author: Opinion by JUDGE ROMÁN

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Santos Sanchez JOHNSTON, Defendant-Appellant.
    Court of Appeals No. 16CA0749
    Colorado Court of Appeals, Division V.
    Announced November 29, 2018
    Cynthia H. Coffman, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE ROMÁN

¶ 1 Defendant, Santos Sanchez Johnston, appeals his judgment of conviction for aggravated driving after revocation prohibited. In so doing, he raises an issue of first impression in Colorado: whether weaving within a single lane of traffic can create reasonable suspicion of criminal activity to justify an investigatory stop.

¶ 2 We recognize that slight degrees of incidental weaving within a traffic lane do not alone give rise to the reasonable suspicion necessary to justify a stop of a vehicle. But we conclude that, under the totality of the circumstances, the police officer's observation of defendant's vehicle weaving continuously within its own lane for over five miles was sufficient to create a reasonable suspicion justifying the traffic stop. Accordingly, we affirm.

I. Background

¶ 3 An Arapahoe County sheriff's deputy noticed defendant's car weaving back and forth within the right-hand lane while traveling eastbound on Interstate 70. The deputy followed defendant for five to six miles before stopping him. During that time, defendant continuously weaved within his lane. The deputy stopped defendant on suspicion that he was driving under the influence of alcohol.

¶ 4 During the stop, the deputy noticed defendant had slightly slurred speech and bloodshot eyes. The deputy also smelled a strong odor of alcohol. A second officer on the scene noticed alcoholic beverage containers in the front passenger seat and informed the deputy.

¶ 5 When asked for his license and insurance, defendant produced his registration information but stated his license was suspended and he did not have insurance. A check of his name and date of birth revealed an Oklahoma license and a showing of being a habitual traffic offender in Oklahoma.

¶ 6 The deputy administered a horizontal gaze nystagmus test on defendant. Defendant exhibited clues of intoxication, and the deputy placed him under arrest. Defendant informed the deputy that he had been a habitual traffic offender for fourteen years and that his license was suspended.

¶ 7 The prosecution charged defendant with aggravated driving after revocation prohibited, driving under the influence, and lack of compulsory insurance. The prosecution dismissed the compulsory insurance charge at trial.

¶ 8 Defendant filed a pretrial motion to suppress evidence and statements as the product of an illegal stop under the Fourth Amendment. The trial court held a hearing to consider the motion. At the hearing, the prosecution called the deputy who had stopped defendant.

¶ 9 The deputy testified that, over the course of five to six miles,

[defendant] was going back and forth in his lane, so he was getting to the left side where the dotted line was, and then he'd go back over to the right side where the solid line was. He would just keep going back and forth in his lane; wouldn't quite cross over them, but he kept going back and forth between the two lines.
....
He made a lane change I believe to go around a truck, and ... again, he was weaving within the lane but never actually went outside of the lane. And then once he got past, he went back into the number two lane where he continued to weave, I want to say for several miles. At that point I decided just to initiate a stop because he was back and forth in his own lane.
....
[The weaving] was continuous the entire time. I mean, just back and forth within the lanes, other than when he made the lane change, the two times that he made the lane change.
....
I believe[d] he was drunk. Weaving within your lane is reasonable suspicion that someone is driving under the influence of alcohol, so I used that to stop him.

¶ 10 On cross-examination, the deputy conceded that he did not see anything that he "would have specifically written a traffic citation for; so no weaving, [or] failure to stay within one lane." He also agreed that he "didn't make the stop based on an idea that careless driving was happening." When asked if he generally observes some type of illegal traffic maneuver or defective vehicle before making stops on suspicion of drunk driving, he answered, "Sometimes I do; sometimes I don't. Each one is different."

¶ 11 During argument, defense counsel contended that there was insufficient evidence of reasonable, articulable suspicion of criminal activity. Defense counsel noted defendant committed no traffic infractions and that weaving within a single lane was not a violation of Colorado law.

¶ 12 The prosecutor argued the stop was justified even in the absence of a driving violation, contending that "it is enough for an officer to believe that a person might be under the influence" and that police "need not wait for an independent traffic violation to occur." The prosecutor further alleged there existed reasonable suspicion for "careless driving, distracted driving."

¶ 13 The trial court denied the motion to suppress, concluding the officer had reasonable suspicion for the stop. The court found "the case law does not require an actual traffic violation for the officer to have a reasonable suspicion that a person is drunk driving." Instead, the court held, "continuous weaving for a period of five to six miles observed by a police officer who had experience and training in DUI enforcement was sufficient to constitute a reasonable suspicion."

¶ 14 The jury found defendant guilty of aggravated driving after revocation prohibited and the lesser included offense of driving while ability impaired. This appeal followed.

II. Analysis

¶ 15 Defendant argues that the trial court erred by denying his motion to suppress. We disagree.

A. Standard of Review

¶ 16 In suppression cases, an appellate court defers to the trial court's factual findings and will not disturb them if they are supported by competent evidence in the record. People v. Brown , 217 P.3d 1252, 1255 (Colo. 2009). The appellate court reviews the trial court's ultimate legal conclusions de novo. Id.

B. Seizures for Traffic Violations

¶ 17 The United States and Colorado Constitutions protect against unreasonable searches and seizures. U.S. Const. amends. IV, XIV ; Colo. Const. art. II, § 7. Traffic stops implicate these federal and state constitutional protections against unreasonable seizure. People v. Chavez-Barragan , 2016 CO 16, ¶ 10, 365 P.3d 981 (citing People v. Rodriguez , 945 P.2d 1351, 1359 (Colo. 1997) ). But a brief, investigatory seizure is justifiable when the officer has a reasonable, articulable suspicion that criminal activity has occurred, is taking place, or is about to take place. Id. Suspicion of even a minor traffic offense can provide the basis for a stop. Id.

¶ 18 "[A]n officer's subjective motives for stopping a driver are irrelevant in determining whether an officer had reasonable suspicion." People v. Vaughn , 2014 CO 71, ¶ 11, 334 P.3d 226 ; see also Whren v. United States , 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). An officer with "an objectively reasonable basis to believe that a driver has committed a traffic offense" is justified in making a stop. Vaughn , ¶ 11.

C. Intra-lane Weaving as Reasonable Suspicion

¶ 19 Defendant argues that his weaving within a single lane, without more, did not create reasonable suspicion of driving under the influence, despite the officer's testimony that it did. We reject any bright line rule and emphasize that whether there exists reasonable suspicion of intoxicated driving is based on the totality of the circumstances. On the facts of this case, we conclude that the deputy had such reasonable suspicion, and that, therefore, the stop did not violate defendant's constitutional right to be free from unreasonable searches and seizures.

¶ 20 The Fourth Amendment does not require that a police officer see the defendant actually commit a traffic violation before stopping him or her. See People v. Arias , 159 P.3d 134, 137-38 (Colo. 2007) ("Facts that might seem innocent when viewed in isolation can sustain a finding of reasonable suspicion when considered in the aggregate, so long as the officer maintains an objectively reasonable belief that the collective circumstances are consistent with criminal conduct."); see also United States v. Botero-Ospina , 71 F.3d 783, 787 (10th Cir. 1995) ("[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.") (emphasis added).

¶ 21 Colorado courts have not addressed the issue of whether an officer may lawfully stop a driver who has been observed to be weaving within his lane of traffic. Other jurisdictions have considered this issue, however.

¶ 22 We agree with the "overwhelming weight of authority from other jurisdictions hold[ing] that repeated intra-lane weaving can create reasonable suspicion of impaired operation." State v. Pratt , 182 Vt. 165, 932 A.2d 1039, 1041 (2007) (emphasis added) (collecting cases); see People v. Greco , 336 Ill.App.3d 253, 270 Ill.Dec. 626, 783 N.E.2d 201, 205 (2003) (collecting cases); Neal v. Commonwealth , 27 Va.App. 233, 498 S.E.2d 422, 424-25 (1998) (collecting cases).

¶ 23 Indeed, some jurisdictions recognize that intra-lane weaving can form the basis of an investigatory stop if the weaving is "repeated" or over a "substantial distance." People v. Perez , 175 Cal.App.3d Supp. 8, 221 Cal.Rptr. 776, 778 (1985) (concluding that an officer has "reasonable cause to stop a vehicle on suspicion of driving under the influences where such weaving continues for a substantial distance"); State v. Field , 252 Kan. 657, 847 P.2d 1280, 1285 (1993) ("[T]he repeated weaving of a vehicle within its own lane may constitute sufficient reasonable suspicion for an officer to stop and investigate the driver of the vehicle."); State v. Bailey , 51 Or.App. 173, 624 P.2d 663, 664 (1981) ("[A] vehicle weaving within its own lane for a substantial distance gives rise to probable cause....").

¶ 24 Still other jurisdictions recognize that intra-lane weaving can form the basis of an investigatory stop when the individual is "driving erratically" or there is "pronounced weaving or hard swerving." Brown v. State , 595 So.2d 270, 270 (Fla. 2nd DCA 1992) (concluding there was a valid stop when the car weaved and "slowed to 45 miles per hour and then accelerated to 55 miles per hour on several occasions");

State v. Binette , 33 S.W.3d 215, 219-20 (Tenn. 2000) ("While Binette did move laterally at times within his lane ..., we find that his movement was not pronounced, and therefore did not give rise to reasonable suspicion that he was under the influence of an intoxicant."). But,

[t]here are limits ... on the extent to which weaving can serve as a factor creating reasonable suspicion of driving under the influence. For instance, an isolated incident of crossing into another lane will not ordinarily create reasonable suspicion of driving while impaired. Nor will weaving within a lane, without more, ordinarily create reasonable suspicion of driving under the influence.

Amundsen v. Jones , 533 F.3d 1192, 1199 (10th Cir. 2008) (citations omitted).

¶ 25 "Indeed, if failure to follow a perfect vector down the highway ... were [a] sufficient reason[ ] to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy." United States v. Lyons , 7 F.3d 973, 976 (10th Cir. 1993), overruled on other grounds by Botero-Ospina , 71 F.3d at 787. As the deputy in this case acknowledged at the suppression hearing, in his experience people do not "tend to drive in a perfectly straight line."

¶ 26 In agreeing with these authorities, therefore, we do not adopt a bright line rule that weaving within a single lane, by itself, gives rise to reasonable suspicion. Indeed, "slight degrees of intra-lane weaving alone do not justify a stop." Pratt , 932 A.2d at 1042 ; see State v. Post , 301 Wis.2d 1, 733 N.W.2d 634, 639 (2007) (rejecting a bright line rule because weaving that is "minimal or happens very few times over a great distance ... can be insignificant enough that it does not give rise to reasonable suspicion"). Yet, we also do not adopt a bright line rule that weaving within a single lane gives rise to reasonable suspicion only when it is erratic, unsafe, or illegal. See Post , 733 N.W.2d at 641, 301 Wis.2d 1.

¶ 27 Rather, we apply the well-established principle that reasonable suspicion for an investigative stop must be based on the totality of the circumstances. People v. Reyes-Valenzuela , 2017 CO 31, ¶ 12, 392 P.3d 520. Thus, other factors "such as pronounced or prolonged weaving or other suspicious aspects of driving" can support reasonable suspicion even if the driving was not erratic or unsafe. Post , 733 N.W.2d at 641, 301 Wis.2d 1 (footnote omitted).

¶ 28 In this case, the deputy did not see defendant commit any traffic offense. But he observed defendant's car continuously weave within a single lane for five or six miles. He identified this weaving behavior as an indication "that someone is driving under the influence of alcohol." And when asked if it is normal for people to weave within one lane, he answered,

Not in the frequency that he was doing it, no.... When you are going back and forth and almost playing pinball with the lanes, yes, he didn't cross over a line, but he was just back and forth, back and forth. It was like a sign [sic] wave, watching a sign [sic] wave.

¶ 29 Considering the totality of the circumstances, we conclude that there existed reasonable suspicion that the driver was intoxicated. See People v. Loucks , 135 Ill.App.3d 530, 90 Ill.Dec. 286, 481 N.E.2d 1086, 1087 (1985) (upholding a stop where "the vehicle the defendant was driving was weaving within its own lane of travel continuously for a distance of about two blocks"); State v. Otto , 366 N.C. 134, 726 S.E.2d 824, 828 (2012) (upholding a stop where the defendant "was weaving 'constantly and continuously' over the course of three-quarters of a mile"); Pratt , 932 A.2d at 1041 (upholding a stop where "the trooper observed defendant drift back and forth within his lane several times over a distance of approximately five miles").

¶ 30 Accordingly, the trial court did not err in denying defendant's motion to suppress.

III. Conclusion

¶ 31 The judgment is affirmed.

JUDGE FURMAN and JUDGE LICHTENSTEIN concur.

      It was later discovered that defendant's Colorado license had been revoked and that he was a habitual traffic offender in Colorado as well.

      For simplicity, in this opinion we use the phrase "intoxicated driving" to refer to both the offense of "driving under the influence" and the offense of "driving while ability impaired." See § 42-4-1301(1)(a)-(b), C.R.S. 2018.

      Given our disposition of this case, we need not reach the People's other arguments that there existed reasonable suspicion that defendant was about to violate section 42-4-1007(1)(a), C.R.S. 2018 (weaving out of designated lanes), or section 42-4-1402(1), C.R.S. 2018 (careless driving).


source: Caselaw Access Project

author: Opinion by JUDGE TOW

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hunter Adam MELNICK, Defendant-Appellant.
    Court of Appeals No. 18CA0930
    Colorado Court of Appeals, Division I.
    Announced February 21, 2019 Rehearing Denied March 28, 2019
    Philip J. Weiser, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Hunter Adam Melnick, Pro Se
   Opinion by JUDGE TOW

¶1 Defendant, Hunter Adam Melnick, appeals the trial court's denial of his Crim. P. 35(c) motion. We affirm in part, reverse in part, and remand for a hearing on Melnick's challenges to his parole revocation.

I. Introduction

¶2 In 2006, Melnick pleaded guilty to sexual assault and two misdemeanors - third degree assault and menacing. He received an aggregate sentence of thirty months in jail on the misdemeanors and a consecutive ten years to life on Sex Offender Intensive Supervision Probation (SOISP) on the sexual assault.

¶3 In 2009, after finding that Melnick violated the conditions of his probation, the trial court revoked Melnick's SOISP sentence and resentenced him to three years to life in the custody of the Department of Corrections (DOC). A division of this court affirmed the order revoking the SOISP sentence and the imposition of the DOC sentence. See People v. Melnick , 2011 WL 6288026 (Colo. App. No. 09CA2713, Dec. 15, 2011) (not published pursuant to C.A.R. 35(f) ).

¶4 At some point, Melnick was granted parole. In November 2017, his parole officer filed a complaint to revoke his parole based on violations of its conditions. After a hearing, Melnick's parole was revoked, and he was remanded to the custody of the DOC for 540 days. The Appellate Board of the Colorado State Board of Parole (parole board) denied his appeal of that decision.

¶5 Melnick then filed a Crim. P. 35(c) motion, including several amendments, in which he asserted numerous claims relating to his parole revocation. The postconviction court denied the motion without a hearing, finding that the challenges Melnick raised in his appeal to the parole board were not properly brought pursuant to Crim. P. 35(c). The court further found that Melnick's remaining claims lacked a factual and legal basis. Melnick appeals the denial of his Rule 35(c) motion.

II. Failure to Timely Consider Parole After Revocation

¶6 Melnick first contends that the parole board improperly refused to consider him for parole within 180 days after his parole was revoked, as required by section 17-2-201(14), C.R.S. 2018. We note that his opening brief is missing a page that, it would appear, contains the argument relevant to this issue.

¶7 Nevertheless, Melnick's contention is a challenge to the parole board's decision not to grant him parole - or, more specifically, not to grant him a parole hearing. Nothing in the text of Rule 35 encompasses this type of claim, and Colorado appellate courts have consistently declined to review such claims under that rule. See In re Question Concerning State Judicial Review of Parole Denial , 199 Colo. 463, 464-65, 610 P.2d 1340, 1341 (1980) (holding that "a person denied parole can seek judicial review only as provided by C.R.C.P. 106(a)(2)"); People v. Huerta , 87 P.3d 266, 267 (Colo. App. 2004) (holding that because the defendant's challenge was not to the legality of his sentence, but rather to an act by the DOC or the parole board, the claim was not cognizable under Crim. P. 35(a) ). Thus, the postconviction court appropriately denied this claim as not within the purview of the rule.

III. Failure to Provide a Fair and Impartial Hearing

¶8 Melnick next asserts that his right to a fair and impartial parole revocation hearing was violated. He claims the hearing officer was biased because the written "Notice of Colorado Parole Board Action" form that memorialized the decision to revoke his parole was partially completed electronically and then printed five days before the revocation hearing. Thus, Melnick asserts that the hearing officer had prejudged the matter. Melnick also argues that he was prevented from introducing evidence at the hearing and that potentially exculpatory evidence had been destroyed.

¶9 Initially, we note that unlike Melnick's first assertion, this challenge is aimed at the lawfulness of the revocation of his parole. This claim is explicitly governed by Rule 35(c)(2)(VII). See White v. Denver Dist. Court , 766 P.2d 632, 636 (Colo. 1988) (stating that a defendant's assertions that his constitutional rights were violated at a parole revocation hearing are cognizable under Crim. P. 35 ). Therefore, we reject the People's argument that this claim is a challenge to an action of the parole board and, thus, not cognizable under Crim. P. 35.

¶10 We review de novo a trial court's denial of a Rule 35(c) motion without a hearing. People v. Gardner , 250 P.3d 1262, 1266 (Colo. App. 2010).

¶11 We conclude that the district court erroneously applied the language of Crim. P. 35(c). The court concluded that Melnick's appeal to the parole board had the same preclusive effect that a direct appeal of a conviction would have. See Crim. P. 35(c)(3)(VI), (VII) (requiring the postconviction court to deny claims that were raised, or that could have been raised, in a prior appeal). However, the parole statute explicitly provides for judicial review of parole revocation pursuant to section 18-1-410(1)(h), C.R.S. 2018. § 17-2-201(4)(b). If an appeal to the parole board were to preclude the pursuit of judicial review of the very same parole revocation procedures that were the subject of the appeal, section 17-2-201(4)(b) 's promise of judicial review would be illusory. We will not interpret a rule or statute in such a way as to make other statutory language superfluous. People v. Burnett , 2019 CO 2, ¶ 21, 432 P.3d 617. Thus, Melnick's postconviction challenge is not barred as successive merely because he appealed his parole revocation to the parole board.

¶12 Even if not time barred, a Rule 35 motion may be denied without a hearing if the motion, files, and record clearly establish that the defendant's allegations are without merit and do not warrant relief. Ardolino v. People , 69 P.3d 73, 77 (Colo. 2003). Similarly, summary denial is appropriate where the allegations are "bare and conclusory in nature." People v. Venzor , 121 P.3d 260, 262 (Colo. App. 2005). On the other hand, a defendant need not set forth the evidentiary support for his or her allegations in a Rule 35 motion, but instead need only assert facts that if true would provide a basis for relief. White , 766 P.2d at 635.

¶13 Melnick asserted facts that, if true, may warrant relief. First, he asserted that the hearing officer had prejudged his case. In support, he points to the preprinted form of disposition. It is, of course, possible that the blank form was printed, but no disposition was actually filled in until after the hearing. Or it is possible, as Melnick intimates, that because this form is only needed in the event that the revocation allegations are sustained, the hearing officer did not need to print the form unless he knew he was going to use it. However, neither conclusion can be reached without the benefit of testimony from the hearing officer.

¶14 Second, Melnick asserts that he was denied the opportunity to present witnesses and evidence. In exhibits attached to his postconviction motion, Melnick identifies specific witnesses and the general subject of their testimony.

¶15 Third, he alleges that he was denied the benefit of potentially exculpatory evidence because the cell phone that contained such evidence was destroyed by law enforcement officials. He asserts that certain text messages on his phone would have corroborated his claim that his supervisor at work had provided false information that led to his termination from employment, which in turn led to his parole revocation.

¶16 If these allegations were established following a hearing, the revocation of Melnick's parole may have been unlawful. Melnick is entitled to a hearing and the appointment of counsel to assist him at that hearing.

IV. Conclusion

¶17 Accordingly, the order is affirmed as to the denial of Melnick's challenge to the parole board's failure to provide him a new parole hearing within 180 days. The remainder of the order is reversed. The matter is remanded to the district court with instructions to appoint counsel for Melnick and conduct a hearing on Melnick's claims regarding the alleged improprieties in the revocation hearing.

JUDGE TAUBMAN and JUDGE BERGER concur.


author: Opinion by JUDGE RICHMAN

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dana ROEHRS, Defendant-Appellant.
    Court of Appeals No. 16CA2229
    Colorado Court of Appeals, Division VI.
    Announced March 7, 2019
    Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado, for Defendant-Appellant
   Opinion by JUDGE RICHMAN

¶ 1 Defendant, Dana Roehrs, appeals the judgment of conviction entered on a jury verdict finding her guilty of retaliation against a witness and harassment. We reverse the judgment of conviction and remand with directions to grant Roehrs a new trial before a different judge.

I. Background

¶ 2 Roehrs was an interested party in a dependency and neglect hearing at which Judge Theresa M. Cisneros presided. At the hearing, Sergeant Couch, of the Teller County Sheriff's Department, testified concerning Roehrs's presence at the scene of an investigation that he was conducting. During Sergeant Couch's testimony, Roehrs stood up, walked toward the witness stand, and said, "You're a liar. I am going to have your job." Judge Cisneros asked Roehrs to leave the courtroom, a directive that Roehrs followed. After testifying, Sergeant Couch left the courtroom. On his way to the clerk's office, he passed Roehrs, who was sitting on a bench in the hallway. As he passed, he heard Roehrs say, "I'm going to fuck you up."

Sergeant Couch responded, "What did you say.... Are you threatening me?" Roehrs responded, "I'm going to sue you." Sergeant Couch replied, "What did you say before that?" Roehrs answered, "I said, I am going to sue you."

¶ 3 As a result of Roehrs's behavior at the courthouse, the People charged her with retaliation against a witness, harassment, and intimidating a witness. § 18-8-704(1)(a), C.R.S. 2018; § 18-8-706, C.R.S. 2018; § 18-9-111(1)(h), C.R.S. 2018. As the presiding judge at the dependency and neglect hearing, Judge Cisneros witnessed some of the behavior and statements that were at issue in the later criminal trial on these charges. The substance, tone, and intent of Roehrs's courtroom statements were disputed at trial, as was her location within the courtroom when she made the statements. Moreover, according to Sergeant Couch, Judge Cisneros later called him and the attorneys into her chambers to discuss what had happened outside the courtroom. During that meeting, Sergeant Couch told Judge Cisneros about the incident with Roehrs. Nonetheless, Judge Cisneros was assigned to preside over the trial on these criminal charges.

¶ 4 Before trial, Roehrs's counsel moved to recuse Judge Cisneros on the grounds that because Judge Cisneros had personal knowledge of the facts to be tried and was a material witness to Roehrs's conduct, there was an appearance of bias or prejudice. Judge Cisneros denied the motion, ruling that Roehrs had failed to prove bias or personal knowledge of disputed facts.

¶ 5 Judge Cisneros then presided over all proceedings in the district court. The jury found Roehrs guilty of retaliation against a witness and harassment. Roehrs was acquitted on the charge of intimidating a witness. Judge Cisneros sentenced Roehrs to four years in the custody of the Department of Corrections and five years of parole for the retaliation conviction, in addition to six months in county jail for the harassment conviction, to run concurrently to her four-year prison sentence.

¶ 6 On appeal, Roehrs contends that the trial court erred in denying her motion to recuse and in imposing an unduly punitive sentence. Because we reverse and remand for a new trial based on the denial of the motion to recuse, we do not reach the sentencing issue.

II. Recusal

A. Applicable Law

¶ 7 We review a trial court's ruling on a motion to disqualify a judge de novo. Smith v. Dist. Court , 629 P.2d 1055, 1056 (Colo. 1981). When evaluating a motion to recuse, we must bear in mind that a judge must not be tainted by bias or partiality. People v. Julien , 47 P.3d 1194, 1197 (Colo. 2002). A criminal defendant has a constitutional right to have an impartial judge sit on her case at all stages of the proceedings. People v. Hagos , 250 P.3d 596, 611 (Colo. App. 2009). "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

¶ 8 Also essential to our review are the statutes, rules, and codes that govern judicial conduct in Colorado. Smith v. Beckman , 683 P.2d 1214, 1216 (Colo. App. 1984) (stating that when a judge considers the sufficiency of a motion for disqualification, she must consider the applicable statutes and rules of procedure as well as the Code of Judicial Conduct). These laws delineate three fundamental limitations on a judge's authority to preside over a criminal case where the judge has knowledge of the allegedly criminal actions.

¶ 9 First, section 16-6-201(1)(d), C.R.S. 2018, and Colorado Rule of Criminal Procedure 21(b)(1)(IV) provide that a judge shall be disqualified when she is "in any way interested or prejudiced with respect to the case, the parties, or counsel."

¶ 10 Second, Canon 2 of the Colorado Code of Judicial Conduct states that "[a] judge shall perform the duties of judicial office impartially, competently, and diligently." Implementing that canon with respect to disqualification, Rule 2.11(A) states as follows:

A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding .

C.J.C. 2.11(A) (emphasis added). Thus, Rule 2.11(A)(1) goes further than section 16-6-201(1)(d) and Crim. P. 21(b)(1)(IV) in explicitly including not only personal bias and prejudice as a basis for disqualification but also reasonable questions regarding partiality that arise when a judge has "personal knowledge of facts that are in dispute" in a proceeding. Accordingly, CRE 605 provides that the judge presiding at trial may not testify in that trial as a witness, even if no objection is made.

¶ 11 Third, C.J.C. Rule 2.11(A)(2)(d) further states that a judge's impartiality might reasonably be questioned if a judge knows that she is "likely to be a material witness in the proceeding."

¶ 12 To determine whether recusal is warranted in light of these limitations, a judge must evaluate the sufficiency of the motion and affidavits, accepting the facts stated therein as true. People v. Botham , 629 P.2d 589, 595 (Colo. 1981), superseded by rule on other grounds as stated in People v. Garner , 806 P.2d 366, 370 (Colo. 1991). A motion is legally sufficient when it states "facts from which it may reasonably be inferred that the judge has a bias or prejudice that will prevent him from dealing fairly with the defendant." Id. The court must examine both the actuality and the appearance of fairness in light of the facts alleged. Id. ; see Estep v. Hardeman , 705 P.2d 523, 526 (Colo. 1985) ("Thus, either actual prejudice on the part of the trial judge or its mere appearance can require the disqualification of that judge."). Even if the judge is entirely convinced of her own impartiality, she must take care not to allow the justice system to be impugned by an appearance of partiality. Botham , 629 P.2d at 595. This concern must be given the "highest consideration in ruling on a motion for disqualification" to secure the confidence of litigants and maintain public respect for the courts. Smith , 683 P.2d at 1216.

B. Procedural Sufficiency of the Motion and Affidavit

¶ 13 As an initial matter, the People argue that Roehrs's motion fails on procedural grounds. They correctly note that section 16-6-201(3) and Crim. P. 21(b)(1) require that the motion be supported by affidavits from at least two credible persons who are not related to the defendant. Roehrs's motion was supported by only one affidavit from her counsel.

¶ 14 The record does not contain any indication that the prosecution objected to the motion to recuse on this basis when it was filed. The motion was also renewed at a pretrial hearing, and the prosecution again made no objection on this basis. However, a party can ordinarily defend the judgment of the trial court on any ground supported by the record. People v. Eppens , 979 P.2d 14, 22 (Colo. 1999). Nonetheless, due to the unusual facts at issue in this case and the resulting strong appearance of impropriety, we decline to dispose of this claim on procedural grounds for several reasons.

¶ 15 The judge was aware of the facts on which the motion was based and did not dispute those facts. See People v. Owens , 219 P.3d 379, 385-86 (Colo. App. 2009) (reviewing the merits of a petition for rehearing in which a motion to recuse a judge was made without affidavits, because the judge was aware of the facts alleged and did not dispute them). Also, the affidavit was sufficient to verify the facts set forth in the motion. Botham , 629 P.2d at 596 (stating that the affidavits need not contain all the essential facts but must verify those facts set forth in the motion). Moreover, had this technical deficiency been raised before the trial court, Roehrs may well have been able to cure it by submitting a second affidavit. Owens , 219 P.3d at 386 (noting that in the interests of judicial economy, review on the merits is warranted where a court anticipates that a defendant could immediately supplement the motion with the proper affidavits). Finally, the trial court addressed the merits of the motion and denied it only on the merits. We therefore also choose to address the merits. See People v. Fitzgibbons , 909 P.2d 1098, 1101 (Colo. 1996) (noting that the respondent filed no affidavit, but the hearing board reached the merits of the case and the court would do likewise); People in Interest of C.Y. , 2018 COA 50, ¶¶ 11-12, 417 P.3d 975 (considering the merits of a motion to disqualify the judge, despite the lack of affidavits, where a judge solicited the motion and addressed it in open court on the merits).

C. Merits of the Motion and Affidavit

¶ 16 In support of her motion, Roehrs alleged the following facts:

• The probable cause affidavit supporting the criminal charges stated that Roehrs stood up at the "defense" table at the dependency and neglect hearing, accused Sergeant Couch of lying, and threatened to "have his job." Roehrs began walking to the witness box, and Sergeant Couch stood up to defend himself if necessary. Judge Cisneros ordered Roehrs out of the courtroom.
• This series of events occurred in front of Judge Cisneros and constituted more than half the contents of the probable cause affidavit.
• The probable cause affidavit also alleged that Roehrs told Sergeant Couch, "I'm going to fuck you up!"
• Judge Cisneros called the attorneys and Sergeant Couch into her chambers to discuss what had happened in the hallway outside the courtroom. During that discussion, Sergeant Couch told the judge about the incident with Roehrs.

¶ 17 Based on these statements, Roehrs argued that Judge Cisneros had personal knowledge of disputed facts and was a material witness to Roehrs's conduct, creating an appearance of bias or prejudice with regard to "trial procedure, including but not limited to, [the] preliminary hearing, argument on [the] motions for judgment of acquittal, objections, defendant testimony and evidentiary rulings." (In fact, at trial, Roehrs admitted only that she had accused Sergeant Couch of lying on the stand and that she had threatened to sue him during their confrontation in the hallway. The remaining facts were disputed.)

¶ 18 Judge Cisneros found the motion insufficient on three grounds. First, citing Comiskey v. District Court , 926 P.2d 539, 545 (Colo. 1996), she noted that "information a judge learns in the performance of his or her judicial duties is generally not sufficient grounds for disqualification." Because the behavior recounted in the supporting affidavit largely occurred during a hearing, Judge Cisneros found that any knowledge she gained during the hearing was not a proper basis for disqualification. Second, she noted that the motion was silent about what she, Sergeant Couch, and the attorneys had discussed in chambers, and, therefore, it did not establish that she had personal knowledge of disputed facts. Third, she found that none of the alleged facts established that she was biased or prejudiced against Roehrs.

¶ 19 We agree with Judge Cisneros's conclusion that the facts alleged in the motion fail to establish actual bias or prejudice on her part, nor does the record demonstrate that the judge harbored actual bias or prejudice against Roehrs during any part of the trial. It is clear that Judge Cisneros's conduct was competent and professional.

¶ 20 With respect to the in-chambers meeting with Sergeant Couch and the attorneys, the record does not support the judge's assertion that the motion was silent about what was discussed. The motion stated that in chambers they discussed "what happened outside the courtroom." This claim is supported in the affidavit, wherein Roehrs's counsel noted that "Sergeant Couch told the Honorable Judge Cisneros about the incident" in chambers. As a result, Judge Cisneros had knowledge of Sergeant Couch's version of the events in the hallway. This occurrence, however, did not give the judge personal knowledge of disputed facts. Neither party disputed that, before trial, Sergeant Couch recited roughly the same version of the events in the hallway that he testified to at trial. Therefore, we do not find the in-chambers meeting relevant to our analysis of whether Judge Cisneros should be disqualified except insofar as it contributes to an overall appearance of bias or prejudice.

¶ 21 With regard to Judge's Cisneros's knowledge of what transpired in the courtroom, the court's order is also correct when it asserts that what a judge learns in her judicial capacity is ordinarily an appropriate basis for her observations and "the use of such information is not the kind of matter that results in disqualification." Smith , 629 P.2d at 1057. Conversely, when a judge learns something from a source unconnected to her judicial role, she may be disqualified on that basis. United States v. Grinnell Corp. , 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966) (noting that in order to be disqualifying, the alleged bias must come from an extrajudicial source, not what the judge observed while presiding over the case); Comiskey , 926 P.2d at 545.

¶ 22 This rule has come to be known as the "extrajudicial source doctrine," and its application will ordinarily protect a judge from disqualification based on knowledge gained in the course of her judicial duties. Liteky v. United States , 510 U.S. 540, 544, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (recognizing the doctrine and explaining that to be disqualifying, alleged bias and prejudice must "stem from an extrajudicial source" (quoting Grinnell , 384 U.S. at 583, 86 S.Ct. 1698 )). The doctrine applies where a defendant moves to disqualify a judge on the basis that she has previously ruled against him. People v. Boehmer , 767 P.2d 787, 790 (Colo. App. 1988). It similarly prevents comments demonstrating a negative opinion of the parties or witnesses from serving as a basis for disqualification as long as such comments arose from knowledge gained during court proceedings. People v. Dobler , 2015 COA 25, ¶ 26, 369 P.3d 686 (noting that judicial statements that are "critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge," unless the opinion comes from an extrajudicial source (quoting Liteky , 510 U.S. at 555, 114 S.Ct. 1147 )). The extrajudicial source doctrine even counsels against disqualification where a judge has formed an opinion regarding the guilt or innocence of a defendant unless the opinion is so pronounced that it is likely to affect the judge's ability to be impartial at trial. Walker v. People , 126 Colo. 135, 145, 248 P.2d 287, 293 (1952), superseded by rule on other grounds as stated in People in Interest of E.G. , 2016 CO 19, ¶ 13 n.3, 368 P.3d 946.

¶ 23 We therefore consider the following question in this case: When a judge has witnessed an alleged criminal offense in her courtroom, does the extrajudicial source doctrine allow her to preside over the criminal trial of the offense? To answer this question, we must consider the doctrine's limitations and whether, in this case, its protections must yield to serious concerns about the appearance of partiality.

D. The Scope of the Extrajudicial Source Doctrine

¶ 24 Contrary to the People's position, the extrajudicial source doctrine does not automatically shield a judge from disqualification due to a judge's courtroom knowledge or activities. In Liteky , the Supreme Court noted that "[s]ince neither the presence of an extrajudicial source necessarily establishes bias, nor the absence of an extrajudicial source necessarily precludes bias, it would be better to speak of the existence of a significant (and often determinative) 'extrajudicial source' factor , than of an 'extrajudicial source' doctrine , in recusal jurisprudence." 510 U.S. at 554-55, 114 S.Ct. 1147. The doctrine has repeatedly been defined as limited in scope. See, e.g. , Nichols v. Alley , 71 F.3d 347, 351 (10th Cir. 1995) (noting that the extrajudicial source doctrine is but one factor in the disqualification analysis); Davis v. Bd. of Sch. Comm'rs , 517 F.2d 1044, 1051 (5th Cir. 1975) (noting that there is an exception to the doctrine where pervasive bias and prejudice have been demonstrated), superseded by statute on other grounds , Act of Dec. 5, 1974, Pub. L. No. 93-512, 88 Stat. 1609.

¶ 25 Importantly, our supreme court has declined to view the extrajudicial source doctrine as a protection against disqualification in all cases, including those cases where a judge's impartiality is questioned based on knowledge she gained from courtroom proceedings. In Wright v. District Court , 731 P.2d 661, 665 (Colo. 1987), the supreme court disqualified a judge because his participation in successive cases raised an appearance of impropriety. The trial judge presided over a case in which the plaintiff claimed that his attorney had committed malpractice. During the trial, the judge heard evidence concerning the attorney's unprofessional conduct toward the plaintiff. Consequently, the judge filed a grievance with the Colorado Supreme Court Grievance Committee recommending "harsh discipline" against the attorney. Id. at 663. Subsequently, the same judge was assigned to preside over a different malpractice case against the attorney's firm and several of its other partners. Counsel for the firm requested the judge's recusal and notified the court that he wished to take the judge's deposition in the grievance proceedings. Id. at 664. The judge denied the motion for disqualification. In reversing the trial court's order, the Wright court concluded that because the judge might appear as a witness against the attorney in the grievance proceeding, his participation in the malpractice case against the attorney's partners and firm created an appearance of impropriety. Id. This appearance of impropriety arose entirely from opinions formed as a result of the judge's duties in the preceding case.

¶ 26 Similarly, in In re Estate of Elliott , 993 P.2d 474 (Colo. 2000), a judge gained knowledge of a potential crime while presiding over a civil contempt case and later referred the case to the district attorney for criminal prosecution. Noting that the judge appeared to be personally involved in the conflict and that she was a potential witness in the subsequent criminal trial, the supreme court held that a different judge should be substituted in the contempt proceedings on remand. Id. at 481-82. The fact that the judge had gained her knowledge of the facts while performing her judicial duties did not preclude her disqualification. See also Estep , 705 P.2d at 525-27 (requiring disqualification where a judge who had reviewed a defendant's postconviction motion stated, "I hope this witness is more credible than your other witness" in response to the defendant's request to depose a new witness).

¶ 27 In addition, where Colorado courts have declined to require disqualification based on a judge's participation in prior proceedings, they have repeatedly emphasized that there was no obligation to recuse because the judge was not presiding over a case in which she might be a witness. People v. Schupper , 2014 COA 80M, ¶¶ 63-65, 353 P.3d 880 (declining to disqualify a judge who had witnessed perjury in his courtroom because the perjury case had been transferred to another court, and he was therefore not presiding over a case in which he was "likely to be a material witness in the proceeding " (quoting C.J.C. 3(C)(1)(d)(IV) (2009))); Hagos , 250 P.3d at 612-13 (declining to disqualify a judge because the affidavit "indicated that the judge did not personally observe or hear any threats during the hearing").

¶ 28 Most significantly, the People do not cite any Colorado case, and we have found none, in which the extrajudicial source doctrine protects against disqualification when a judge witnesses a crime or part of a crime in her courtroom and then presides over the trial concerning that very same crime. Because Colorado law does not contain a case extending the extrajudicial source doctrine to cover this circumstance, we do not perceive that the extrajudicial source doctrine prevents disqualification here.

E. Application

¶ 29 Roehrs suggests that the judge was subject to disqualification under C.J.C. 2.11(A)(2)(d) because she was likely to be a material witness. However, she does not develop that argument in her brief. A material witness is one whose testimony goes to a "fact affecting the merits of the cause and about which no other witness might testify ." Schupper , ¶ 65 (quoting Ex parte Jones , 86 So.3d 350, 352 (Ala. 2011) ). Roehrs does not specify any facts about which only the judge could testify, and we note that the attorneys and Sergeant Couch were all witnesses to Roehrs's in-court behavior. They all could have testified in the criminal case, obviating the need for Judge Cisneros's testimony. Accordingly, we decline to base our ruling on the thread that the judge was subject to disqualification as a material witness.

¶ 30 However, even if Judge Cisneros was not a likely material witness, a judge need not be a likely material witness for disqualification to be mandated under the Code of Judicial Conduct. Rather, all that is required under Rule 2.11(A)(1) is personal knowledge of facts that are in dispute, which Judge Cisneros had in this case.

¶ 31 Based on the judge's personal knowledge of disputed facts, there was a substantial appearance of impropriety. This knowledge calls into question her ability to be impartial. "[A] judge cannot be, or cannot appear to be, impartial if he has personal knowledge of evidentiary facts that are in dispute."

In re M.C. , 8 A.3d 1215, 1229 (D.C. 2010) (quoting United States v. Alabama , 828 F.2d 1532, 1545 (11th Cir. 1987) (per curiam)).

¶ 32 In addition, the judge's knowledge of disputed facts would have affected her performance as a presiding judge. See Tripp v. Borchard , 29 P.3d 345, 346-47 (Colo. App. 2001) (disqualifying a judge from presiding over a malpractice case, in part, because he had acted as the settlement judge in prior litigation and therefore had personal knowledge of disputed evidentiary facts). For example, during the course of her participation in this case, Judge Cisneros presided over the preliminary hearing on the charge of retaliation against a witness. This charge required the State to show that Roehrs intentionally used a threat or act of harassment on Sergeant Couch as retaliation against him. See § 18-8-706(1). Sergeant Couch testified and was cross-examined at this hearing, providing testimony regarding whether Judge Cisneros forcefully ordered Roehrs to leave the dependency and neglect hearing or politely asked her to leave. This line of questioning was relevant to whether the judge seemed alarmed by Roehrs's behavior. Judge Cisneros was tasked with deciding whether the prosecution had demonstrated probable cause for the charges. In doing so, she was necessarily called on to examine the sufficiency of the evidence with respect to facts that she had personally observed, including whether Roehrs demonstrated sufficient intent to commit the crime and whether the judge herself had been alarmed by Roehrs's behavior when she ordered her out of the courtroom.

¶ 33 Though a judge is ordinarily protected from disqualification based on opinions, attitudes, and knowledge gained during her participation in judicial proceedings, the extrajudicial source doctrine does not prevent disqualification where those opinions, attitudes, and knowledge raise reasonable questions about a judge's ability to impartially weigh the testimony. While it is true that "[i]mpartiality is not gullibility," it is also true that to conduct a fair trial, a judge must not know too much. Liteky , 510 U.S. at 551, 114 S.Ct. 1147 (quoting In re J.P. Linahan, Inc. , 138 F.2d 650, 654 (2d Cir. 1943) ). She should not be in a position to contrast the evidence presented at hearings and at trial with her own memory of the conduct at issue. Accordingly, Roehrs's motion was sufficient to raise an appearance of bias or prejudice, making Judge Cisneros's continued participation improper.

¶ 34 The trial judge's actions in this case deviate from the standard delineated in C.J.C. 2.11(A) and the resulting appearance of bias requires us to reverse the conviction. Botham , 629 P.2d at 603 (reversing a criminal conviction, in part, on the basis that there was an appearance of prejudice against the defendant); see, e.g. , C.Y. , ¶¶ 14, 24-25 (reversing a termination decision where the judge operated under an appearance of impropriety); Wood Bros. Homes, Inc. v. City of Fort Collins , 670 P.2d 9, 10 (Colo. App. 1983) (reversing a judgment due to an appearance of partiality caused by a violation of the code).

III. Conclusion

¶ 35 We reverse the judgment of conviction and remand with directions to grant Roehrs a new trial before a different judge.

JUDGE NAVARRO and JUDGE WELLING concur.

      The People also charged Roehrs with harassment under section 18-9-111(1)(b), C.R.S. 2018, but later dismissed that charge on the first day of trial.

      We note that what Roehrs called a "motion to recuse" is also called a "motion to disqualify." We will use "recusal" and "disqualification" interchangeably here. C.J.C. 2.11 cmt. 1 ("The term 'recusal' is sometimes used interchangeably with the term 'disqualification.' ").

      Prejudice is "a leaning toward one side of a question involved, from other considerations than those belonging to it, or a bias in relation thereto which would in all probability interfere with fairness in judgment ...." Walker v. People , 126 Colo. 135, 146, 248 P.2d 287, 294 (1952), superseded by rule on other grounds as stated in People in Interest of E.G. , 2016 CO 19, ¶ 13 n.3, 368 P.3d 946.

      Under the code, "impartiality" means the "absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge." "Knowledge" means "actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances." C.J.C., Terminology.

      We note that because Roehrs submitted an affidavit in support of her motion, this case is distinguishable from other cases in which courts declined to review motions for disqualification due to more substantial procedural inadequacies. Altobella v. People , 161 Colo. 177, 184, 420 P.2d 832, 835 (1966) (declining to consider a defendant's second motion for change of judge where the defendant attempted, unsuccessfully, to incorporate previously filed affidavits by reference); People v. Taylor , 131 P.3d 1158, 1166-67 (Colo. App. 2005) (holding that the trial court properly denied a defendant's motion for recusal where no affidavits were attached to the motion).

      Even had no motion been made, based upon her own knowledge of the factual basis for the motion, Judge Cisneros had a duty to recuse herself sua sponte if the statutes and rules governing disqualification precluded her from presiding over this case. § 16-6-201(2), C.R.S. 2018; Crim. P. 21(b)(2) ; C.J.C. 2.11(A).

      Walker was decided under chapter 170, section 1 of the 1935 Colorado Statutes Annotated, which contained a narrower standard requiring that a judge be deemed incompetent to hear or try the case where she is "interested or prejudiced" and not including the modern standard stated in C.J.C. 2.11(A)(1).

      Our holding here should not be construed to narrow a judge's ability to participate in contempt actions arising from a case in which she presided where it is otherwise proper under the statutes, rules, or common law and where she is not presiding over a case in which she is likely to be a witness. See § 18-1-104(3), C.R.S. 2018; C.R.C.P. 107 ; People v. Barron , 677 P.2d 1370, 1372-74 (Colo. 1984) (examining a court's common law power to punish a defendant for criminal contempt).

      This language now appears in C.J.C. 2.11(A)(2)(d).

      Although the motion at issue in this case did not cite CRE 605 and the parties also failed to cite it on appeal, CRE 605 precludes a judge from presiding at trial in a case where she is a witness, demonstrating a concern for the appearance of partiality raised in such a circumstance. In fact, under substantially similar versions of CRE 605, courts in other states have noted the propriety of disqualifying judges who have personal knowledge of disputed facts even where a judge does not testify because the judge's knowledge, nonetheless, raises an appearance of partiality.
      The problem attendant to a judge having personal knowledge of the facts is that he may thereby be transformed into a witness for one party.... Whether, in a bench trial, a judge can avoid an involvement destructive of impartiality where he has personal knowledge of material facts in dispute is a question that cannot be answered satisfactorily....
      State v. Barker , 227 Neb. 842, 420 N.W.2d 695, 700-01 (1988) (quoting Price Bros. Co. v. Phila. Gear Corp. , 629 F.2d 444, 447 (6th Cir.1980) ); see State v. Gardner , 661 N.W.2d 116, 118 (Iowa 2003) (declining to reverse a conviction because the judge was not a witness in the same proceeding at which he presided but noting that the rule prohibiting a judge from being a witness "is violated whenever the judge functions as a witness, even though the judge may not actually take the stand to testify").