July 23, 2019

Colorado Court of Appeals: Semen Not “Intimate Part” so Evidence Insufficient to Support Child Sexual Assault Charges

The Colorado Court of Appeals issued its opinion in People v. Ramirez on Thursday, September 6, 2018.

Sexual Assault on a Child—Sexual Assault on a Child by One in a Position of Trust—Indecent Exposure—Intimate Parts—Semen.

Ramirez was the victim’s foster father. When the victim was 4 years old, Ramirez ordered her and her sister to approach him. He placed their hands in front of him, pulled down his pants and underwear, and masturbated. Ramirez ejaculated into their hands and made them drink the semen. A jury convicted Ramirez of sexual assault on a child (SAOC), sexual assault on a child by one in a position of trust (SAOC-POT), and indecent exposure.

On appeal, Ramirez contended that there was insufficient evidence to support the charges of SAOC and SAOC-POT. To prove the crimes of SAOC and SAOC-POT the prosecution must prove, beyond a reasonable doubt, that “for the purposes of sexual arousal, gratification, or abuse” the defendant knowingly touched the victim’s intimate parts or the victim touched the defendant’s intimate parts. Semen is not an “intimate part” within the meaning of C.R.S. § 18-3-401(2). Here, the victim testified that Ramirez never touched any of her “private parts” and that she never touched his “private parts.” The evidence was insufficient to prove beyond a reasonable doubt that Ramirez committed SAOC or SAOC-POT.

The SAOC and SAOC-POT convictions were vacated and the case was remanded for the trial court to dismiss those charges with prejudice. The convictions for indecent exposure were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Noncustodial Escape Convictions Precluded from Use as Current Conviction for Habitual Offender Purposes

The Colorado Court of Appeals issued its opinion in People v. Jompp on Thursday, September 6, 2018.

Criminal Law—Speedy Trial—Insufficient Evidence—Robbery—Assault—Noncustodial Escape—Jury Instructions—Lesser Nonincluded Offense—Resisting Arrest—Sixth Amendment—Habitual Criminal.

Jompp, the victim, and an acquaintance, B.B., were driving around one evening in a stolen car while high on methamphetamine. After they picked up C.P., they later pulled the vehicle over and a fight broke out between Jompp and the victim. Jompp, B.B., and C.P. left the victim unconscious on the ground, and the victim later died of his injuries. Days later, police found Jompp. After the police handcuffed Jompp, he took off running. After a short chase he was caught and taken to jail. A jury convicted Jompp of third degree assault, robbery, and escape. The trial court adjudicated Jompp a habitual criminal and sentenced him to 48 years in prison.

On appeal, Jompp contended that the court violated his speedy trial rights by continuing his jury trial, over his objection, beyond six months after he pleaded not guilty and 13 months after he was arrested. Here, the trial court acted within its discretion by relying on the prosecution’s offer of proof that they were diligently trying to find B.B. to secure her testimony at trial and by finding that there was a reasonable possibility that B.B. would be available to testify. Therefore, there was sufficient record evidence to support the court’s granting of the prosecution’s request for a continuance. Further, the trial court didn’t plainly err because Jompp’s constitutional right to a speedy trial wasn’t obviously violated.

Jompp also contended that the prosecution presented insufficient evidence that he committed robbery, as either a principal or accomplice. Here, after Jompp attacked the victim, B.B. said she then saw C.P. get out of the car, go over to the victim, and start digging through his pockets. C.P. admitted that she went through the victim’s pockets to get money at Jompp’s direction and she gave him the money she found. Further, the court of appeals rejected Jompp’s argument that the prosecution had to show that the force he used against the victim was calculated to take the victim’s money. The record contained sufficient evidence to support the jury’s conclusion beyond a reasonable doubt that Jompp robbed the victim.

Jompp next contended that the court erred by failing to instruct the jury that it could convict him of the lesser nonincluded offense of resisting arrest. Here, the undisputed record evidence showed that Jompp was in custody. He had already submitted to the police officer’s instructions, was handcuffed, searched, and led by the arm to a patrol car for transport to jail before he ran from the officer. Therefore, the court didn’t abuse its discretion by declining to instruct the jury on the crime of resisting arrest.

Finally, Jompp contended that the court convicted him in violation of his Sixth Amendment right to a jury trial when, at sentencing, it, not the jury, found that he had prior convictions and increased his sentence under the habitual criminal sentencing statute. Jompp failed to preserve this issue at trial, and the prior conviction exception remains well-settled law, so the trial court did not err.

Finally, Jompp contended that his sentence is illegal because his noncustodial escape conviction can’t be deemed a current offense under the habitual criminal statute. The court held that C.R.S. § 18-1.3-801(5) (2013) precluded a noncustodial escape conviction from being used as a current conviction for adjudicating a defendant a habitual criminal under subsection (2) of that section. Therefore, the trial court erred in adjudicating Jompp a habitual criminal on his noncustodial escape conviction.

The judgment of conviction was affirmed. The part of the sentence based on Jompp’s escape conviction was vacated and the case was remanded for resentencing on that conviction. The remainder of the sentence was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Evidence Sufficient to Show Defendant Had No Possessory Interest in Apartment

The Colorado Court of Appeals issued its opinion in People v. Joosten on Thursday, August 8, 2018.

Criminal Law—Jury Instructions—Theory of the Case—Evidence—Burglary.

After Joosten and his girlfriend broke up, Joosten moved out of their shared apartment, but continued to frequently spend the night there and keep some of his belongings there.  Joosten subsequently returned to the apartment and kicked down the door, which hit the girlfriend’s new roommate in the face. After the girlfriend escaped, Joosten went back into his girlfriend’s room, where he cut up her driver’s license and bank card and cut the cords of her hair dryer and curling iron. The trial court denied Joosten’s tendered theory of the case instruction regarding the burglary charge. A jury convicted Joosten of second degree burglary, first degree criminal trespass, one count of third degree assault, and two counts of class 3 misdemeanor criminal mischief.

On appeal, Joosten first contended that the evidence was insufficient to convict him of second degree burglary because the prosecution failed to prove that he (1) relinquished his possessory interest in the apartment; (2) knew his invitation to enter the apartment was revoked; and (3) knew his entry was unlawful. Here, there was sufficient evidence to support Joosten’s burglary conviction, including the fact that he always knocked before entering, did not have a key to the apartment, and kicked down the door on the occasion in question.

Joosten also argued that the court erred in rejecting his theory of the case instruction. A criminal defendant is entitled to a theory of the case instruction. None of the exceptions to that rule were applicable in this case. The trial court erred when it refused Joosten’s tendered instruction and failed to work with Joosten’s counsel to craft a permissible instruction. But the error was harmless given the evidence regarding the manner of Joosten’s entry into the apartment.

Lastly, Joosten contended and the Attorney General conceded that the mittimus incorrectly reflects that the jury convicted him of two counts of class 2 misdemeanor criminal mischief. The court of appeals agreed that the mittimus is incorrect.

The judgment of conviction was affirmed. The case was remanded for correction of the mittimus.

Summary provided courtesy of Colorado Lawyer.

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 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 Court of Appeals: Defendant’s Request for Jury Instruction on Lesser Nonincluded Offense Does Not Concede Guilt

The Colorado Court of Appeals issued its opinion in People v. Geisick on Thursday, July 28, 2016.

Benjamin Geisick got into an argument with his girlfriend at a motel, and the motel manager called the police. The motel manager pointed Geisick out to an officer, who called to Geisick and tried to talk to him. Geisick attempted to flee, and the officer and Geisick engaged in a struggle. Geisick was ultimately arrested and charged with second degree assault on a peace officer and attempting to disarm a peace officer. He was also charged with possession of drug paraphernalia based on a methamphetamine pipe officers found in his pocket.

At trial, the officer and Geisick offered very different accounts of the altercation. At the close of evidence, Geisick asked the trial court to instruct the jury on two lesser non-included offenses, resisting arrest and obstructing a peace officer. The jury found Geisick not guilty of assault and attempting to disarm but guilty of resisting arrest, obstructing a peace officer, and possession of drug paraphernalia. He was convicted and sentenced, and he appealed.

On appeal, Geisick first argued that the trial court erred in denying his challenge for cause of one potential juror, forcing him to use a peremptory challenge. The Colorado Court of Appeals, following the Colorado Supreme Court’s opinion in People v. Novotny, determined that Geisick failed to show prejudice since the juror was dismissed and did not contribute to the guilty verdict.

Next, Geisick argued that the trial court erred in admitting hearsay evidence about the physical altercation with the officer. An officer who interviewed the officer involved in the altercation testified as to what he heard in the interview. The court of appeals concluded that any error in admitting the testimony was harmless. At trial, Geisick objected to the interviewing officer’s testimony, and the trial court agreed that the testimony was potentially impermissible hearsay because the officer was testifying as to the other officer’s truthfulness. However, the court allowed the testimony under the excited utterance and prior consistent statement exceptions to the hearsay rule. The court of appeals expressed doubt that the entirety of the altercating officer’s interview could be admitted as an excited utterance, and, because the altercating officer was not cross-examined about the interview, it could not be admitted as a prior inconsistent statement. Nevertheless, the court found that any error was harmless because the altercating officer described the incident in detail, the interviewing officer was not an eyewitness, the jury was aware that the interviewing officer was only testifying as to what happened in the interview, and it was unlikely that the interviewing officer’s testimony rendered the altercating officer’s account of the incident more credible since the jury acquitted Geisick on the assault and attempting to disarm charges.

Geisick next contended that the evidence was insufficient to support the convictions on the lesser non-included offenses. The court of appeals found that by proffering the lesser charges, he impliedly assented to the sufficiency of the evidence to support those charges. The court disagreed with a prior panel ruling on the same issue, which decided that the defendant had invited any error. The court of appeals found that by offering the instructions on the lesser non-included offenses, the defendant did not admit guilt on the charges, so invited error was inappropriate. However, because the defendant had to represent to the court that the non-included charges could be applicable, he affirmatively waived any argument about the sufficiency of the evidence.

The court of appeals found no error to support Geisick’s cumulative error arguments, and affirmed his convictions and sentence.

Colorado Court of Appeals: Proof of Mailing of License Revocation Notice Insufficient to Prove Knowledge in Criminal Proceeding

The Colorado Court of Appeals issued its opinion in People v. Boulden on Thursday, July 14, 2016.

Knowledge Element ofDriving Under Restraint.

Defendant’s driver’s license had been suspended for seven months when he was pulled over. He was convicted of driving under restraint.

On appeal, defendant contended that there was insufficient evidence to support his conviction. Knowledge is an essential element of the crime of driving under restraint. The prosecution admitted into evidence a certified copy of defendant’s driving history, which showed that notice of defendant’s driver’s license suspension had been mailed to him. Mere proof of mailing, however, is not sufficient in a criminal case to prove beyond a reasonable doubt a defendant’s knowledge of restraint of his driver’s privilege. Accordingly, no reasonable jury could have found that the prosecution proved the knowledge element of driving under restraint. Defendant’s conviction and sentence for driving under restraint were vacated, and the trial court was directed on remand to enter a judgment of acquittal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Universal Malice Requires Potential Harm to More than One Person

The Colorado Court of Appeals issued its opinion in People v. Anderson on Thursday, April 7, 2016.

Richard Anderson became depressed after his wife’s death and decided to commit suicide. After a night of drinking at a bar, he went to his car and pulled a gun on another of the bar’s patrons. He then left, and the other patron called the police. A police officer found him quickly and pulled him over in an isolated area with no other cars or people. Anderson shot at the officer multiple times, grazing his arm with one of the bullets, and the officer shot him, ending the conflict.

Anderson was charged with and convicted of attempted extreme indifference first degree murder; first degree assault, threatening a peace officer with a weapon; first degree assault, serious bodily injury with a deadly weapon; and first degree assault, extreme indifference. At trial, Anderson admitted shooting the officer but maintained that he did not mean to harm the officer but rather intended to have the officer shoot and kill him, and thus lacked the requisite mens rea for extreme indifference first degree murder. During trial, the jurors submitted five separate notes to the court, evidencing trouble reconciling the intent element of the extreme indifference charge. He was convicted and sentenced to a total of 108 years.

On appeal, Anderson contended the evidence was insufficient to support the extreme indifference conviction, the jury was improperly instructed on the mens rea element for both attempted extreme indifference murder and extreme indifference murder, his convictions for first degree assault violate double jeopardy, and his sentences are based on identical evidence and must run concurrently. The Colorado Court of Appeals agreed with his sufficiency challenge on the attempt conviction because his conduct only endangered one person. The court held that Anderson’s conduct was not the type that demonstrated the universal malice contemplated by the statute.

The court also agreed with Anderson that he should receive a single conviction for first degree assault because his three convictions violate double jeopardy. Since the three convictions were based on the same victim and the same act, they must be merged. The court did not address Anderson’s contentions about concurrent sentencing because of its double jeopardy finding.

The court of appeals vacated Anderson’s convictions for attempted extreme indifference murder, first degree assault (extreme indifference), and either first degree assault (peace officer) or (serious bodily injury), and remanded for correction of the mittimus.

Colorado Supreme Court: “Knowingly” Element of Identity Theft Statute Applies to “Of Another”

The Colorado Supreme Court issued its opinion in People v. Perez on Monday, February 29, 2016.

Criminal Law—Criminal Intent—False Pretenses—Identity Theft—Evidence—Sufficiency of Evidence.

The Supreme Court held that, in CRS § 18-5-902, the culpable mental state “knowingly” applies to the element “of another.” Therefore, to be guilty of identity theft, an offender must have used the identifying information of another person with knowledge that the information belonged to an actual person. The Court also concluded that the evidence in this case was sufficient to support defendant’s conviction under CRS § 18-5-902.

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

Colorado Court of Appeals: Pattern of Abuse Enhancement Requires Proof of At Least Two Distinct Instances

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, February 11, 2016.

William Edward Johnson was arrested after a domestic disturbance. Shortly after his arrest, his stepdaughter, R.B., reported that Johnson had anally raped her earlier that day and had been sexually abusing her for years. Johnson was charged with one count of sexual abuse on a child by one in a position of trust, aggravated incest, two counts of sexual assault on a child (one of which was dismissed before trial), and a sentence enhancer for committing sexual assault as a pattern of abuse. The jury found Johnson guilty of the anal rape but none of the other listed incidents of sexual assault. The jury convicted Johnson of the pattern of abuse enhancer based on the anal rape and another incident where Johnson was asleep and woke up ejaculating as R.B. was “grinding” on him. The trial court merged all the convictions into the sexual assault on a child as a pattern of abuse conviction and sentenced Johnson to 20 years to life.

On appeal, Johnson argued the evidence was insufficient to support the sentence enhancer, and the court of appeals agreed. The jury had rejected all of the incidents listed by the prosecution except the anal rape and instead wrote in the incident where R.B. was grinding on Johnson while he slept. The court disagreed with Johnson’s contention that the jury was bound to consider only the specifically listed incidents, finding instead that the jury need only agree unanimously that the defendant committed the same act or acts or all of the acts described by the victim. However, evaluating the incident in question, the court found insufficient evidence to support his conviction based on that incident, because he was asleep at the time of the incident and therefore could not have knowingly committed the act. Therefore, only one of the specific incidents found by the jury qualified as sexual assault, and the enhancer could not apply. The court of appeals remanded for resentencing.

Johnson also argued the trial court erred in denying his request for substitute counsel based on his dissatisfaction with the level of communication present with current counsel. The trial court denied Johnson’s motion, finding that counsel’s failure to visit Johnson in prison did not indicate deficient performance, and also noting that it had observed counsel in other trials and she had always provided effective assistance. The court of appeals affirmed the trial court’s denial of Johnson’s motion for substitute counsel, finding that mere difficulties in communication do not constitute deficient performance.

Next, the court evaluated Johnson’s claim that the jury’s access to the videotaped interview of R.B. was unduly prejudicial. The trial court in this case understood its obligation to consider certain restrictions on the jury’s view of the videotape and imposed restrictions. Because the court considered its duty and restricted the jury’s access, the court of appeals found no error.

The court of appeals remanded for resentencing based on the insufficient evidence to support the sentence enhancer and affirmed on all other counts.

Colorado Court of Appeals: Short Shotguns Not Protected by Constitutional Right to Bear Arms

The Colorado Court of Appeals issued its opinion in People v. Sandoval on Thursday, February 11, 2016.

Police executing a search warrant on Miguel Sandoval’s property after a shooting found a short shotgun in the shed in his backyard. Sandoval was convicted after a bench trial of possessing a dangerous weapon and appealed, arguing the district court erred in denying his motion to suppress evidence of the gun in the trial court, contending the shed was outside the scope of the warrant, and in precluding him from asserting the affirmative defenses of the right to bear arms and self-defense. He also argued the evidence was insufficient to support his conviction.

The court of appeals first evaluated the scope of the search warrant at issue. The warrant authorized the police to enter and search “the person, premises, location and any appurtenances thereto” of Sandoval’s residence. Because the shed in question was in Sandoval’s backyard and very close to the residence, the court found that search of the shed was within the scope of the warrant. The court of appeals affirmed the district court’s denial of Sandoval’s suppression motion based on the search of the shed.

Next, the court evaluated the right to bear arms as enunciated in the Second Amendment of the United States Constitution and Article II, section 13 of the Colorado Constitution. The court noted that the Supreme Court declined to hold that the Second Amendment provided a constitutional right to possess dangerous weapons, and short shotguns were typically used solely by criminals. The court found that there was no constitutional right for Sandoval to possess the short shotgun and therefore it was not available as an affirmative defense.

Finally, the court evaluated Sandoval’s sufficiency claim and found the evidence was sufficient to support his conviction. Although Sandoval never identified the particular short shotgun at issue as his, he admitted there was a short shotgun at his residence, the short shotgun at issue was found at Sandoval’s residence in the shed in the backyard, a key to the shed was found at Sandoval’s residence, and a spent shotgun round that had been fired from the short shotgun at issue was found in Sandoval’s bedroom. The court concluded that the evidence was sufficient to support Sandoval’s conviction.

The court of appeals affirmed the district court.

Tenth Circuit: Excessive Force Claim Does Not Require Showing of More than De Minimus Injury

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rodella on Wednesday, November 4, 2015.

Michael Tafoya was driving home from his grandfather’s house in rural Rio Arriba County, New Mexico, when a green Jeep began tailgating him and flashing its headlights. Tafoya stepped on his brakes to try to get the Jeep to back off, and flipped off the driver of the Jeep through his back window, but the Jeep continued to tailgate him. Eventually, he found a place to pull over and allowed the Jeep to pass. When it sped past him, Tafoya again flipped off the driver. The Jeep slammed on its brakes and rapidly reversed back to where Tafoya was stopped. Two men got out of the Jeep: defendant Thomas Rodella, who was the passenger, and his son, Thomas Rodella Jr., who was the driver. The two men approached Tafoya and urged him to “come on.” Although Rodella was the acting sheriff of Rio Arriba County, at no point did he identify himself as a law enforcement officer.

Tafoya, believing the men wanted to fight him, sped off, followed by the Jeep. Tafoya became scared and began driving 60 to 65 miles per hour down the road, despite the 35 mph posted speed limit. He tried to plan a route to reverse his course but missed his turn. Panicked, he yelled out the window at a passing jogger to call the police. Tafoya turned into a nearby driveway, and the Jeep quickly followed. Tafoya reversed, trying to evade the Jeep, but crashed into a metal pole in the middle of the driveway. His vehicle became stuck.

Rodella jumped out of the passenger side of the Jeep and tried to get into the driver’s side. When that failed, he successfully entered the passenger side with a shiny silver firearm in his hand, later confirmed to be a .38 special revolver. Rodella tried to turn the gun toward Tafoya, who grabbed at his wrists, begging, “Please don’t kill me!” Rodella responded by saying, “It’s too late, it’s too late.” As the two struggled, Rodella Jr. approached the vehicle and pulled Tafoya out. Tafoya struggled to get up, continuing to say “Please don’t kill me.” As Rodella Jr. held him down, he told Tafoya that his dad was the sheriff. Tafoya reported that he froze in shock, and eventually calmly asked Rodella to show him his badge in order to confirm he was the sheriff. Rodella said, “You want to see my badge?,” grabbed Tafoya by the hair, and smacked him across the face with his badge, saying “Here’s my badge, motherfucker.”

Tafoya remained on the ground for several minutes until deputies from the Rio Arriba County Sheriff’s Office arrived on the scene. The deputies were contacted by Rodella directly during the chase; he did not report the chase to dispatch. The deputies took Tafoya to his car, frisked him, and transported him to the jail. Although Tafoya attempted repeatedly to explain what happened, they did not listen, and eventually charged him with a felony offense. Tafoya remained in jail for several days until his grandfather bailed him out. The criminal charges against Tafoya were eventually dismissed, and Tafoya contacted the FBI to report what had happened to him.

In August 2014, a federal grand jury indicted Rodella on four counts: conspiring with his son to violate Tafoya’s constitutional rights against unreasonable seizures, depriving Tafoya of his civil rights, brandishing a firearm in the commission of that offense, and falsifying a document because of his official written report documenting what happened before and during the arrest of Tafoya. In September 2014, the grand jury returned a superseding indictment charging two offenses: deprivation of Tafoya’s constitutional right to be free of unreasonable searches and seizures by a law enforcement officer and brandishing a firearm duing the commission of that offense. Rodella proceeded to trial, and the jury found him guilty on both counts. He was sentenced to a total term of imprisonment of 121 months. He appealed.

On appeal, Rodella argued the evidence was insufficient to show that he had subjected Tafoya to a deprivation of rights while under color of law. The government presented two theories to show Rodella’s violation of 18 U.S.C. § 242: that Rodella unlawfully arrested Tafoya, and that he used unreasonable force in the course of arresting Tafoya. The jury accepted the government’s theory on both counts. Considering the unreasonable force theory, the jury found beyond a reasonable doubt that Rodella used or threatened to use a dangerous weapon, but not that he caused serious bodily injury. Rodella challenged both theories of liability on appeal.

The Tenth Circuit initially noted that Rodella failed to preserve his argument that Tafoya was committing certain traffic infractions, thus supplying reasonable cause to stop him. The Tenth Circuit further noted that, because Rodella did not testify in his defense, the jury could only evaluate the testimony of the other eyewitnesses: Tafoya, Rodella Jr., and Mark Thompson, the owner of the property where Tafoya crashed his car. Thompson’s testimony generally supported Tafoya’s, and although Rodella Jr.’s testimony was dramatically different, the jury could have reasonably found it was not credible. Additionally, because Rodella was not in uniform, he could not have arrested Tafoya for the traffic offenses under New Mexico law. The Tenth Circuit found the evidence sufficient to support the unlawful arrest charge.

Next, the Tenth Circuit examined Rodella’s challenge to the sufficiency of the evidence supporting the excessive force claim. Rodella based his challenge on a Tenth Circuit opinion that an excessive force claim in the context of handcuffing too tightly requires more than a de minimus injury. The Tenth Circuit noted that the holding on which Rodella relied was limited to handcuffing injuries, and also that the Supreme Court rejected the theory that more than a de minimus injury was required to support an excessive force claim. The Tenth Circuit rejected Rodella’s claim that more than a de minimus injury was required to support excessive force and therefore concluded the evidence was sufficient for Tafoya’s excessive force claim. Rodella also argued that he was deprived of his Fifth and Sixth Amendment rights when the jury was not instructed that excessive force requires more than a de minimus injury, which the Tenth Circuit similarly rejected.

Next, Rodella argued the district court erred in admitting evidence of three similar incidents in which he was involved. Prior to trial, the government had filed a motion in limine, seeking to introduce evidence of the three similar incidents pursuant to FRE 404(b) to show motive, intent, plan, knowledge, absence of mistake, and lack of accident, listing specifically what the government thought the evidence would show. The district court granted the government’s motion on the eve of trial. To reduce the risk of prejudice, the court ordered the government to instruct the jury specifically for what purpose the evidence was admitted. The Tenth Circuit rejected Rodella’s argument that the evidence tended to make propensity-based inferences in order to show willfulness. The Tenth Circuit found that the evidence had significant probative value and was not unfairly prejudicial.

Rodella similarly argued the prosecution committed misconduct when it improperly referenced his other bad acts during closing argument, pointing to eight specific statements. The Tenth Circuit evaluated each statement separately. As to the statements that contrasted the personalities of Rodella and Tafoya, the Tenth Circuit found no misconduct. The Tenth Circuit also found no prejudice in the prosecutor’s statement that Rodella’s tailgating of Tafoya was “familiar,” considering the other similar incidents. The Tenth Circuit similarly found the prosecutor’s mention of the other three incidents acceptable three other times. As for the government’s mention of the emotional distress suffered by one of the other victims, the Tenth Circuit found no error because the government’s evidence was sufficient to establish that Tafoya experienced emotional distress from the incident. Finally, the Tenth Circuit found the last statement proper because it asked the jury to infer from the totality of the circumstances that Rodella had acted willfully.

The Tenth Circuit also rejected Rodella’s claim that the admission of evidence on officer training was an abuse of discretion, noting that the evidence showed that Rodella knew his conduct was illegal. The Tenth Circuit also addressed Rodella’s cumulative error claim, finding that it only had accepted one instance of prosecutorial misconduct as potentially erroneous and that was not enough to prove cumulative error.

The Tenth Circuit affirmed the district court.