Colorado Court of Appeals, 0916 COBJ, Vol. 45, No. 9
July 2016: Summaries of Published Opinions
Summaries of Published Opinions
The summaries of Colorado Court of Appeals published opinions are written for the CBA by licensed attorneys Teresa Wilkins (Englewood) and Paul Sachs (Steamboat Springs). They are provided as a service by the CBA; are not the official language of the Court; and are available only in The Colorado Lawyer and on the CBA website, www.cobar.org (click on “Opinions/Rules /Statutes”). The CBA cannot guarantee their accuracy or completeness. The full opinions, the lists of opinions not selected for official publication, the petitions for rehearing, and the modified opinions are available both on the CBA website and on the Colorado Judicial Branch website, www.courts.state.co.us
(click on “Courts/Court of Appeals/Case Announcements”).
July 14, 2016
2016 COA 105. No. 13CA1680. People v. Lucero.
Conspiracy to Distribute a Controlled Substance —Insufficient Evidence.
On several occasions, Lucero requested prescription medication from her coworker for pain relief. Each time the coworker gave Lucero medication, she gave Lucero one pill. Although the evidence showed that Lucero took the pills herself and did not distribute them, she was found guilty of conspiracy to distribute a controlled substance.
On appeal, Lucero contended that the prosecution presented insufficient evidence to prove that she conspired with her coworker to distribute a controlled substance. A mere buyer–seller relationship, without more, does not constitute a conspiracy to distribute a controlled substance because such conspiracy liability would frustrate the legislative policy to distinguish between distribution of an illegal drug and the acquisition or possession of the drug. Nothing in the record suggested that Lucero and her coworker agreed and intended that Lucero would distribute the pills to others, and Lucero indicated that she consumed the pills to relieve her personal ailments. Accordingly, the prosecution presented insufficient evidence to sustain Lucero’s conspiracy conviction.
The judgment was vacated and the case was remanded for entry of a judgment of acquittal.
2016 COA 106. No. 14CA1954. People v. Stellabotte.
Aggravated Motor Vehicle Theft—Felony Theft—Misdemeanor Theft—Jury Instructions—Sentence Reclassification—Disproportionate —Eighth Amendment.
Stellabotte, owner of J&J Towing, was charged with various crimes based on illegally towing vehicles.
He was found guilty of one count of aggravated motor vehicle theft, two counts of felony theft, and one count of misdemeanor theft. His sentence was enhanced by three habitual criminal counts.
On appeal, Stellabotte contended that the trial court erred in instructing the jury on aggravated motor vehicle theft. In contrast to the theft instruction, the aggravated motor vehicle theft instruction did not convey that he had to act knowingly without authorization. However, the court listed “knowingly” as the second element of the crime, which applied to the succeeding elements, including the fifth element, “without authorization.” Further, confusion was not created by listing “without authorization” as a subpart of “knowingly” in the theft instruction.
Stellabotte also contended that the court abused its discretion when it provided the standard dictionary definition of “authorization” because the definition differed from that in relevant case law. However, the trial court did not abuse its discretion when it supplemented the jury instructions with the definition of authorization because (1) “authorization” was related to a legal issue, (2) the court’s response was simple and direct, and (3) the jury had expressed confusion over this term.
Stellabotte further argued that the 24-year sentences imposed for his two felony theft convictions should be halved because of new legislation reducing the severity of those offenses. He contended that this reclassification should reduce the maximum of his sentencing range for his theft convictions from six years to three years, which in turn should reduce his sentence for those offenses, as enhanced by the habitual criminal statute, from 24 years to 12 years. The Court of Appeals agreed. Due to a change in the law, by the time the court sentenced Stellabotte, his offenses were considered class 5 felonies. However, the court entered a judgment of conviction and sentenced him under...
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