Summaries of Published Opinions, 0421 COBJ, Vol. 50, No. 4 Pg. 88

PositionVol. 50, 4 [Page 88]

50 Colo.Law. 88

Summaries of Published Opinions

Vol. 50, No. 4 [Page 88]

Colorado Lawyer

April, 2021

FROM THE COURTS COLORADO COURT OF APPEALS

February 4, 2021

2021 COA 10. No. 18CA0481. People v. Plemmons.

Criminal Law—Constitutional Law—Due Process—Vagueness—Second Degree Assault—Exclusionary Rule.

Two deputies went to defendant's home to conduct a welfare check. When the deputies entered the house, defendant, who was visibly drunk, berated them and spat in both of their faces. Defendant also spat on one deputy again while being transported in the patrol car to a medical center. Defendant was charged with two counts of second degree assault under CRS § 18-3-203(1)(h) for the spitting incidents inside the house and one count of second degree assault under CRS § 18-3-203(1)(f.5) for spitting in the patrol car. Before trial, defendant filed a motion to suppress the statements and evidence the police acquired when they entered her home without a warrant. The trial court denied the motion without an evidentiary hearing. Defendant was found guilty of all counts.

On appeal, defendant contended that her two convictions under CRS § 18-3-203(1) (h) should be reversed because the statute is unconstitutionally vague, both facially and as applied to her. Under § 18-3-203(1)(h), a person commits second degree assault by spitting on a peace officer with "intent to infect, injure, or harm." Colorado law clearly proscribes intentionally spitting in a police officer's face with malign intent, so defendant's as-applied challenge failed. Further, while the term "harm" is ambiguous and could be broadly construed, the trial court sufficiently narrowed the statute, consistent with legislative intent, to apply to a person who exposes an officer to bodily fluids with the intent to cause psychological or emotional harm. Absent uncertainty about the statute's scope, CRS § 18-3-203(1)(h) is not likely to invite arbitrary or discriminatory enforcement and is thus not unconstitutionally vague on its face.

Defendant also contended that the evidence was insufficient to prove beyond a reasonable doubt that she intended to harm the deputies by spitting in their faces while still inside the house. However, defendant admittedly intentionally spat at both deputies multiple times during the encounter and conceded that she yelled at them and used demeaning language. Accordingly, sufficient evidence supported the convictions under CRS § 18-3-203(1)(h).

Defendant also argued that all of her convictions should be reversed because the trial court erroneously instructed the jury on the definition of "harm." However, the instruction was not erroneous in any respect.

Lastly, defendant argued that the court erred by not holding an evidentiary hearing on her motion to suppress. Whether or not the deputies entered the house lawfully, it was uncontested that defendant committed a new criminal act after officers were inside. Therefore, a fact-intensive hearing was unnecessary. The trial court correctly decided that the criminal act was sufficiently attenuated from any unlawful entry to render the exclusionary rule inapplicable.

The judgment was affirmed.

February 11, 2021

2021 COA 11. No. 16CA2200. People v. Blassingame.

Criminal Law—Jury Trial—Challenge for Cause.

Defendant and C.A. attended the same party. C. A. alleges that she took shots of alcohol and remembers nothing after that until she woke up with no pants on with defendant attempting to have sex with her. Defendant claims he had consensual sex with C.A. and when she told him she didn't want to have sex again, he left. Defendant was charged with two counts of sexual assault. The trial court denied defense counsel's challenge for cause as to Juror S, and a jury found defendant guilty of sexual assault—victim incapable of appraising conduct.

On appeal, defendant contended that the trial court erroneously denied his challenge for cause to Juror S. Juror S had disclosed on her questionnaire that she was molested by a family member when she was young and her father had not believed her allegation. After lengthy voir dire by defense counsel, the prosecution, and the judge, Juror S was still unsure of her ability to be a fair and impartial juror. The trial court found that Juror S could hold the prosecution to its burden of proof and concluded that she should not be removed unless she would credit the victim no matter what the rest of the evidence established. However, a prospective juror does not need to unequivocally state her partiality for one side to be deemed unfit to serve on a jury. Accordingly, the court erred in denying the challenge for cause.

The conviction was reversed and the case was remanded for a new trial.

2021 COA 12. No. 17CA1396. People v. Roberts-Bicking.

Criminal Law—Jury Instructions—Self-Defense—Affirmative Defense Exception—Apparent Necessity—Defense Against Multiple Assailants—Initial Aggressor—Provocation—Unanimity.

Defendant had an altercation with the victim and the victim's brother. Defendant shot the victim six times with a pistol and injured him, and he hit the victim's brother over the head with the pistol. The issue at trial was whether defendant acted in self-defense. The jury acquitted defendant of attempted first degree murder but convicted him of attempted second degree murder and first degree assault and menacing.

On appeal, defendant contended that the trial court reversibly erred in rejecting proposed self-defense instructions on apparent necessity and defense against multiple assailants. Although the stock jury instruction on self-defense was not sufficient in this case, the supplemental instruction cured any deficiency by adequately informing the jury that it must consider the reasonableness of defendant's beliefs and actions under the totality of the circumstances. Accordingly, the trial court did not err by declining to give the proposed self-defense instructions.

Defendant also argued that the trial court should not have given an instruction on the initial aggressor or provocation exceptions to defendant's self-defense. In the alternative, defendant argued that the court should have instructed the jury that they must unanimously agree on which exception, if either, was applicable. Here, there was sufficient evidence that defendant may have initiated the physical conflict by using or threatening the imminent use of unlawful physical force, so the initial aggressor instruction was warranted. Further, defendant's statement "If you want to [expletive] with me, try it" could have been interpreted as a warning or invitation provoking an attack Therefore, there was sufficient evidence to instruct the jury on the provocation exception. Finally, the exceptions are not mutually exclusive, and jury unanimity is not required with respect to alternate means of satisfying an element of an offense. Thus, the trial court did not err.

The judgment of conviction was affirmed.

2021 COA 13. No. 18CA1360. People v. Propst.

Criminal Law—Sentencing—Probation—Plea Agreement—Revocation—Resentencing.

The State charged defendant with one count of second degree assault and six counts of child abuse. The prosecutor and defendant negotiated a plea agreement allowing defendant to plead guilty to the assault charge in exchange for dismissal of the remaining charges. The parties also agreed to a suspended prison sentence conditioned on defendant's successful completion of probation. The court accepted the agreement. Defendant thereafter missed her probation intake appointment, and the probation department filed a complaint recommending revocation of probation. The court believed it did not have discretion to continue probation and sentenced defendant to six years in the Department of Corrections pursuant to the plea agreement.

On appeal, defendant contended that the sentencing court erred by finding that it lacked the discretion to impose a sentence other than the suspended sentence, upon finding a probation violation. A sentencing court, after accepting a plea agreement and imposing a suspended prison sentence conditioned on the successful completion of probation, has discretion to continue probation, revoke probation, or impose any sentence that it might originally have imposed. Further, in those circumstances, a sentencing court's decision not to impose a suspended sentence does not breach the parties' plea agreement. Accordingly, the sentencing court erred.

The sentence was vacated and the case was remanded for resentencing on the probation violation.

2021 COA 14. No. 18CA1879. People v. Marston.

Criminal Law—Driving While...

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