadly weapon, but it denied Roman’s request for an additional lesser-included-offense instruction on second degree assault committed by recklessly causing serious bodily injury with a deadly weapon. The court of appeals reversed, concluding both that the trial court erred in denying Roman’s requested additional lesser-included-offense instruction and that the error was not harmless.

The supreme court reversed the judgment of the court of appeals. In light of the evidence presented at trial and the instructions actually provided to the jury, there was no reasonable possibility that the failure to instruct on reckless second degree assault contributed to defendant’s conviction of first degree assault. Any error in that regard would therefore have been harmless.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court Properly Denied Request for Lesser-Included-Offense Instruction where Lesser Offense Not Included

The Colorado Supreme Court issued its opinion in People v. Rock on Monday, June 5, 2017.

Jury Instructions—Lesser Offenses.

The People sought review of the court of appeals’ judgment reversing Rock’s convictions for second-degree burglary and theft. See People v. Rock, No. 11CA1936 (Colo. App. July 3, 2014). The trial court denied Rock’s request for an additional, lesser included offense instruction on second-degree criminal trespass, on the ground that second-degree criminal trespass is not an included offense of second-degree burglary. The court of appeals reversed, concluding that in denying Rock’s request, the trial court erred and that the error was not harmless with regard to either of Rock’s convictions. The supreme court reversed the judgment of the court of appeals because second-degree criminal trespass is not a lesser included offense of second-degree burglary under the strict elements test, as clarified in Reyna-Abarca v. People, 2017 CO 15, 390 23 P.3d 816.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: No Error in Convictions for Being Accessory and Complicitor to Same Crime

The Colorado Supreme Court issued its opinion in Montoya v. People on Monday, May 15, 2017.

Extreme Indifference Murder—Self-Defense—Accessory to Crime—Invited Error.

Montoya petitioned for review of the court of appeals’ judgment affirming his convictions for attempted extreme indifference murder, reckless manslaughter, criminally negligent homicide, and accessory to crime. See People v. Montoya, No. 06CA1875 (Colo. App. Sept. 13, 2012). Montoya and his cousin were tried together for the shooting death of a woman at a party, in the course of which they each fired a number of rounds in the direction of other party-goers. In a separate appeal to the court of appeals, Montoya’s homicide convictions were initially reversed for failure to properly instruct concerning self-defense against multiple assailants, but upon remand for reconsideration in light of intervening supreme court jurisprudence, all of his convictions were affirmed, not only with regard to the disputed issue of multiple assailants but against a variety of other assignments of error as well. Montoya’s subsequent petition for a writ of certiorari was partially granted by this court.

The supreme court affirmed the judgment of the court of appeals. The court held that (1) there was sufficient evidence to support Montoya’s conviction of attempted extreme indifference murder; (2) Montoya was barred from challenging on appeal the sufficiency of the evidence supporting his conviction for being an accessory to crime, a lesser non-included offense presented to the jury at his request; and (3) Montoya’s simultaneous convictions of reckless manslaughter and accessory to crime neither merged nor required concurrent sentences.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Double Jeopardy Claims May Be Raised for the First Time on Appeal

The Colorado Supreme Court issued its opinion in Reyna-Abarca v. People on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In these four cases, which raise the ultimate question of whether driving under the influence (DUI) is a lesser included offense of either vehicular assault-DUI or vehicular homicide-DUI, the Colorado Supreme Court addressed (1) whether a double jeopardy claim can be raised for the first time on direct appeal, and (2) what test courts should apply in evaluating whether one offense is a lesser included offense of another.

The court concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error. In so holding, the court rejected the People’s contention that defendants waive their double jeopardy claims unless they raise them at trial through a Crim. P. 12(b)(2) challenge to defective charging documents.

The court further concluded that the applicable test for determining whether one offense is a lesser included offense of another is the strict elements test articulated in Schmuck v. United States, 489 U.S. 705, 716 (1989). Under this test, an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense. Applying this test to the cases before it, the court concluded that DUI is a lesser included offense of both vehicular assault-DUI and vehicular homicide-DUI, and thus, defendants’ DUI convictions must merge into the greater offenses. The court further concluded that in not merging such offenses, the trial courts plainly erred and that reversal of the multiplicitous convictions is therefore required.

Accordingly, the court affirmed the divisions’ rulings in People v. Reyna-Abarca, No. 10CA637 (Colo.App. Aug. 1, 2013), and People v. Hill, No. 12CA168 (Colo.App. Aug. 8, 2013), that appellate courts review unpreserved double jeopardy claims for plain error, but reversed the portions of the judgments in those cases concluding that DUI is not a lesser included offense of vehicular assault-DUI, and remanded for further proceedings consistent with the opinion. Similarly, the Court reversed the portion of the judgment in People v. Medrano-Bustamante, 2013 COA 139, ___ P.3d ___, concluding that DUI is not a lesser included offense of vehicular assault-DUI and vehicular homicide-DUI, and remanded for further proceedings. The Court affirmed the judgments in those cases in all other respects, and affirmed in full the judgment in People v. Smoots, 2013 COA 152, ___ P.3d ___.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Courts Should Review Unpreserved Double Jeopardy Claims for Plain Error

The Colorado Supreme Court issued its opinion in Scott v. People on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In this case, the supreme court reviewed two issues: (1) whether a double jeopardy claim can be raised for the first time on appeal, and (2) whether defendant William Costello Scott’s convictions for both aggravated robbery-menaced with a deadly weapon (“aggravated robbery-menaced victim”) and menacing amounted to plain error. In light of the Colorado Supreme Court’s opinion in Reyna-Abarca v. People, 2017 CO 15, ___ P.3d ___, also decided on February 27, the court concluded here, contrary to the division majority below, People v. Scott, No. 08CA2327 (Colo. App. Nov. 8, 2012), that unpreserved double jeopardy claims can be raised for the first time on appeal and that courts should ordinarily review such claims for plain error. The court further concluded, however, that in the circumstances presented here, any error that might have occurred when the trial court entered judgment on Scott’s convictions for both aggravated robbery-menaced victim and menacing was not obvious, and thus did not amount to plain error.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Court of Appeals Correctly Evaluated Unpreserved Double Jeopardy Claim for Plain Error

The Colorado Supreme Court issued its opinion in Zubiate v. People on Monday, February 27, 2017.

Plain Error Review—Double Jeopardy—Lesser Included Offenses.

In this case, the Colorado Supreme Court addressed (1) whether a defendant may raise his or her unpreserved double jeopardy claim for the first time on appeal and, if so, what standard of review applies, and (2) whether driving under revocation (DUR) is a lesser included offense of aggravated driving after revocation prohibited (aggravated DARP). In Reyna-Abarca v. People, 2017 CO 15, ¶¶ 2–3, ___ P.3d ___, also decided on February 27, the court (1) concluded that unpreserved double jeopardy claims can be raised for the first time on appeal and that appellate courts should ordinarily review such claims for plain error and (2) clarified the applicable test to be employed in determining whether one offense is a lesser included offense of another.

Applying those rulings here, the court concluded that the division in Zubiate v. People, 2013 COA 69, ___ P.3d ___, correctly (1) conducted plain error review of Zubiate’s unpreserved double jeopardy claim, and (2) determined that DUR is not a lesser included offense of aggravated DARP, although the court’s analysis differs somewhat from that of the division. Accordingly, the court affirmed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.