Summaries of Published Opinions, 1118 COBJ, Vol. 47, No. 10 Pg. 92

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47 Colo.Law. 92

Summaries of Published Opinions

Vol. 47, No. 10 [Page 92]

The Colorado Lawyer

November, 2018

Colorado Court of Appeals

September 6, 2018

2018 COA 127. No. 14CA2242. People v. Welborne. Criminal Law—First Degree Arson—Criminal Mischief—Theft—Double Jeopardy—Merger—Lesser Included Offense.

Welborne and his mother were charged with setting fire to their rented house and then filing false insurance claims based on the fire damage. Welborne was convicted of first degree arson, criminal mischief, theft, and attempted theft. The Court of Appeals previously rejected his challenges to his convictions based on Reyna-Abarca v. People, 2017 CO 15. After this decision, the Colorado Supreme Court clarified Reyna-Abarca and vacated the Court's judgment here as to the included offense statute and remanded this case.

On appeal, Welborne contended that criminal mischief is an included offense of first degree arson and, therefore, those convictions must merge under both statutory and double jeopardy dictates. Criminal mischief is included in first degree arson where both offenses are based on the same conduct. Here, when Welborne knowingly burned the rented house without the owner's consent, he committed both criminal mischief and first degree arson. The failure to merge the convictions was plain error.

The criminal mischief conviction and sentence were vacated. The judgment was affirmed in all other respects. The case was remanded for the trial court to correct the mittimus.

2018 COA 128. No. 15CA0868. People v. Jompp. 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 non included 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 CRS§ 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.

2018 COA 129. No. 16CA1298. People v. Ramirez. 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 CRS § 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.

2018 COA130. No. 16CA1884. People v. Gwinn. Criminal Law—Driving While under the lnfluence of Alcohol—Evidence—Impeachment—Direct Examination—Jury Instruction—Search Warrant—Prior DUI Convictions—Sentence Enhancer—Preponderance of the Evidence.

Gwinn rear-ended another car while driving home from work and was arrested for driving while under the influence of alcohol (DUI). Gwinn admitted drinking four beers before the accident occurred. After a jury convicted Gwinn of DUI and careless driving, the trial court, in a separate proceeding, found that Gwinn had three prior DUI convictions, adjudicated him a felony DUI offender, and sentenced him to 30 months of probation, two years of work release, and 90 days in the county jail.

On appeal, Gwinn first contended that the trial court's refusal to allow the testimony of eight current and former Colorado Department of Public Health and Environment (CDPHE) employees deprived him of his constitutional right to present a defense. Gwinn sought to introduce this testimony to show that the Intoxilyzer 9000 breath test machine did not produce accurate results. The trial court did not err when it granted CDPHE's motion to quash the witness subpoenas, finding that the testimony was irrelevant to Gwinn's refusal because it failed to establish Gwinn's knowledge of the Intoxilyzer 9000's alleged deficiencies at the time he refused to submit to chemical testing. Because the accuracy of the breath test machine was not relevant, Gwinn was not deprived of the right to present a defense.

Gwinn next contended that the trial court erroneously permitted the prosecutor to lead a friendly witness, Officer Perez, "under the guise of impeachment" where no impeachment occurred. Because Officer Perez's direct testimony that Gwinn's speech "sounded...

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