Colorado Court of Appeals Opinions
July 21, 2011

No. 07CA2511. People v. Gregg.
Felony—Consolidation—Aggravated Robbery—Evidence—Habitual Criminal.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of three counts of aggravated robbery. Defendant also appealed his adjudication as a habitual criminal. The judgment and sentence were affirmed.

Defendant contended that evidence in each case would not have been admissible in separate trials and, consequently, the trial court erred in consolidating the three aggravated robbery cases for trial. Two or more offenses may be charged in the same indictment or information if the offenses are of the same or similar character or are based on two or more connected acts or transactions or parts of a larger scheme or plan of action. Here, the three aggravated robberies occurred within months of one another and each involved death threats during robberies of banks in the same city. The robberies, though not the same in all respects, were sufficiently similar to permit the evidence concerning them to be admitted in one consolidated trial. Because the evidence of the three robberies would have been admissible in separate trials, the court did not abuse its discretion when it consolidated the three cases for trial.

Defendant also contended that there was insufficient evidence that he used or threatened to use a real or simulated weapon to support his aggravated robbery convictions for the second and third robberies. The notes used in the second and third robberies said, “I will shoot you” and “I’ll put a bullet in your head and send you to hell.” Further, defendant kept at least one of his hands in his pocket during both robberies, and both tellers testified that after reading defendant’s notes, they believed their lives were in danger. Therefore, this evidence was sufficient to support the aggravated robbery convictions.

Defendant further contended that the evidence was insufficient to support the trial court’s judgment finding him guilty of the habitual criminal count. The court accepted into evidence authenticated and certified documents showing defendant had two previous Colorado felony convictions. The court also accepted the testimony of defendant’s probation officer regarding the judicial process by which supervision of probation is transferred under the Interstate Compact Act and the documents she received from California regarding defendant’s felony conviction there as part of that process. The court found that the documents regarding defendant’s previous felony conviction in California met the public records exception to the hearsay rule. The California documents also properly identify defendant as the person convicted in California. Therefore, the trial court did not abuse its discretion when it found that the prosecution laid a sufficient foundation regarding the authenticity of these documents, and the evidence was sufficient to support defendant’s habitual criminal conviction.

No. 08CA2101. People v. Esparza-Treto.
Assault—Serious Bodily Injury—Deadly Weapon—Reckless Driving—Vehicular Eluding—Merger—Jury Instructions.

Defendant Ezequiel Esparza-Treto (Esparza) appealed his judgment of conviction and sentence entered on jury verdicts finding him guilty of first-, second-, and third-degree assaults, vehicular assault, reckless driving, speeding, violation of a traffic control device, and vehicular eluding. The judgment was reversed in part, vacated in part, and affirmed in part.

This case arose from a high-speed chase through Grand Junction that ended when Esparza collided with another vehicle. The accident caused serious bodily injury to both Esparza’s passenger and the driver of the other vehicle.

On appeal, Esparza contended that the evidence at trial was insufficient to prove beyond a reasonable doubt that he committed the crimes of first-, second-, and third-degree assault. The evidence amply established that Esparza drove recklessly and with extreme indifference through business and residential areas of Grand Junction when he struck another vehicle causing serious bodily injury. Thus, his conviction for first-degree assault with extreme indifference is supported by the evidence. The crimes of second-and third-degree assault, however, require the use of a deadly weapon. Here, there was no evidence that Esparza used his vehicle in connection with assaultive conduct specifically directed toward the other driver. To the contrary, the evidence showed that Esparza was attempting to avoidthe other driver’s car when the collision occurred. Therefore, the evidence at trial was insufficient to support his second and third-degree assault convictions.

Esparza next argued that his reckless driving conviction should have merged into his vehicular eluding conviction. Reckless driving is a lesser-included offense of vehicular eluding under the strict elements test. Therefore, the trial court erred in not merging Esparza’s convictions for these two offenses.

Esparza also contended that his conviction for attempting to elude a police officer should merge into his conviction for vehicular eluding. Attempting to elude a police officer is not a lesser-included offense of vehicular eluding. Therefore, the court did not err in this regard.

Esparza further contended that the trial court abused its discretion when it rejected his proffered jury instruction defining the terms “extreme indifference” and “grave risk of death,” both of which are elements of first-degree assault. In Jury Instruction No. 11, the trial court used the precise language of CRS § 18-3-202(1)(c) to instruct the jury on the elements of assault in the first degree with extreme indifference. Here, the trial court used commonly understood words to define the first-degree assault elements of “extreme indifference to human life” and “grave risk of death.” The trial court’s decision not to give Esparza’s proffered jury instruction therefore was not manifestly arbitrary, unreasonable, or unfair, nor was it based on an erroneous understanding or application of the law.

No. 08CA2144. People v. Chavez.
Voir Dire—Challenge for Cause—Bias.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of sexual assault (aided and abetted), sexual assault on a child (force), sexual assault on a child, enticement of a child, and enticement of a child (bodily injury). The judgment was reversed and the case was remanded for a new trial.

Defendant contended that the trial court erred in denying his challenges for cause to jurors P, M, and R. Defense counsel questioned jurors early in voir dire about the prosecution’s burden of proof. Near the close of voir dire, defense counsel informed the prospective jurors for the first time that evidence would be presented at trial showing that defendant had shot someone other than the alleged sexual assault victim. Jurors P and R clearly indicated that the shooting would cause them to question defendant’s character and ease the prosecution’s burden. The trial court declined to extend voir dire to conduct potentially rehabilitative questioning. Considering the voir dire in its entirety, the record was devoid of indications that these two jurors could set aside their biases and follow the court’s instructions to render a fair and impartial verdict based solely on the law and the evidence. Under the circumstances presented here, the trial court erred in not dismissing these jurors for cause based on actual bias. Further, because defendant exercised peremptory challenges to excuse those jurors and he exhausted all of his peremptory challenges, the trial court’s denial of the challenges for cause to jurors P and R was an abuse of discretion and required reversal of the conviction.

No. 09CA2479. Club Matrix, LLC v. Nassi.
Lease—Fraudulent Inducement—Damages—Expert Opinion—Evidence.

Defendants Beauvallon Corp. and Craig Nassi (collectively, lessor) appealed the portion of the judgment entered against them and in favor of plaintiff Club Matrix, LLC (lessee) for fraudulently inducing lessee’s assignor to enter into a commercial lease, including the award of damages and prejudgment interest. The judgment was reversed.

Beauvallon leased commercial space to Lawrence L. Levy, LLC (Levy), which later assigned the lease to lessee. The original lease stated that Levy would use the premises to operate a health club, and included a rider in which Beauvallon granted Levy the exclusive use of 150 parking spaces for the health club’s customers. Beauvallon never provided the exclusive use of the parking spaces to Levy or lessee during the terms of the contract.

Lessor contended that the damages award for fraudulent inducement to enter the lease was clearly erroneous, because lessee did not present competent evidence establishing damages. Lessee’s expert determined lessee’s damages based on the loss of the exclusive use of the parking spaces. Contrary to the expert’s premise, however, the lease did not grant lessee unrestricteduse of the parking spaces. The lease also did not grant lessee the right to use the parking spaces, individually or collectively, as monthly public parking or to assign its parking rights or sublease the spaces to a third party for that purpose. The lease only provided lessee with the exclusive use of the parking spaces for its customers. Therefore, lessee’s expert’s opinion regarding the fee simple value of the parking spaces in the complex was not competent evidence of the lessee’s actual damages. Because such proof is an essential element of fraudulent inducement to contract, the judgment in favor of lessee with regard to that claim was reversed and judgment was entered for lessor.

Colorado Court of Appeals Opinions

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