author: Opinion by JUDGE HAWTHORNE

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Allen Michael SPARKS, Defendant-Appellant.
    Court of Appeals No. 15CA0171
    Colorado Court of Appeals, Division II.
    Announced January 11, 2018
    Cynthia H. Coffman, Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Douglas K. Wilson, Colorado State Public Defender, Anne T. Amicarella, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE HAWTHORNE

¶ 1 In appealing the judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child, defendant, Allen Michael Sparks, raises an issue of first impression in Colorado: When a child victim is alleged to have initiated the sexual contact with an adult defendant, does the phrase "subjects another ... to any sexual contact" in section 18-3-405(1), C.R.S. 2017, the sexual assault on a child statute, require the People to prove that the defendant caused the victim to become "subservient or subordinate" or to prove that the child victim initiated the sexual contact at the defendant's order, request, or directive? We answer that question "no." For that reason and because we reject the other issues raised on appeal, we affirm the judgment of conviction.

I. Facts and Procedural History

¶ 2 Sparks attended a party at his wife's cousin's house. Months later, the cousin's daughter (A.M.) reported that while she was at the party and Skyping on her computer, Sparks touched her breast over her clothing. She also reported that as she was Skyping, her friend S.F. (the victim) and Sparks were behind her, and that through her computer's camera she saw the victim grabbing Sparks's groin area and making other movements. She also reported hearing heavy breathing and gasping. At the time, A.M. was fourteen and the victim was thirteen. The police later interviewed Sparks, and he admitted to what A.M. reported, as well as to touching the victim's groin, breast, and bottom area. Sparks was charged with two counts of sexual assault on a child and two counts of contributing to the delinquency of a minor, one count of each for the victim and A.M. He was convicted of one count of sexual assault on a child as to the victim.

II. The Issue of First Impression is Raised in the Context of Prosecutorial Misconduct

¶ 3 Sparks contends that the prosecutor engaged in misconduct by misstating the law and evidence during closing argument. We disagree.

A. Standard of Review

¶ 4 We review a claim of prosecutorial misconduct by engaging in a two-step analysis. Wend v. People , 235 P.3d 1089, 1096 (Colo. 2010). First, we review whether the prosecutor's conduct was improper considering the totality of the circumstances. Second, we determine whether the conduct warrants reversal under the applicable standard of review. Id. Sparks did not object, so we review for plain error. People v. McMinn , 2013 COA 94, ¶ 58, 412 P.3d 551. Prosecutorial misconduct constitutes plain error where it (1) is flagrant or glaringly or tremendously improper and (2) so undermines the trial's fundamental fairness as to cast serious doubt on the judgment of conviction's reliability. Prosecutorial misconduct in closing argument rarely constitutes plain error. Id.

B. Analysis

1. The Prosecutor Did Not Misstate the Law

¶ 5 Sparks contends that the prosecutor misstated the law by telling the jury in closing argument that it did not matter that the victim initiated the sexual contact, because, he argues, if the victim subjected him to sexual contact, the acts did not fall under the sexual assault statute. Specifically, Sparks argues that the words "subjects another ... to" in the statute required the prosecution to prove that he caused the victim to become "subservient or subordinate" or that the child victim initiated the sexual contact at his "order, request, or directive." We disagree.

¶ 6 Because Sparks was charged with sexual assault on a child, the prosecution was required to prove that he

1. knowingly,
2. subjected another person who was not his spouse to any sexual contact, and
3. that person was less than fifteen years of age, and
4. the defendant was at least four years older than that person at the time of the commission of the act.

See § 18-3-405(1) ; see also COLJI-Crim. 3-4:31 (2016).

¶ 7 Sexual contact "means the knowing touching of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim ," including over the clothing, "for the purposes of sexual arousal, gratification, or abuse." § 18-3-401(4), C.R.S. 2017 (emphasis added). It is not a defense that a defendant does not know the age of a child victim. § 18-1-503.5(3), C.R.S. 2017.

¶ 8 We read these statutes together to give effect to the entire statutory scheme and give consistent and sensible effect to all its parts. See People v. Steen , 2014 CO 9, ¶ 9, 318 P.3d 487. The sexual assault statute's plain language requires the prosecution to prove that a defendant knowingly subjected another to any sexual contact. Sexual contact includes the touching of the defendant's intimate parts by the victim. § 18-3-401(4).

¶ 9 Sparks asserts that the words "subjects another" are understood as causing another to become subservient or subordinate. But we conclude that in the context of the statutory scheme prohibiting sexual assault on a child, the General Assembly has given "subjects another" a broader meaning. That meaning encompasses an adult defendant allowing a child to touch the defendant's intimate parts. And by doing so, the defendant subjects the child to sexual contact. We reach this conclusion for four reasons.

¶ 10 First, accepting Sparks's argument would result in making some form of force or threat by a defendant an element of the sexual assault on a child offense. But the use of force or a threat cannot be considered an element of sexual assault on a child because the General Assembly clearly treats the use of force or threats by the defendant as a sentence enhancer, not an element, of the crime. See § 18-3-405(2)(a)-(c).

¶ 11 Second, "subjects another" cannot be reasonably read to exclusively require that a defendant initiate or cause the contact, because sexual contact is statutorily defined to include the knowing touching of the defendant's intimate parts by the victim. § 18-3-401(4). And as to the victim touching the defendant, the statute does not contain any mention of initiation, coercion, or persuasion by the defendant. So construing the statute to require that the prosecution show some sort of coercive or persuasive act by the defendant to make the victim subservient or subordinate is contrary to the statute's plain language and would require us to add words to the statute. This we cannot do. People v. Diaz , 2015 CO 28, ¶ 15, 347 P.3d 621.

¶ 12 And we note that in other contexts, courts have held that "a person 'subjects' another ... if he or she affirmatively acts, participates in another's affirmative act , or omits to perform an act which he or she is legally required to do and causes the complained-of deprivation." Santibanez v. Holland , No. CV 10-09086-GAF (MAN), 2012 WL 933349, at *6 (C.D. Cal. Jan. 24, 2012) (emphasis added) (citing Johnson v. Duffy , 588 F.2d 740, 743 (9th Cir. 1978) ) (construing 42 U.S.C. § 1983 (2012) ).

¶ 13 Third, our General Assembly has made clear that in any unlawful sexual contact or activity between a child and an adult, the adult is the culpable actor. For example, in the context of sexual exploitation of a child, a child under eighteen years of age is incapable of giving informed consent to the use of his or her body for a sexual purpose. See § 18-6-403, C.R.S. 2017. Thus, the law will not recognize the child as the initiator of unlawful sexual contact or activity with an adult. See United States v. De La Cruz-Garcia , 590 F.3d 1157, 1160 (10th Cir. 2010) (construing sections 18-3-401(4) and 18-3-405(1) and recognizing that legally nonconsensual sexual activity between an adult and a minor victim "inherently involves taking unfair or undue advantage of the victim"); Davis v. United States , 873 A.2d 1101, 1107 (D.C. 2005) ("As his eleven-year-old daughter was legally incapable of consenting to [defendant's] sexual advance, coercion was implicit and need not have been otherwise shown."). So construing the phrase "subjects another" as requiring the prosecution to prove conduct by a defendant that coerced or persuaded a child victim into touching the defendant's intimate parts would undermine the sexual assault on a child statutory scheme.

¶ 14 Finally, Sparks's interpretation would lead to an absurd result where a defendant could, without violating the sexual assault on a child statute, knowingly allow, by passive acceptance, a child victim to touch the defendant's intimate parts because the defendant did not coerce or persuade the victim, even if the defendant allowed the touching to continue. We must avoid interpretations that would lead to an absurd result. Doubleday v. People , 2016 CO 3, ¶ 20, 364 P.3d 193.

¶ 15 Our interpretation is consistent with other jurisdictions' courts that have considered this issue.

¶ 16 In State v. Severy , the Maine Supreme Court interpreted the phrase "subjects another" in an unlawful sexual contact statute to include a defendant's conduct of intentionally failing to stop a child from initiating sexual contact. 8 A.3d 715, 716, 718 (Me. 2010) (quoting Me. Rev. Stat. Ann. tit. 17-A, § 255-A(1) (2016) ) ("[A]n adult does 'subject' a child to sexual contact by failing to stop the child from touching the adult's genitals on multiple occasions and instead allowing the child to continue this contact."). The statute at issue in that case reads, in part: "A person is guilty of unlawful sexual contact if the actor intentionally subjects another person to any sexual contact and ... [t]he other person, not the actor's spouse, is in fact less than 12 years of age and the actor is at least 3 years older." Id. at 718 (quoting Me. Rev. Stat. Ann. tit. 17-A, § 255-A(1)(E-1) ).

¶ 17 The Severy court noted that "[t]he verb 'subject' is not defined by statute," and it concluded that the trial court's instruction to the jury that " 'subject' could mean, among other things, 'to cause to experience,' " was consistent with a common understanding of the term. Id. (citing Webster's Third New International Dictionary of the English Language Unabridged 2275 (2002)). The court held as follows:

Taking into account the language of all relevant statutes, and giving the statutory terms their common meaning, [defendant] could be found guilty if he intentionally caused the child to have contact with his genitals, for purposes of gratifying his sexual desire, by failing to act to stop the child. In other words, the jury could find him guilty if it found that, to arouse or gratify his sexual desire, [defendant] intentionally allowed the child to continue to touch his penis, instead of stopping her.

Id.

¶ 18 And in State v. Traylor , the Wisconsin Court of Appeals held that the trial court did not err in submitting to the jury a modified instruction that defined sexual contact with a child to include the defendant allowing the victim to touch his intimate parts. 170 Wis.2d 393, 489 N.W.2d 626, 630 (Wis. Ct. App. 1992). The defendant argued that the statute required "an affirmative act and [not] mere passivity" to constitute sexual contact with a child. Id. (citing Wis JI-Criminal 2103). The court rejected this argument and concluded that the defendant did not have to initiate sexual contact with the child, and "[i]f the defendant allows the contact, that is sufficient to constitute intentional touching because it indicates that the defendant had the requisite purpose of causing sexual arousal or gratification." Id.

¶ 19 We conclude that the prosecutor's closing arguments did not misstate the law and did not constitute prosecutorial misconduct.

2. The Prosecutor Did Not Misstate the Evidence

¶ 20 Next, Sparks argues that the prosecutor misstated the evidence by saying A.M. saw improper sexual contact between the victim and Sparks through a computer camera while on Skype, and that Sparks knew exactly how old the victim was.

¶ 21 Prosecutors may comment on the evidence admitted at trial and the reasonable inferences that can be drawn from it. People v. Samson , 2012 COA 167, ¶ 31, 302 P.3d 311. Prosecutors may not, however, misstate the evidence. Id. at ¶ 32. Nor may they refer to facts not in evidence. People v. Castillo , 2014 COA 140M, ¶ 59, --- P.3d ---- (cert. granted Nov. 23, 2015).

¶ 22 A.M. testified that she saw the victim touching Sparks's groin area. While A.M. did not testify that she saw Sparks touch the victim, this was not necessary to show improper sexual contact. So, the prosecutor's statement did not misstate this evidence.

¶ 23 The prosecutor's closing comments that Sparks knew exactly the age of A.M.'s friends was also not improper. As we discuss below, the court did not err by admitting this evidence. In his interview with the police, Sparks said that he thought the victim was sixteen, but "heard" she was fourteen. And Sparks is related to A.M. Given this evidence, it was not improper for the prosecutor to infer that Sparks knew that A.M.'s friends would be her age as well.

III. Sufficiency of the Evidence

¶ 24 Sparks contends that because the only evidence as to the victim's age was inadmissible, the prosecution failed to produce sufficient evidence to prove beyond a reasonable doubt that he committed sexual assault on a child.

¶ 25 We review the record to determine whether the evidence before the jury was sufficient in both quantity and quality to sustain the conviction. Dempsey v. People , 117 P.3d 800, 807 (Colo. 2005). The prosecution has the burden of establishing a prima facie case of guilt, which requires it to introduce sufficient evidence to establish guilt. Id. This requires that the evidence be viewed in the light most favorable to the prosecution and that it be substantial and sufficient to support the defendant's guilt beyond a reasonable doubt. Id.

¶ 26 A.M. and the detective both testified that the victim was under the age of fourteen at the time of the alleged crime. That evidence was admitted without objection and was sufficient for the jury to find beyond a reasonable doubt that the victim was less than fifteen years of age at the time of the crime and to convict Sparks of sexual assault on a child. Even if that evidence was arguably excludable, it was "admitted without objection and retained without a motion to strike." And as we conclude in Part IV below, it was not plain error to admit the evidence, so "the jury [was] generally free to consider it." People v. McGrath , 793 P.2d 664, 667 (Colo. App. 1989). Accordingly, we conclude that the evidence was sufficient.

IV. Testimony and Statements About Victim's Age

¶ 27 Sparks next contends that the court erred in admitting a detective's and A.M.'s testimony and his own interview statement as to the victim's age because they were hearsay and violated his constitutional rights under both the Federal and Colorado Confrontation Clauses. We discern no reversible error.

A. Testimony and Statement

¶ 28 The prosecutor asked A.M., who had previously testified that she was fourteen years old at the time of the offense, if the victim was the same age as her, to which she replied, "No. She is a year younger than me." The prosecutor also asked a detective if he had "determine[d] whether or not [the victim was] under 15 [years old] at the time of the offense?" The detective responded, "I did." During Sparks's interview, he admitted that he had "heard" that the victim was fourteen years old, but he had thought she was "at least" sixteen years old. The interview video was admitted into evidence. All of the above evidence was admitted without objection.

B. Analysis

1. Confrontation Clauses

¶ 29 "Normally, we review a trial court's evidentiary rulings for an abuse of discretion; however, whether the admission of evidence violates the Confrontation Clause is reviewed de novo." People v. Barry , 2015 COA 4, ¶ 65, 349 P.3d 1139. Where, as here, the Confrontation Clause issue is not preserved, we review for plain error. Id. But we require a sufficient record to review an alleged unpreserved constitutional error. See People v. Allman , 2012 COA 212, ¶ 15, 321 P.3d 557 ("[T]he absence of a sufficient record is a common basis for refusing to review unpreserved constitutional error....").

¶ 30 Our supreme court has "long interpreted Colorado's Confrontation Clause as commensurate with the federal Confrontation Clause." Nicholls v. People , 2017 CO 71, ¶ 31, 396 P.3d 675 (citing Compan v. People , 121 P.3d 876, 885 (Colo. 2005), overruled by Nicholls , 2017 CO 71, 396 P.3d 675 ); Compan , 121 P.3d at 885 (rejecting the petitioner's argument that the state confrontation clause protects broader rights than the Federal Confrontation Clause).

¶ 31 Considering this consistency between state and federal law, we conclude that Sparks's own prior statements in the interview video do not implicate either the Federal or Colorado Confrontation Clause. See, e.g. , United States v. Brown , 441 F.3d 1330, 1358-59 (11th Cir. 2006) ("[A] party cannot seriously claim that his or her own statement should be excluded because it was not made under oath or subject to cross-examination." (quoting 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 802.05[3][d] (2d ed. 2005))); United States v. Zizzo , 120 F.3d 1338, 1354 (7th Cir. 1997) ("We likewise find no merit in [defendant's] suggestion that admission of the challenged evidence violated the Confrontation Clause. [Defendant's] own statements, admitted under [Fed. R. Evid.] 801(d)(2)(A), obviously pose no problem."); United States v. Nazemian , 948 F.2d 522, 525-26 (9th Cir. 1991).

¶ 32 As to A.M.'s testimony about the victim's age, Sparks concedes it was non-testimonial. More accurately, because A.M. was testifying at trial and available for cross-examination, her testimonial statements did not violate either the Federal or Colorado Confrontation Clause. People v. Argomaniz-Ramirez , 102 P.3d 1015, 1017-18 (Colo. 2004).

¶ 33 Sparks argues that the basis for the detective's knowledge of the victim's age "surely resulted from law enforcement asking" the victim and A.M. their ages. So, he asserts that the underlying basis for the detective's testimony was testimonial in nature and therefore violated the Federal and Colorado Confrontation Clauses. We construe this argument as asserting that because the victim provided her age in response to investigative questions, those statements were testimonial, see Davis v. Washington , 547 U.S. 813, 829, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and because the victim was not available for cross-examination, the detective's testimony violated Sparks's confrontation rights.

¶ 34 As the parties' briefings demonstrate, there is no record evidence from which the underlying basis for the detective's testimony can be determined. And the lack of objection by Sparks deprived the prosecutor of any opportunity to correct the alleged error or offer a non-hearsay basis for the testimony. Because there is not a sufficient record to allow us to review the alleged constitutional error in admitting such evidence, we decline to do so. People v. Greer , 262 P.3d 920, 930 (Colo. App. 2011) (Declining to review an alleged constitutional error first raised on appeal where "the record may not be complete and the trial court was not afforded an opportunity to rule."); see United States v. Zubia-Torres , 550 F.3d 1202, 1209-10 (10th Cir. 2008) (a lack of factual record made it impossible to determine if the defendant's substantive rights were affected); Allman , ¶¶ 14-16.

2. Evidentiary Rulings

¶ 35 Sparks contends that the court abused its discretion in admitting the detective's and A.M.'s testimony and his own interview statement as to the victim's age because the evidence was inadmissible hearsay without an exception.

¶ 36 We review the trial court's ruling on the admissibility of evidence for an abuse of discretion. And, where, as here, the issues were not preserved, we review for plain error. People v. Trujillo , 2015 COA 22, ¶ 8, 369 P.3d 693. Plain error is error that is so obvious that a trial court should be able to avoid it without benefit of objection, and the error must so undermine the trial's fundamental fairness as to cast serious doubt on the conviction's reliability. People v. Davis , 2012 COA 56, ¶ 39, 296 P.3d 219.

a. Sparks's Statement

¶ 37 Sparks argues that his interview statement was inadmissible hearsay because if he "heard" that the victim was fourteen years old, he must have been told that by someone else. See CRE 805 ; People v. Phillips , 2012 COA 176, ¶ 101, 315 P.3d 136 (noting that where a statement contains multiple layers of potential hearsay, a court must analyze each layer separately to determine whether a hearsay exclusion or exception applies).

¶ 38 Because CRE 805 is virtually identical to Fed. R. Evid. 805, we consider federal cases and authorities concerning the federal rule highly persuasive in interpreting and applying our own. See, e.g. , Faris v. Rothenberg , 648 P.2d 1089, 1091 n.1 (Colo. 1982) (" Fed. R. Civ. P. 63 is identical to C.R.C.P. 63. Thus, federal cases and authorities interpreting the federal rule are highly persuasive."); United Bank of Denver Nat'l Ass'n v. Shavlik , 189 Colo. 280, 282, 541 P.2d 317, 318 (1975) (deeming the authority and commentators on Fed. R. Civ. P. 14 to be persuasive because C.R.C.P. 14 is virtually identical).

¶ 39 Consistent with the federal rule, CRE 805 does not apply to Sparks's interview admission because as a party opponent his statement does not require firsthand knowledge to be admissible. See Blackburn v. United Parcel Serv., Inc. , 179 F.3d 81, 96-97 (3d Cir. 1999) ("Admissions by a party-opponent need not be based on personal knowledge to be admitted under [Fed. R. Evid.] 801(d)(2). Therefore, we need not be concerned here that the basis for [the defendant's] statement is likely hearsay ... which would ordinarily require an additional exception to make her statements admissible. See Fed. R. Evid. 805." (citing United States v. Ammar , 714 F.2d 238, 254 (3d Cir. 1983) )); Ammar , 714 F.2d at 254 ("[I]t is clear from the Advisory Committee Notes that the drafters intended that the personal knowledge foundation requirement of [Fed. R. Evid.] 602 should ... not [apply] to admissions (including coconspirator statements) admissible under [Fed. R. Evid.] 801(d)(2)."); see also Grace United Methodist Church v. City Of Cheyenne , 451 F.3d 643, 668 (10th Cir. 2006) ("[A]ny contention that [a party opponent's] letter was inadmissible under [Fed. R. Evid.] 801(d)(2) because his opinions in the letter were not rationally based on his perceptions lacks merit.");

30B Charles Alan Wright et al., Federal Practice and Procedure § 7043, Westlaw (database updated Sept. 2017) ("If an out-of-court speaker is not required to possess firsthand knowledge of a statement, the statement cannot be objected to simply because it relates information transmitted to the speaker by someone else."). We conclude that the trial court did not commit plain error.

b. A.M.'s Testimony

¶ 40 Sparks also argues that A.M.'s testimony was inadmissible hearsay because it was "likely based on some prior statement" by the victim or someone close to the victim. But, on the other hand, A.M. may have just as likely based her testimony on her personal knowledge as a friend in the same class at school as the victim, or on the victim's reputed age at school. If that was the case, A.M.'s testimony would not have been hearsay or would have fallen within an exception. See CRE 803(19) (providing a hearsay exception covering "[r]eputation among ... [her] associates, or in the community, concerning a person's birth ..."); cf. People v. Aryee , 2014 COA 94, ¶ 32, 356 P.3d 918 (there was sufficient evidence as to victim's age where part of the evidence included testimony from family friend).

¶ 41 Therefore, under the circumstances, we cannot conclude that the trial court's ruling admitting A.M.'s testimony was erroneous, much less obviously so. See People v. Petschow , 119 P.3d 495, 505 (Colo. App. 2004) ("Plain error assumes that the court should have intervened sua sponte because the error was so obvious."). Accordingly, we conclude that the trial court did not commit plain error.

c. Detective's Testimony

¶ 42 Similarly, we cannot determine the basis for the detective's testimony, but the hearsay exceptions discussed above would likely not be available here. For example, any statements to the detective about the victim's age would more likely be testimonial. Phillips, ¶ 121 (holding that statements to a police officer were testimonial where primary purpose of investigation was to prove past events for criminal prosecution). And any non-testimonial records or documents about her age would be subject to the best evidence rule. See CRE 1002 ; Banks v. People , 696 P.2d 293, 297 (Colo. 1985) (content of writing being directly at issue invokes best evidence rule). Again, the record offers no help.

¶ 43 But we cannot conclude that the trial court's ruling admitting the detective's testimony was obviously erroneous. See People v. Ujaama, 2012 COA 36, ¶ 42, 302 P.3d 296 ("To qualify as plain error, the error must be one that 'is so clear-cut, so obvious,' a trial judge should be able to avoid it without benefit of objection." (quoting People v. Taylor, 159 P.3d 730, 738 (Colo. App. 2006) )).

¶ 44 Even assuming that admitting the detective's testimony was obvious error, the error would be harmless in light of A.M.'s testimony and Sparks's interview statement. People v. James , 117 P.3d 91, 95 (Colo. App. 2004) ("[A]ny error was harmless in light of similar evidence, presented through other witnesses...."). Such an error would not "so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction." Id. So, we conclude that the trial court did not commit plain error.

V. Interview Video and Instruction

¶ 45 Sparks next asserts that the court abused its discretion by instructing the jury that it could assign his interview video any weight it wanted when the court provided the video to the jury during deliberations. Sparks argues that the court should instead have instructed the jury not to give the exhibit undue weight. We disagree.

A. Standard of Review

¶ 46 We review the court's instruction to the jury for an abuse of discretion. People v. Jefferson , 2017 CO 35, ¶ 25, 393 P.3d 493. The trial court has discretion over the use of exhibits during jury deliberations, and we may not substitute our own judgment for the court's because we would have reached a different conclusion. Rael v. People , 2017 CO 67, ¶ 15, 395 P.3d 772. We will not disturb the court's refusal to exclude or limit the use of an exhibit unless its decision was manifestly arbitrary, unreasonable, or unfair. Id.

B. Applicable Law

¶ 47 A trial court has an "obligation, at least where prompted to do so by a party, to exercise its discretion to guard ... against the risk that testimonial exhibits will be given undue weight or emphasis." Carter v. People , 2017 CO 59M, ¶ 17, 398 P.3d 124 (citing Frasco v. People , 165 P.3d 701, 704 (Colo. 2007) ). And "the trial court must ultimately retain discretionary control over all jury exhibits allowed to go to the jury." Frasco , 165 P.3d at 705.

¶ 48 Under DeBella v. People , trial courts are required to assess any possible undue prejudice before allowing juries access to videos of testimonial out-of-court statements of child victims during deliberation. 233 P.3d 664, 668 (Colo. 2010).

¶ 49 But the use of a defendant's out-of-court statement is analyzed under a different framework than that prescribed by DeBella . See Rael , ¶ 35 ("Applying the foregoing principles here, we conclude that the concerns that motivated our decision in DeBella ... do not apply to a defendant's own out-of-court statements.").

¶ 50 A defendant's out-of-court statement "offered against [him] ha[s] ... never been considered primarily testimonial in nature"; its value is "primarily as demonstrative evidence of conduct on his part that is contradictory of a position he takes at trial." Carter , ¶¶ 18, 21. Use of this evidence "does not implicate the same danger of undue emphasis inherent in permitting the jury access to ... testimonial evidence" because it has additional probative value "for reasons more related to the adversary process than any narrative or testimonial value." Id. at ¶ 21.

¶ 51 "[H]owever, trial courts nonetheless retain discretionary control over jury access to such exhibits." Rael , ¶ 35 (first citing Carter , ¶ 22 ; then citing Frasco , 165 P.3d at 704 ). While a court may find grounds to restrict the jury's access to a defendant's interview under certain circumstances, "they would not typically be the same reasons that might lead it to caution the jury concerning the use of, or limit its access to, testimonial exhibits." Carter , ¶ 22.

C. Analysis

¶ 52 The trial court instructed the jury on how to view Sparks's interview video during deliberations:

You have requested certain video or audio evidence. You may listen to the video/audio recording no more than three times. Each time you listen to it, you must listen to it all the way through. You may not rewind or fast forward the recording. You should consider all of the evidence in the case and determine what weight, if any, should be given to any particular piece of evidence.

¶ 53 Sparks argues that this "effectively instructed the jury [that] it could give the [video] all of the weight it wanted," which is contrary to DeBella 's precaution against undue weight. We reject this argument for three reasons.

¶ 54 First, the court did not instruct the jury to give Sparks's statements all of the weight it wanted. Second, our supreme court has made clear as to a defendant's out-of-court statements that "no special protections against undue emphasis are required and the jury is entitled to unrestricted access...." Rael , ¶ 32. The court was not obliged under DeBella to specifically admonish the jury not to give the evidence undue weight. And third, the court appropriately exercised its discretion by providing specific instructions for the jury to follow in viewing the evidence.

¶ 55 But, Sparks further argues that the precise reason the court should have instructed the jury not to give the video unfair weight was that, unlike the DVD of Sparks's out-of-court statements, a transcript of other testimony that had been subjected to cross-examination was not available to the jury during its deliberations. We also reject this argument.

¶ 56 The court specifically instructed the jury to view the video in its entirety, to not rewind or fast forward through it, and to view it no more than three times. And again, specific instructions to control for undue weight are not required for a defendant's out-of-court statements. Id.

¶ 57 The trial court did not abuse its discretion in giving the instruction to the jury.

VI. Effective Assistance of Counsel

¶ 58 Sparks contends that the trial court denied him his constitutional right to effective assistance of counsel by providing his interview video to the jury during deliberations without notifying his counsel. We agree but conclude the error was harmless beyond a reasonable doubt.

A. Standard of Review

¶ 59 The parties agree that we review the possible violation of Sparks's constitutional right to effective assistance of counsel de novo. Sparks contends that this issue was preserved and we should apply a harmless beyond a reasonable doubt review. The People disagree that this issue was preserved and argue we should review for plain error.

¶ 60 We need not address this issue because we conclude that even under a harmless beyond a reasonable doubt standard, the error is harmless. See People v. Mollaun , 194 P.3d 411, 415 (Colo. App. 2008).

B. Analysis

¶ 61 "The right to counsel exists at every critical stage of a criminal proceeding." Key v. People , 865 P.2d 822, 825 (Colo. 1994) ; see U.S. Const. amend. VI ; Colo. Const. art. II, § 16. A court's discussion with the jurors is a critical stage in a criminal proceeding. People v. Guzman-Rincon , 2015 COA 166M, ¶ 20, 369 P.3d 752. "It is therefore constitutional error for a trial judge to respond to an inquiry from a jury without first making reasonable efforts to obtain the presence of the defendant's counsel." Key , 865 P.2d at 825 (quoting Leonardo v. People , 728 P.2d 1252, 1257 (Colo. 1986) ).

¶ 62 The trial court erred in submitting Sparks's interview video to the jury without notifying his counsel. But if a court properly responds to a jury's question during deliberations, its failure to have previously secured defense counsel's presence is harmless beyond a reasonable doubt. People v. Isom , 140 P.3d 100, 104-05 (Colo. App. 2005) (citing People v. Dunlap , 124 P.3d 780 (Colo. App. 2004) ). We have concluded above that the court properly responded to the jury's question and did not abuse its discretion in providing Sparks's interview video to the jury with an appropriate instruction.

¶ 63 We also note that there is no indication that counsel's presence would have made any difference. When the court first notified the parties' counsel that it anticipated that the jury would request Sparks's interview video and that it would give a DeBella instruction to the jury, defense counsel did not object. And after the jury returned its verdict, defense counsel inquired whether the court had provided the video to the jury. When the court responded that it had and had read the instruction it gave, counsel did not object: "Just so I wanted to be clear for the record ... counsel wasn't informed of the request to view the video." See Isom , 140 P.3d at 105 ("[T]here is no indication that the presence of counsel would have altered the court's decision.").

¶ 64 We therefore conclude that the court's error in not obtaining defense counsel's presence was harmless beyond a reasonable doubt.

VII. Conclusion

¶ 65 We affirm the trial court's judgment of conviction.

JUDGE DAILEY and JUDGE WELLING concur.

      Sparks notes that he was "manipulated with false information" in his interview, but he does not argue that his interview statements were coerced and involuntary, so we do not consider that issue.


source: Caselaw Access Project

author: Opinion by JUDGE VOGT

license: Public Domain

text:
    WAL-MART STORES, INC., a Delaware corporation; and Sam's West, Inc., an Arkansas corporation, Plaintiffs-Appellants, v. PIKES PEAK RURAL TRANSPORTATION AUTHORITY and Colorado Department of Revenue, Defendants-Appellees.
    Court of Appeals No. 17CA0462
    Colorado Court of Appeals, Division VII.
    Announced May 17, 2018
    Greenberg Traurig LLP, Brian L. Duffy, Naomi G. Beer, Tyler D. Coombe, John K. Crisham, Denver, Colorado; Brownstein Hyatt Farber Shreck LLP, Martha L. Fitzgerald, Denver, Colorado, for Plaintiffs-Appellants
    Carver Schwartz McNab Kamper & Forbes, LLC, Peter C. Forbes, Denver, Colorado; Icenogle Seaver Pogue, PC, Jennifer L. Ivey, Denver, Colorado, for Defendant-Appellee Pikes Peak Rural Transportation Authority
    Cynthia H. Coffman, Attorney General, Scott R. Bauer, Senior Assistant Attorney General, Benjamin Kapnik, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee Colorado Department of Revenue
    Wynetta P. Massey, City Attorney, Anne H. Turner, Senior Assistant City Attorney, Colorado Springs, Colorado, for Amicus Curiae City of Colorado Springs
    Troy Johnson, City Attorney, Fountain, Colorado, for Amicus Curiae City of Fountain
   Opinion by JUDGE VOGT

¶ 1 In 2014, the City of Fountain annexed a parcel of vacant land (the Property) from unincorporated El Paso County. After the Pikes Peak Rural Transportation Authority announced its intention to collect a 1% sales tax from recently built retail businesses on the Property, the operators of the businesses, WalMart Stores, Inc., and Sam's West, Inc., filed a declaratory judgment action against the Authority and the Colorado Department of Revenue (DOR). They sought a declaration that defendants could not collect sales and use taxes on the Property because the Property was now a part of Fountain, which was not a member of the Authority.

¶ 2 Resolution of the issue presented required answers to two questions: first, can a municipality remove property from the boundaries of a regional transportation authority simply by annexing the property; and second, is such authority's statutory power to tax preempted by article XX, section 6 of the Colorado Constitution, which gives home-rule cities the power to collect sales taxes within their own borders?

¶ 3 The district court answered both questions "no," as do we. We therefore affirm the judgment in favor of defendants.

I. Background

¶ 4 Colorado's Regional Transportation Authority Law (RTA Law), sections 43-4-601 to - 621, C.R.S. 2017, allows municipalities, counties, special districts, and the state to combine to provide regional transportation services and to collect sales and use taxes to pay for such services. §§ 43-4-602(4), - 605(1)(j)(I), C.R.S. 2017. The Authority was established in accordance with the RTA Law in 2004, pursuant to an intergovernmental agreement (IGA) among El Paso County and various municipalities in the county. The Property at issue here was in unincorporated El Paso County in 2004 and thus was within the boundaries of the Authority.

¶ 5 The Authority collects a 1% sales tax on retail sales within its boundaries and uses the tax revenues for transportation projects. Among other projects, it has spent $25,000,000 on improvements to Highway 83, which runs adjacent to the Property.

¶ 6 Fountain, a home-rule city in El Paso County, has never been a member of the Authority. After Fountain annexed the Property in 2014, defendants opened stores on the previously undeveloped Property. As Fountain businesses, the stores were required to collect and remit to the city a 3% Fountain sales and use tax and a .75% Fountain transportation tax.

¶ 7 The DOR collects sales tax on behalf of both Fountain and the Authority.

¶ 8 Plaintiffs filed a complaint seeking a declaratory judgment that the Authority and the DOR could not collect a tax from the stores because (1) upon annexation by Fountain, the Property was removed from the Authority's territory and thus was not subject to taxation by the Authority; and, (2) as a home-rule city with plenary taxation powers, Fountain had the sole authority to levy sales taxes on the annexed Property. Defendants counterclaimed, asserting that Fountain's annexation did not remove the Property from the Authority's territory, and that the city's plenary tax power did not preclude additional taxation. Agreeing that there were no disputed issues of material fact, the parties filed cross-motions for summary judgment. In a detailed written order, the district court denied plaintiffs' motion and entered summary judgment for defendants.

II. Analysis

A. Standard of Review and Controlling Legal Principles

¶ 9 This is an appeal of a summary judgment, and it involves questions of statutory interpretation. Our review is thus de novo. Gibbons v. Ludlow , 2013 CO 49, ¶ 11, 304 P.3d 239 (summary judgment); Goodman v. Heritage Builders, Inc. , 2017 CO 13, ¶ 5, 390 P.3d 398 (statutory interpretation).

¶ 10 Summary judgment is appropriate when the pleadings and supporting documentation show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56 ; Andersen v. Lindenbaum , 160 P.3d 237, 239 (Colo. 2007).

¶ 11 In interpreting a statute, we must ascertain and give effect to the legislature's intent. Colo. Dep't of Revenue v. Creager Mercantile Co. , 2017 CO 41M, ¶ 16, 395 P.3d 741. We give words and phrases their plain and ordinary meanings, and we construe the entire statutory scheme to give consistent, harmonious, and sensible effect to all its parts. Denver Post Corp. v. Ritter , 255 P.3d 1083, 1089 (Colo. 2011). If a statute's language is clear, we apply it as written; but if the statutory language is ambiguous, we may use other tools of statutory interpretation to determine legislative intent. Id.

B. Annexation and the RTA Law

¶ 12 Plaintiffs contend that Fountain's annexation of the Property removed the Property from the Authority's boundaries, and that the Authority's attempt to tax retail sales outside its boundaries violates the RTA Law. We disagree.

1. Effect of Fountain's Annexation

¶ 13 We first consider whether Fountain's annexation, without more, removed the Property from the Authority's boundaries.

¶ 14 A municipality, such as Fountain, may annex property from unincorporated parts of the county in which it lies in accordance with Colorado Constitution article II, section 30 and the Municipal Annexation Act of 1965, sections 31-12-101 to - 123, C.R.S. 2017. See Town of Superior v. Midcities Co. , 933 P.2d 596, 600 (Colo. 1997). Thus, Fountain's annexation of the Property in 2014 served to detach it from unincorporated El Paso County and make it a part of Fountain.

¶ 15 However, a municipality's annexation power does not permit it automatically to remove territory from other political subdivisions of the state (such as regional transportation authorities; see § 43-4-602(1.5), C.R.S. 2017 ), particularly where removal of territory from such political subdivisions is governed by other statutory provisions. "[A] municipality cannot accomplish by mere annexation what is illegal or statutorily impermissible." Bd. of Trustees of Town of Wellington v. Bd. of Trustees of Fort Collins Reg'l Library Dist. , 216 P.3d 611, 613 (Colo. App. 2009) (city's annexation of property did not automatically remove the property from library district; rather, property could be removed only in accordance with specific provisions of library law); see also Valley Water Dist. v. City of Littleton , 32 Colo. App. 286, 288, 512 P.2d 644, 645 (1973) (city's annexation of portion of territory served by water district did not make city responsible for providing water service in the annexed area).

¶ 16 We thus conclude that although Fountain's annexation of the Property removed it from unincorporated El Paso County, that annexation did not remove the Property from the boundaries of the Authority.

2. The RTA Law

¶ 17 We next consider whether the Property must nevertheless be deemed to be outside the Authority's boundaries, and thus not subject to the Authority's taxes, under the RTA Law.

¶ 18 The RTA Law gives an authority the power to impose a sales tax, use tax, or both, within its boundaries, provided that a majority of voters within the area to be taxed approve the proposed tax. §§ 43-4-605(1)(j)(I), - 612(1), C.R.S. 2017. The Authority's 1% sales tax at issue here was approved by the voters in 2004. As part of unincorporated El Paso County, the Property was within the Authority's boundaries at that time and thus subject to the tax, although there was then no commercial activity on the Property to be taxed.

¶ 19 Plaintiffs contend that, under section 43-4-603(2)(d) of the RTA Law, the Property is no longer within the boundaries of the Authority since its annexation by Fountain. The subsection on which plaintiffs rely, part of a section of the RTA Law captioned "Creation of authorities," states in relevant part that

(2) Any contract establishing an authority shall specify:
....
(d) The boundaries of the authority, which may not include territory outside of the boundaries of the members of the combination , may not include territory within the boundaries of a municipality that is not a member of the combination as the boundaries of the municipality exist on the date the authority is created without the consent of the governing body of such municipality, and may not include territory within the unincorporated boundaries of a county that is not a member of the combination as the unincorporated boundaries of the county exist on the date the authority is created without the consent of the governing body of such county.

(Emphasis added.)

¶ 20 Plaintiffs read the emphasized portion above as ending the analysis because the Property is located in Fountain, and Fountain is not a combination member. Defendants respond that the subsection defines the territorial restrictions applicable when a transportation authority is created , and that the subsection, read as a whole, requires a contract creating such an authority to specify boundaries that (1) may not include land outside of the combination members' borders; and, (2) if land within a member's (e.g., El Paso County's) borders is also inside a nonmember municipality (e.g., Fountain), may not include such land without the municipality's consent. In the latter situation, the relevant municipal boundaries are those that "exist on the date the authority is created."

¶ 21 We agree with defendants. Reading subsection 603(2)(d) as a whole and in its context, we conclude that the legislature intended the subsection to define the boundaries of an authority at its creation, not to define requirements for changing those boundaries thereafter. We reach this conclusion for several reasons.

¶ 22 First, as noted, section 42-4-603 is captioned "Creation of authorities." See Jefferson Cty. Bd. of Equalization v. Gerganoff , 241 P.3d 932, 936 (Colo. 2010) (headings in a statute can aid in determining legislative intent). Its subsections deal with the requirements for contracts creating transportation authorities, not with requirements for authorities already in existence.

¶ 23 Second, the language in subsection 603(2)(d) referring to the boundaries of a municipality "as [they] exist on the date the authority is created" is clear and unambiguous, and it is the same language used in other sections of the RTA Law. See § 42-4-605(1)(f) (limitations on territory in which regional transportation systems may be operated); § 42-4-605(1)(j)(I) (limitations on territory within which sales or use tax may be levied). The legislature's use of such specific language suggests that it was aware that municipal boundaries frequently change, and that there needed to be some certainty as to the territory in which a regional transportation authority could operate.

¶ 24 Third and most important, the General Assembly included in the RTA Law a specific provision addressing how territory may be removed from an authority once the authority is established. Section 43-4-605(2) spells out how the authority's board of directors may include or exclude property from the boundaries of the authority. The statute requires notice and a public hearing, after which the board may, by two-thirds vote, adopt a resolution including or excluding all or any portion of the property described in the notice. § 43-4-605(2)(b)(I), (II). It is undisputed that the procedure spelled out in section 43-4-605(2) was not followed in this case.

¶ 25 In sum: The Property was within the boundaries of the Authority when the Authority was created. Fountain's annexation of the Property did not remove it from the boundaries of the Authority. Rather, like the library law in Town of Wellington , the RTA Law provides a single method to remove property from an authority's boundaries after the authority is formed; but that method was not followed. 216 P.3d at 615. Contrary to the arguments first advanced by plaintiffs in their reply brief and at oral argument, nothing in the IGA creating the Authority warrants a contrary conclusion. Thus, the Property remains within the Authority's boundaries and is subject to taxation by the Authority.

C. Preemption under Article XX of the Colorado Constitution

¶ 26 Plaintiffs further contend that the Authority's statutory power to tax is preempted by article XX, section 6 of the Colorado Constitution, which they say gives home-rule cities "plenary" and "sole" authority over local concerns such as municipal taxation and supersedes state statutes that conflict with local laws in those areas. We again disagree.

1. Additional Background

¶ 27 Colorado Constitution article XX, section 6 states that home-rule cities have power over "local and municipal matters," and that their charters and ordinances in such matters "shall supersede within the territorial limits [of such cities] any law of the state in conflict therewith." Article XX, section 6(g) states that a home-rule city's powers include the power to levy and collect taxes on city property for municipal purposes. The Fountain city charter authorizes the city council "to levy general sales taxes, selective sales taxes, and use taxes, or any combination of said taxes, or any other taxes permitted by law." City of Fountain Charter art. IX, § 9.3(d). As stipulated by the parties here, the city council has imposed a 3% sales and use tax and a .75% transportation tax on businesses operating within Fountain's borders

¶ 28 Under section 43-4-605(1)(j)(I) of the RTA Law, a regional transportation authority is allowed "to levy, in all or any designated portion of the members of the combination, a sales or use tax, or both, at a rate not to exceed one percent upon every transaction or other incident with respect to which a sales or use tax is levied by the state. ... The tax imposed pursuant to this paragraph (j) is in addition to any other sales or use tax imposed pursuant to law." The Authority cites this provision as the basis for its right to impose a 1% sales tax on transactions within its boundaries, including transactions on the Property.

¶ 29 To ensure home-rule cities their constitutionally guaranteed independence from state control in their internal affairs, our supreme court has consistently held that, in matters of local concern, a home-rule ordinance supersedes a conflicting state statute; but when a home-rule ordinance conflicts with state law in a matter of either statewide or mixed state and local concern, the state law supersedes that conflicting ordinance. City of Longmont v. Colo. Oil & Gas Ass'n , 2016 CO 29, ¶¶ 17-18, 369 P.3d 573. In matters of statewide or mixed concern, local ordinances may coexist with state statutes as long as the local ordinance and the state statute do not conflict. Id. at ¶ 18.

2. Application

¶ 30 To prevail on this contention, plaintiffs would need to establish that imposition of a sales tax on the Property to pay for transportation projects is a matter of purely local concern, and that the state statute granting the Authority the right to impose such a tax "in addition to any other sales or use tax imposed pursuant to law" conflicts with Fountain's power to impose such a tax. They have done neither.

¶ 31 First, Colorado case law has long recognized that transportation regulation generally, including the establishment of transportation systems, is a matter of mixed local and state concern. See Webb v. City of Black Hawk , 2013 CO 9, ¶¶ 30-31, 42, 295 P.3d 480 (both home-rule cities and the state have an interest in traffic regulation, which is a matter of mixed state and local concern; thus, state statute preempted city's conflicting bicycle ordinance); City of Commerce City v. State , 40 P.3d 1273, 1284 (Colo. 2002) (in rejecting home-rule city's argument that traffic enforcement in city was a matter of purely local concern and that state law regulating automated vehicle registration systems unconstitutionally infringed on city's power, supreme court held that the state law addressed a matter of mixed state and local concern, and noted that "although our constitution assigns a power to home-rule municipalities in a general way, this does not necessarily mean that the matter is a strictly local issue"); Anema v. Transit Constr. Auth. , 788 P.2d 1261, 1266 (Colo. 1990) (state law creating an authority to establish a rapid transit system in Denver addressed a matter of mixed statewide and local concern); see also People v. Graham , 107 Colo. 202, 205, 110 P.2d 256, 257 (1941) (rejecting argument that state could not regulate motor vehicle traffic in home-rule city, and observing: "As motor vehicle traffic in the state and between home-rule municipalities becomes more and more integrated it gradually ceases to be a 'local' matter and becomes subject to general law.").

¶ 32 Second, Colorado Constitution article XX, section 6 does not give home-rule cities "sole" authority over taxation within their boundaries, as plaintiffs contend. Rather, as recognized by our supreme court, state and local taxation schemes, including sales taxes to fund transportation projects, can coexist in a home-rule city without giving rise to a conflict. See Berman v. City & Cty. of Denver , 156 Colo. 538, 544, 400 P.2d 434, 438 (1965) ("[C]ases decided by this court conclusively establish that ... state taxation in the same field as that of a municipality can co-exist."); see also City of Aurora v. Aurora Sanitation Dist. , 112 Colo. 406, 409, 149 P.2d 662, 663 (1944) (in rejecting home-rule city's challenge to creation of sanitation district within city's boundaries, court discussed its previous case law holding that legislature had "right to authorize the formation of quasi-municipal districts, with the power to tax for their special purposes, which might embrace or include cities and towns within their boundaries"); Milheim v. Moffat Tunnel Improvement Dist. , 72 Colo. 268, 280, 211 P. 649, 654 (1922) (Colorado Constitution article XX did not limit power of legislature to create an improvement district including the City and County of Denver and to grant that district the power to levy assessments in Denver ).

¶ 33 Here, the record shows that at least one transportation project funded by the Authority's sales tax (the $25,000,000 in improvements to Highway 83) directly benefits the Property. Further, the IGA creating the Authority provides that voter-approved sales tax revenues must be spent on roadway capital improvements, maintenance and operations, and transit service within the Authority's boundaries, and that "[s]uch projects shall be compatible with established state and local transportation plans" for the transport of people and goods in or through El Paso County.

¶ 34 Plaintiffs do not explain how the Authority's use of sales tax revenues for these purposes conflicts with Fountain's right to levy and collect taxes. Although plaintiffs complain that permitting the Authority to impose its sales tax on businesses in the Property will force Fountain taxpayers to "divert dollars that would otherwise go to a wide variety of areas (including transportation)" in Fountain, they do not dispute that Fountain still collects its own sales-and-use and transportation taxes on all eligible transactions occurring in that city.

¶ 35 In these circumstances, we conclude, as did the district court, that provision of transportation services to the Property, and imposition of taxes to pay for such services, is not a purely local concern that, under article XX, section 6, would supersede any conflicting state law. Nor have plaintiffs established that there is a conflict between Fountain's right to impose its own taxes and the Authority's imposition of sales tax on the Property in accordance with section 43-4-605(1)(j)(I). Thus, the district court did not err in rejecting plaintiffs' preemption argument and concluding that the Authority's sales tax on eligible transactions on the Property was valid.

¶ 36 Finally, we reject plaintiffs' argument that the district court erred by failing to address all of the factors frequently considered by the courts in determining whether an issue is a matter of local, mixed, or state interest. See Ryals v. City of Englewood , 2016 CO 8, ¶ 13, 364 P.3d 900 (relevant factors include the need for statewide uniformity, the extraterritorial impact of the regulation at issue, whether the matter has traditionally been regulated at the state or local level, and whether the Colorado Constitution commits the matter to state or local regulation).

¶ 37 First, the district court's analysis, with which we agree, recognizes that imposition of sales taxes to fund transportation projects is neither a matter traditionally regulated only at the local level nor a matter committed exclusively to either state or local regulation by the Colorado Constitution. Plaintiffs have not demonstrated that application of the remaining two Ryals factors would have warranted a different conclusion. Second, the district court found, and we agree, that there was no conflict between Fountain's right of municipal taxation and the Authority's imposition of sales taxes. A division of this court has recognized that, in such circumstances, it is unnecessary to decide whether the matters at issue are of local, mixed, or state concern. See McCarville v. City of Colorado Springs , 2013 COA 169, ¶ 12, 338 P.3d 1033 (where there is no conflict, state and local legislation may coexist, and court need not decide whether provisions at issue were matters of state, local, or mixed concern).

III. Conclusion

¶ 38 The judgment is affirmed.

JUDGE BERGER and JUDGE PLANK concur.

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2017.

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2017.


author: Opinion by JUDGE TAUBMAN

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ryan Austin WAGNER, Defendant-Appellant.
    Court of Appeals No. 16CA0835
    Colorado Court of Appeals, Division I.
    Announced May 17, 2018
    Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by JUDGE TAUBMAN

¶ 1 Defendant, Ryan Austin Wagner, appeals his judgment of conviction entered on a jury verdict finding him guilty of three counts of stalking. We remand for the trial court to merge his stalking convictions and correct the mittimus accordingly, but affirm in all other respects.

I. Background

¶ 2 In May 2014, Wagner and the victim, his wife, separated. The victim moved in with another man she had been dating. For the next several months, Wagner repeatedly texted, called, and followed the victim and her boyfriend.

¶ 3 Wagner and the victim were divorced in September 2014. Shortly after the divorce was finalized, the victim disclosed Wagner's behavior to her supervisor after he made several calls to her workplace. After the victim reported his behavior, Wagner was arrested and charged with three counts of stalking-one count under each of subsections (a), (b), and (c) of section 18-3-602(1), C.R.S. 2017. A jury returned a guilty verdict on all counts.

¶ 4 Wagner was sentenced to ninety days in jail on each count with all jail terms to run consecutively, and six years of probation on each count with all probation terms to run concurrently.

¶ 5 On appeal, Wagner argues that the trial court erred by (1) entering convictions unsupported by sufficient evidence and (2) rejecting a defense-tendered unanimity instruction or, in the alternative, failing to require the prosecution to elect which acts constituted credible threats. In their answer brief, the People conceded that two of Wagner's convictions-those charged under the credible threat subsections (a) and (b)-should have merged at sentencing.

¶ 6 After considering the People's concession, we requested supplemental briefing from Wagner and the People addressing whether all three of the stalking convictions should have merged at sentencing. Wagner asserted that, assuming his convictions were not vacated altogether, merger was appropriate. The People argued that the credible threat convictions should not merge with the serious emotional distress conviction under section 18-3-602(1)(c).

¶ 7 We conclude that Wagner's stalking convictions should have merged and therefore remand so that the trial court can vacate two of the counts. However, we reject Wagner's other contentions of error and therefore affirm in all other respects.

II. Multiplicity

¶ 8 Although Wagner did not raise the issue before the trial court or on appeal, the People conceded in their answer brief that two of his stalking convictions should have merged at sentencing and we agree. We further conclude that Wagner's three stalking convictions should have merged and therefore remand for the trial court to vacate two of the convictions.

A. Standard of Review

¶ 9 We review de novo whether merger applies to criminal offenses. People v. Zweygardt , 2012 COA 119, ¶ 40, 298 P.3d 1018. An unpreserved double jeopardy claim is reviewable for plain error. Reyna-Abarca v. People , 2017 CO 15, ¶¶ 45-46, 390 P.3d 816, 823. Plain errors are errors that are "obvious and substantial," Hagos v. People , 2012 CO 63, ¶ 14, 288 P.3d 116, 120, and "cast serious doubt on the reliability of the judgment of conviction," id. (quoting People v. Miller , 113 P.3d 743, 750 (Colo. 2005) ).

B. Applicable Law

1. Stalking Statute

¶ 10 A person commits stalking if he or she knowingly

(a) Makes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person ... ; or
(b) Makes a credible threat to another person and, in connection with the threat, repeatedly makes any form of communication with that person ... ; or
(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress.

§ 18-3-602(1)(a)-(c).

2. Merger

¶ 11 Unless a statute expressly authorizes multiple punishments for the same criminal offense, the Double Jeopardy Clauses of the United States and Colorado Constitutions prohibit "the imposition of multiple punishments for the same criminal conduct." Woellhaf v. People , 105 P.3d 209, 214 (Colo. 2005) ; see U.S. Const. amends. V, XIV ; Colo. Const. art. II, § 18. Multiplicitous charging creates a risk that a defendant "would be punished more than once for the same offense." Quintano v. People , 105 P.3d 585, 589 (Colo. 2005).

¶ 12 When a statute provides alternative ways of committing a single criminal offense, multiplicity concerns may materialize. Woellhaf , 105 P.3d at 214. "Such an issue may arise if imprecise statutory language leads a prosecutor to charge multiple counts of the same offense because a defendant has committed the crime using more than one of the prohibited alternative methods." Id. at 215. In these cases, courts must determine "the legislatively prescribed unit of prosecution." Id. at 211.

¶ 13 "After determining the unit of prosecution designated by the General Assembly, double jeopardy analysis requires us to consider whether the defendant's conduct constitutes factually distinct offenses, that is, whether the conduct satisfies more than one defined unit of prosecution." Id. at 218-19. In determining whether offenses are factually distinct, we consider factors including the time and location of the events, the defendant's intent, and whether the People presented the acts as legally separable. See Quintano , 105 P.3d at 591-92. However, no one factor is dispositive and the inquiry ultimately focuses on "all the evidence introduced at trial to determine whether the evidence on which the jury relied for conviction was sufficient to support distinct and separate offenses." Id. at 592.

¶ 14 In the event that a defendant is convicted of multiplicitous counts, the proper remedy is to merge the multiplicitous convictions. See People v. Rhea , 2014 COA 60, ¶¶ 16-17, 349 P.3d 280, 287-88 ("Merger has the same effect as vacating one of the multiplicitous sentences.").

C. Analysis

¶ 15 Wagner was charged with two counts of stalking under the "credible threat" subsections of the stalking statute, section 18-3-602(1)(a) and (b), and one count of stalking under the "serious emotional distress" subsection of the stalking statute, section 18-3-602(1)(c). The complaint and information lists the same period for all three alleged offenses, May 15, 2014, through October 2, 2014. The People conceded in their answer brief that the credible threat convictions should have merged at sentencing because "the prosecution did not separate the charges based on shorter time frames or specific incidents." Although we are not bound by the People's concession, see People v. Knott , 83 P.3d 1147, 1148 (Colo. App. 2003), we agree.

¶ 16 As noted, in their supplemental brief the People contend that the credible threat convictions should not merge with the serious emotional distress conviction. In support of that position, the People rely on People v. Carey , 198 P.3d 1223 (Colo. App. 2008), and People v. Herron , 251 P.3d 1190 (Colo. App. 2010). We consider the People's reliance on those cases misplaced.

¶ 17 In contrast to the People's contention, the division in Carey did not uphold multiple convictions under the credible threat and serious emotional distress subsections of the stalking statute; instead, as a careful reading of the division's opinion reveals, the defendant there was convicted of a single count of stalking, though he was apparently charged under both subsections of the statute. See 198 P.3d at 1227. Thus, the People's reliance on Carey is unavailing.

¶ 18 In Herron , the division concluded that two stalking convictions, one under the credible threat subsection and one under the serious emotional distress subsection, should merge. 251 P.3d at 1192. The division determined, based on the plain language of section 18-3-602(1), that "the legislatively defined unit of prosecution for the crime of stalking is a continuous course of conduct by which one repeatedly follows, approaches, contacts, or places another under surveillance." Id. at 1193. Further, the division concluded that the stalking statute "does not contain any specific authorization for multiple punishments for each act of stalking," but instead "defines alternative means of committing a single offense." Id. ; see also People v. Abiodun , 111 P.3d 462, 466 (Colo. 2005) (when the legislature joins "a number of acts ... as a disjunctive series," rather than describing them in different provisions under different titles, it defines alternative means of committing a single offense); People v. Friend , 2014 COA 123M, ¶ 53, 431 P.3d 614, 626-27 (cert. granted in part Feb. 8, 2016). Thus, the Herron division merged the defendant's two stalking convictions under former section 18-9-111(4)(b)(I) (now codified at section 18-3-602(1)(a) ) and former section 18-9-111(4)(b)(III) (now codified at section 18-3-602(1)(c) ). 251 P.3d at 1192.

¶ 19 Still, in their supplemental brief, the People maintain that there is no multiplicity problem presented by Wagner's credible threat and serious emotional distress stalking convictions because, "unlike in Herron , Wagner committed enough factually distinct incidents to permit convictions on each theory." We disagree.

¶ 20 The People rely on the analysis in Herron that three instances of following the victim could not support the defendant's two stalking convictions because each stalking conviction must be based on repeated conduct. See id. at 1194. The People contend that Wagner's conduct, unlike the defendant's in Herron , could be separated into two distinct stalking convictions because he contacted the victim more than four times. However, because the stalking statute proscribes an entire course of conduct, "a second or successive offense is not necessarily committed by acts that are factually distinct from each other but only by acts that are factually distinct from the entire course of conduct punished by the first conviction." Abiodun , 111 P.3d at 470. Contrary to the People's argument, we determine that Wagner's conduct did not support factually separate stalking transactions.

¶ 21 While Wagner's course of conduct lasted for several months, the extended timeframe alone does not render his numerous contacts with the victim factually distinct. See Herron , 251 P.3d at 1194 (finding stalking transactions were not factually distinct despite passage of three months between them). Further, Wagner's contacts with the victim were related to a common theme-namely, his desire to reconcile and resume their relationship. Most significantly, the prosecution did not treat Wagner's acts as legally separable at trial. Instead, the prosecution based all three charges on the same evidence and designated the same approximately five-month period for each charge. During closing argument, the prosecutor urged the jury to "think about all of the threats and the conduct in connection with those threats in this case" and to consider Wagner's actions "taken in conjunction with everything." Accordingly, we conclude that the evidence supports only one conviction for stalking, and, therefore, two of his stalking convictions must be vacated.

¶ 22 We determine only that, in the circumstances here, the People did not prove factually distinct instances of conduct sufficient to support multiple stalking convictions. Nevertheless, we do not conclude or even suggest that a defendant can never be convicted of multiple stalking convictions. Cf. Woellhaf , 105 P.3d at 218 ("[W]e do not suggest that the statute defines sexual assault on a child such that the prosecution may never charge separate offenses arising from a single course of conduct or criminal episode."). "The prosecution may pursue multiple convictions if the underlying evidence supports factually distinct offenses." Id.

¶ 23 In sum, we conclude that Wagner was charged with, and convicted of, multiplicitous counts. Further, we conclude that the error was plain. Herron was decided when Wagner was sentenced, as were Woellhaf and Quintano . See Friend , ¶ 74, 431 P.3d at 629-30. The protections against double jeopardy affect a substantial constitutional right. Id. at ¶ 75, 431 P.3d at 630-31. It was plainly erroneous for the trial court to enter three stalking convictions.

¶ 24 Thus, we remand for the trial court to vacate two of the stalking counts and to correct the mittimus accordingly.

III. Sufficiency of the Evidence

¶ 25 Wagner contends that insufficient evidence supported all three of his convictions. We disagree. Because we have concluded that all of Wagner's convictions should have merged, we need only address the sufficiency of the evidence supporting his conviction under any one of the subsections of section 18-3-602(1). However, we will address his argument as to all three convictions.

A. Additional Facts

¶ 26 The victim testified that Wagner began texting, calling, and following her after the two separated, but that the contact increased over the next few months until their divorce was finalized. She testified that Wagner repeatedly parked outside her home, once confronted her in the parking lot at her workplace, and followed her and her boyfriend to a park. Additionally, Wagner told the victim on a few occasions that if he could not have her then no one could and implied "that [she] had to come back to him or else." During one phone conversation, the victim believed she heard Wagner "pull[ ] the slide back on a gun ... and [she] was really concerned that he was either going to shoot himself or come over and kill [her or her boyfriend]." Wagner also told the victim that he knew where she lived, as well as where her and her boyfriend's families resided.

¶ 27 As a result of Wagner's behavior, the victim testified that she did not feel safe or secure, was "always worried" that Wagner "was either going to hurt himself, [her], or [her boyfriend]," started to carry a concealed firearm, altered her route to work and her schedule, and lost sleep because she was "pretty emotional." In addition, the victim's boyfriend testified that he purchased a security system for his home and also started to carry a concealed gun.

¶ 28 The defense moved for a judgment of acquittal on all charges. In a thorough bench ruling, the trial court denied that motion.

B. Standard of Review

¶ 29 In considering a challenge to the sufficiency of the evidence, we review the record de novo. Dempsey v. People , 117 P.3d 800, 807 (Colo. 2005). "When determining a challenge to the sufficiency of the evidence, an appellate court must consider whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the charged crime beyond a reasonable doubt." Carey , 198 P.3d at 1232.

C. Analysis

¶ 30 Wagner contends that there was insufficient evidence to support his stalking convictions. His argument is twofold. First, he contends that the evidence did not prove beyond a reasonable doubt that his conduct would have caused a reasonable person to suffer serious emotional distress or that the victim actually suffered serious emotional distress. Second, he asserts that his actions did not constitute "credible threats" because they would not have caused "a reasonable person to be in fear for the person's safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship." § 18-3-602(2)(b), C.R.S. 2017. We disagree with both contentions.

¶ 31 Taken in the light most favorable to the People, we conclude the evidence was sufficient to show both that Wagner's conduct would have caused a reasonable person serious emotional distress and that it caused the victim serious emotional distress. The victim testified that, as a result of Wagner's surveillance and frequent communications, she felt unsafe, lost sleep, changed her daily routine to evade Wagner, and started to carry a concealed weapon. This evidence was sufficient to allow the jury to find the objective and subjective serious emotional distress elements had been established. See Carey , 198 P.3d at 1233 (victim's testimony "that she was 'very fearful' and 'very distressed' because she realized that defendant could easily act on his threats" and that she "increased her level of awareness of her surroundings" was sufficient evidence of serious emotional distress); People v. Cross , 114 P.3d 1, 6 (Colo. App. 2004) (sufficient evidence of serious emotional distress when victim testified that the defendant's behavior caused her to change her work schedule, feel nervous, and have trouble sleeping), rev'd in part on other grounds , 127 P.3d 71 (Colo. 2006) ; People v. Sullivan , 53 P.3d 1181, 1185 (Colo. App. 2002) (sufficient evidence of serious emotional distress when victim testified that she changed her routines, was afraid, felt she was constantly being watched, and had trouble sleeping).

¶ 32 Similarly, the evidence was sufficient for the jury to find that Wagner made credible threats. On several occasions, he told the victim something like, "If I can't have you, then no one can." The victim testified that, during one phone call, she heard Wagner pull the slide of a gun back. Wagner also told the victim that he knew where her family lived. Again, taking the evidence in the light most favorable to the People, we conclude that this evidence was sufficient for the jury to conclude that Wagner had made credible threats. See People v. Chase , 2013 COA 27, ¶¶ 53-54, 411 P.3d 740 (concluding that several emails containing "implicit and explicit threats" was sufficient evidence of credible threats when victim considered the emails serious and bought a gun as a result); People v. Suazo , 87 P.3d 124, 126 (Colo. App. 2003) (noting sufficient evidence of credible threat where the "defendant told the victim that he was going to kill her if she did not see him").

IV. Unanimity Instruction and Prosecutorial Election

¶ 33 Wagner contends that the trial court erred in rejecting a defense-tendered unanimity jury instruction or, in the alternative, failing to require the prosecution to elect between the alleged credible threats. We perceive no error.

¶ 34 In light of our conclusion that all Wagner's stalking convictions should merge, it may seem that we do not need to consider this argument. In Herron , the division apparently declined to address a similar contention in light of its conclusion that the defendant's stalking convictions should merge. See Herron , 251 P.3d at 1192-93 ("Because we agree with [the defendant's] double jeopardy argument, we do not address his alternative contention that the court erred in failing to require the prosecution to specify what conduct comprised emotional distress stalking and credible threat stalking or to give the jury a unanimity instruction concerning the stalking counts.").

¶ 35 However, we conclude that because of the large number of stalking incidents alleged under both the credible threat and serious emotional distress subsections of the stalking statute, we must address this contention regardless of our conclusion that Wagner's convictions should merge. The prosecution presented evidence of numerous occasions on which Wagner contacted and followed the victim, any number of which could have supported a stalking conviction. Thus, we must still address Wagner's argument that the jury should have been required to unanimously agree as to which acts in fact occurred.

A. Additional Facts

¶ 36 During a conference on the jury instructions, the defense tendered an instruction that read, "In order to convict the defendant of the crime of stalking as set forth in [the elemental instructions], you must either unanimously agree that the defendant committed the same act or acts, or that the defendant committed all of the acts described." In the alternative, the defense requested that the prosecution elect which acts constituted credible threats with regard to counts two and three because there were "a number of different statements, any one of which could" constitute a credible threat.

¶ 37 The trial court denied the defense's request, relying primarily on Carey , 198 P.3d 1223, and stating, "When a defendant is charged with crimes occurring in a single transaction, the [p]rosecution does not have to elect among the acts that constitute the crime, and the unanimity instruction need not be given."

B. Standard of Review

¶ 38 We review de novo whether the trial court was required to give a unanimity instruction. People v. Torres , 224 P.3d 268, 278 (Colo. App. 2009). We also review de novo whether "the prosecution's failure to elect the particular act on which it relies for conviction" denied a defendant due process of law. Quintano , 105 P.3d at 592.

C. Applicable Law

¶ 39 An accused has the right to a jury trial, U.S. Const. amends. VI, XIV ; Colo. Const. art. II, §§ 16, 25, and a unanimous jury verdict, § 16-10-108, C.R.S. 2017. "The trial court is responsible for ensuring that the jury is properly instructed on the law and that a conviction on any count is the result of a unanimous verdict." People v. Rivera , 56 P.3d 1155, 1160-61 (Colo. App. 2002). Therefore, as a general rule,

[w]hen evidence of many acts is presented, any one of which could constitute the offense charged, the trial court must take one of two actions to ensure jury unanimity: (1) require the prosecution to elect the transaction on which it relies for the conviction, or (2) if there is not evidence to differentiate between the acts and there is a reasonable likelihood that jurors may disagree on the act the defendant committed, instruct the jury that to convict it must agree unanimously that the defendant committed the same act or that the defendant committed all of the acts included within the period charged.

People v. Greer , 262 P.3d 920, 925 (Colo. App. 2011), as modified on denial of reh'g (Apr. 21, 2011).

¶ 40 However, that general rule is inapposite when there is no "reasonable likelihood that jurors may disagree on the act the defendant committed." Rivera , 56 P.3d at 1160 ; see also Greer , 262 P.3d at 925. Thus, a trial court errs in rejecting a request for prosecutorial election or in denying a unanimity instruction only "[i]f the record demonstrates that '[s]ome of the jurors may have decided to convict on one act, while others may have decided to convict on another' such that 'it is impossible to be reasonably certain of the reliability of the judgment of conviction.' " People v. Gookins , 111 P.3d 525, 528 (Colo. App. 2004) (quoting Woertman v. People , 804 P.2d 188, 192 (Colo. 1991) ).

D. Analysis

¶ 41 Wagner contends that the trial court erred by rejecting the unanimity instruction or by failing to require the People to elect which acts were credible threats in support of counts two and three. We disagree.

¶ 42 During trial, the defense's theory of the case was that Wagner had committed harassment rather than stalking. In fact, the defense began its closing argument by stating that "no one was going to deny how many text messages [there were] and how much contact there was" between Wagner and the victim. As Wagner acknowledges in his reply brief, it was "undisputed" that he made repeated contact with the victim. The defense did not argue that Wagner did not commit any of the acts about which the victim or the other witnesses testified.

¶ 43 We conclude that this is a case in which the evidence "described repeated acts with respect to a single victim-witness, such that the jury would be likely to agree either that all of the acts occurred or that none occurred." Rivera , 56 P.3d at 1160. Accordingly, there is no "reasonable likelihood that the jury could have disagreed concerning the act or acts [Wagner] committed" and the prosecution therefore was not required to elect on which acts it was relying to prove that Wagner had made a credible threat. See id. Nor was the trial court required to give a unanimity instruction. See Carey , 198 P.3d at 1236 ; see also Melina v. People , 161 P.3d 635, 639-40 (Colo. 2007). Thus, the trial court did not err in denying the defense's request for prosecutorial election or, in the alternative, for a unanimity instruction.

V. Conclusion

¶ 44 Accordingly, we vacate two of the counts and remand for the trial court to merge the convictions under section 18-3-602(1)(a), (b), and (c), and to correct the mittimus. In all other respects, the judgment is affirmed.

Harris and Rothenberg , JJ., concur

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2017.

      Wagner was also charged with violation of a mandatory protection order imposed after his arrest on the stalking charges. He pleaded guilty to this charge at the close of his jury trial. Wagner does not challenge this conviction on appeal.

      Although we conclude that the trial court was not required to give the jury a unanimity instruction under the circumstances here, a unanimity instruction may be appropriate in cases, such as stalking, in which the charged crime is composed of multiple distinct acts.