Peo v. Rhoades

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19CA1356 Peo v Rhoades 12-16-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA1356
El Paso
County District Court No. 17CR6900
Honorable
Larry E
. Schwartz, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
James Manning Rhoades
,
Defendant-Appellant.
JUDGMENT REVERSED
AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE DAILEY
Dunn and
Kuhn
, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 16, 2021
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Taylor Hoy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1
Defendant, James Manning Rhoades, appeals the judgment of
conviction finding him guilty of felony driving under the inf
luence
(DUI). We reverse and remand with directions.
I.
Background
¶ 2
Around 10:50 p.m. on December 6, 2017, Officer Jeremy Lux
of the Colorado Springs Police Department responded t
o a report of
a suspicious vehicle parked in a dirt lot. The caller, who live
d near
the lot, reported the vehicle had been in the lot for several ho
urs.
Officer Lux discovered
Rhoades sitting in the driver’s seat of his
flatbed Ford pickup with the truck’s motor running.
¶ 3
Upon questioning Rhoades, Officer Lux observed signs of
intoxication, detained Rhoades, and called another officer, Of
ficer
Darin Beilfuss, to the scene to administer sobriety tests.
At the
scene, Rhoades admitted to being intoxicated and submitt
ed to
Horizontal and Vertical Gaze Nystagmus (HGN and VGN,
respectively) roadside sobriety tests, failing each. The police
arrested Rhoades, and about an hour later, he submitted to a blood
2
draw, which returned a blood alcohol level of 0.241 grams pe
r
hundred milliliters
—
three times the legal limit.
1
¶ 4
At trial, Rhoades testified that he had been parked in
the lot
since about 12:30 p.m. that day. Before stopping i
n the lot, he had
driven his son to a neighboring town and, upon returning,
purchased a bottle of liquor and drove to the lot. Rhoades wa
s
homeless at the time, although he gave Officer Lux a home a
ddress.
He testified that he parked in the lot for lack of any other place to
go, and that he and his son had been there drinking until shortly
before Officer Lux arrived. According to Rhoades, he had not
moved
or driven the vehicle since arriving at the lot and had run t
he
engine on and off throughout the day to stay warm.
¶ 5
Rhoades’s defense was that although he was intoxicated on
December 6, he did not drive the vehicle at any time aft
er he began
drinking.
2
1
See
§ 42-4-1301 (6)(a)(III), C.R.S. 2021 (A
person’s blood alc
ohol
content of “0.08 or more . . . gives rise to the permiss
ible inference
that the defendant was under the influence of alcohol.”).
2
For DUI purposes, however, a person may “drive” a
vehicle without
moving it in any way.
See
People v. Swain
,
959 P.2d 426
, 42
7
(Colo. 1998)
(“
[P]roof of actual physical control of a vehicle
wa
s
3
¶ 6
The jury found Rhoades guilty of DUI. Later, the trial court
held a separate hearing in which it found by a preponderance of the
evidence that Rhoades had four prior DUI convictions,
only three of
which were required to elevate Rhoades’s DUI offense from a
misdemeanor to a felony.
See
§ 42-4-1301(1)(a), C.R.S. 2021.
The
court sentenced Rhoades to a term of three years of probation.
¶ 7
On appeal, Rhoades contends that the trial court reversibly
erred by (1) finding that he had four prior DUI convict
ions by a
preponderance of evidence rather than submitting the
issue to the
jury to decide beyond a reasonable doubt; (2) concluding that t
he
evidence was sufficient to show that he had previously
been
convicted four times of DUI; and (3) excluding certain evidence an
d
admitting certain evidence.
¶ 8
We address each contention in turn.
sufficient to establish that [a person]
‘drove’ a vehicle within
the
meaning of [the alcohol-related driving offense statute section 42-4-
1301(1), C.R.S. 2021].
”
);
Brewer v. Motor Vehicle Div., Dep
’
t
of
Revenue,
720 P.2d 564, 566-67
(Colo. 1986) (holding that driving
is
not limited to “placing and controlling a vehicle in motion”)
;
People
v. Valdez
,
2014 COA 125
, ¶¶ 11-12 (For DUI purposes, driving
does
not
require “physical movement of a vehicle
. . . .”).
4
II.
Felony DUI
¶ 9
Rhoades contends that under the felony DUI statute, the prior
convictions are elements of the crime rather than sentence
enhancers. Thus, he was entitled to have a jury determine
beyond
a reasonable doubt whether he had prior convictions for im
paired-
driving offenses. We agree.
¶ 10
“DUI is ordinarily a misdemeanor, but it becomes felony
DUI if
it occurs after three or more convictions for DUI, DU
I per se, or
driving while ability impaired (DWAI).”
People v. Carter
, 2021 COA
29, ¶ 7 (citing
§
42
-4-1301(1)(a)).
In
Linnebur v. People
, the
supreme court held that the existence of three or more prio
r
alcohol-
related driving convictions is “a substantive element of
felony DUI,” which must “be tried to a jury and found beyon
d a
reasonable doubt”; it is “not a sentence en
hancer to be found
by the
court.”
2020 CO 79M, ¶ 31
.
¶ 11
Because the court, rather than the jury, determined that
Rhoades had three or more prior alcohol-related driving convictions,
Rhoades was denied his right to a jury trial on all the elements
of
felony DUI.
See
id.
Consequently, Rhoades’s conviction for felony
DUI must be reversed.
5
III.
Double Jeopardy /Sufficiency of Evidence
¶ 12
Rhoades next contends that the prosecution presented
insufficient evidence to link him to the four prior convictions at
issue in the case.
¶ 13
This issue is integrally intertwined with that of whether the
prosecution would, under double jeopardy principle
s, be permitted
to retry Rhoades for felony DUI.
See McDonald v. People
, 2021
CO
64, ¶ 61
.
Ordinarily, these issues would be reviewable on appeal.
Id.
¶ 14
But in
Linnebur
,
¶ 32
,
the supreme court held that if “
the
prosecution seeks retrial of the felony DUI charge and Linnebur
raises a double jeopardy defense, the trial court must rule on
that
defense.”
¶ 15
In
People v. Tun
, a division of this court declined to address a
sufficiency of evidence issue like the one raised here because (1)
inasmuch as the “prior convictions” issue was treated as sent
ence
enhancer, rather than an element of felony DUI, the t
rial court had
permitted the prosecution to proceed under a preponde
rance of
evidence standard; and (2) double jeopardy was to be deci
ded, in
the first instance, by the trial court:
6
Under
Linnebur
, before the People can [re-]try
[the defendant] for felony DUI . . . , they must
first demonstrate that retrial is not barred by
constitutional double jeopardy limitations.
Only if they prevail on this issue in the trial
court can they attempt to prove, beyond a
reasonable doubt, that [the defendant] has
three prior DUI convictions.
Because the trial court has not yet ruled on
the double jeopardy challenge that will surely
be raised on retrial and the People have not yet
attempted to prove, beyond a reasonable
doubt, that [the defendant] has at least three
prior qualifying convictions, any opinion on
these issues would be advisory only. We must
avoid issuing such opinions. We therefore
decline to address the sufficiency of the
evidence of prior convictions . .
. .
2021 COA 34
, ¶¶ 21-
22
(citations omitted)
.
¶ 16
Like the division in
Tun
, and for the same reasons, we too
decline to address the sufficiency of evidence issue presented he
re.
3
IV.
Evidentiary Issues Affecting Rhoades’s Misdemea
nor Conviction
¶ 17
Rhoades contends that the misdemeanor DUI conviction must
also be reversed because the court erroneously (1) allowed an officer
3
The supreme court currently has before it a case where, in
circumstances similar to those present here, the trial court
denied a
motion to bar, on double jeopardy grounds, a second trial fo
r felony
DUI.
See People v. Viburg
, (Colo. No. 21SA153, May 11, 2021)
(unpublished order)
.
7
to testi
fy
about HGN and VGN testing without qualifying the off
icer
to give expert testimony; and (2) precluded him from eliciting
evidence as to the underlying reason for the police responding t
o
the lot where Rhoades’s truck was. We disagree.
¶ 18
Because we review preserved challenges to a
trial court’s
evidentiary ruling for an abuse of discretion
,
People v. Reed
, 2013
COA 113, ¶ 31, we will not overturn such a ruling absent a sh
owing
that it is either manifestly arbitrary, unreasonable, or unf
air
,
People
v. Castro
,
854 P.2d 1262, 1265
(Colo. 1993), or based on an
erroneous view of the law,
People v. Moore
,
226 P.3d 1076
, 108
1
(Colo. App. 2009).
A.
Expert versus Lay Evidence
¶ 19
An officer testified that he had utilized HGN and VGN roa
d
si
de
sobriety tests in assessing whether Rhoades was intoxicated.
He
explained to the jury what those tests were and what certain
reactions signified.
¶ 20
“If the w
itness provides testimony that could be expected to
be
based on an ordinary person’s experiences or knowledge, then
the
witness is offering lay testimony. If, on the other hand, the wi
tness
provides testimony that could not be offered without specialize
d
8
experiences, knowledge, or training, then the witness is off
ering
expert testimony.”
Venalonzo v. People
,
2017 CO 9, ¶ 22
.
¶ 21
Rhoades correctly points out that the
officer’s HGN and VGN
testimony is unquestionably expert, not lay, testimony.
See
Campbell v. People
,
2019 CO 66
, ¶¶ 23-31 (HGN testimony).
¶ 22
The question here, though, is whether the trial court admitted
this evidence as lay rather than expert evidence.
¶ 23
As the officer attempted to explain one of the tests to t
he jury,
the following occurred:
OFFICER: So that test is, in layman
’
s terms,
you stand very still, don
’
t move your head, and
I move my finger back a few times and I watch
your eyes. There
’
s very specific clues for
alcohol impairment.
DEFENSE COUNSEL: Objection, Your Honor.
Improper opinion. Calls for expert testimony.
THE COURT: Are you offering him as having
specialized knowledge?
PROPSECUTOR: Yes, Your Honor, in
administering the roadside tests.
THE COURT: Then it is proper opinion.
PROSECUTOR: You can go ahead and answer.
9
¶ 24
Defense counsel made no further objections to this witness’s
testimony.
¶ 25
We need not decide whether the court’s conclusion
represented a determination that the officer was giving
, much less
was qualified to give, expert testimony.
¶ 26
Rhoades does not argue that the officer was unqualified t
o give
expert opinion evidence on HGN and VGN testing.
4
He does,
however, argue that the officer should have been endorsed as an
expert prior to trial to allow him an opportunity to c
ontest the
officer’s testimony.
¶ 27
Rhoades did not argue in the trial court that the officer ne
eded
to have been endorsed as an expert. Nor did he argue he was
surprised by, or needed a continuance to refute, the
officer’s
testimony. His “
failure to request a continuance belies any
claim
that he was surprised or prejudiced by the detective
’s testimony.”
People v. Brown
,
313 P.3d 608, 617
(Colo. App. 201
1).
4
The officer testified that he has received training on nat
ionally
standardized sobriety testing
—
including VGN and HGN testing
—
in Michigan and Colorado and is certified to administer these tests.
He must annually recertify and complete continuing education
requirements.
10
¶ 28
Further, any error in admitting the officer’s testimony (as
either lay testimony or as unendorsed or unqualified expe
rt
testimony) was harmless.
¶ 29
“
[E]videntiary rulings are subject to the nonconstitution
al
harmless error standard.”
People v. Carian
,
2017 COA 106, ¶
41
.
Under that standard, to avoid reversal the People must show that
the error did not substantially influence the verdict or affect the
fairness of the trial proceedings.
James v. People
, 2
018 CO 72
,
¶
19.
¶ 30
An error substantially influences the verdict or affects t
he
fairness of the proceedings where there is a reasonable pr
obability
that the error contributed to a defendant’s conviction.
People v.
Casias
,
2012 COA 117, ¶ 61
. “‘[A] reasonable probability’ does n
ot
mean that it is ‘more likely than not’ that the error caused the
defendant’s conviction,” rather, “it means only a probability
sufficient to undermine confidence in the outcome of the
case.”
Id.
at ¶ 63 (quoting
Krutsinger
v. Peop
le
,
219 P.3d 1054
, 1060 n.
3
(Colo. 2009)).
¶ 31
Any error committed by the trial court here was harmless fo
r
the same reasons identified by the supreme court in
Campbell
.
11
There, the testimony of the officer who administered the
defendant’s
roadside sobriety tests was improperly admitted as lay witness
evidence.
Campbell
,
¶¶ 23-
26. The defendant’s defense in t
hat
case was that, although he admitted he had been drinking, he had
only done so after being pulled over.
Id.
at ¶ 16. H
ere, Rhoades’s
defense was also that, although he had been drinking, he had only
done so after parking his vehicle. Similar to the circumstan
ces in
Campbell
,
•
the evidence of Rhoades’s intoxication was
“overwhelming”
;
•
among other things, he had an odor of alcohol on his
breath, bloodshot eyes, and slurred speech;
•
Rhoades was unable to stand up, for purposes of
completing other roadside sobriety tests;
•
the officers on the scene found an empty liquor bottle in
Rhoades’s vehicle
;
•
during his conversation with the responding officer,
Rhoades admitted he’d consumed alcohol
; and
•
Rhoades’s
blood alcohol test returned a BAC of .241
—
well over the legal limit.
12
See id.
at ¶¶ 38, 40.
¶ 32
Because, as in
Campbell
, the evidence
“
overwhelmingly
supported the jury’s det
ermination that [Rhoades] drove while his
ability was impaired by alcohol, . . . any error . . .
was harmless.”
See
id.
at 41.
B.
Responding to a Call About a Suspicious Vehicle
¶ 33
The prosecution elicited evidence that Officer Lux went
to the
lot where Rho
ades’s truck was
parked in response to a call involving
a “suspicious” vehicle. Concerned that the jury might speculate
about why Rhoades’s truck was considered a “suspicious” v
ehicle,
Rhoades requested that he be allowed to elicit the reason why
his
vehi
cle was considered “suspicious.” The reason was t
he length of
time (“several hours”) a citizen reported the truck as having been
parked in the lot. The trial court denied Rhoades’s request
because
the evidence would’ve introduced inadmissible hearsay int
o the
case.
¶ 34
In our view, the court erred by precluding Rhoades from
eliciting the desired evidence. By presenting evidence that
Officer
Lux went to the lot to check out a “suspicious” vehicle, the
prosecution opened the door to other evidence explaining the
13
reason why the police were sent to check on a “suspicious” v
ehicle.
See
People v. Tenorio
,
197 Colo. 137, 146
,
590 P.2d 952, 958
(1979)
(A party’s presentation of evidence
can create for the opposing party
“a right to explain or rebut any
adverse inferences which might
have resulted
. . . .”).
¶ 35
And, contrary to the trial court’s perception, out of c
ourt
statements evidencing the reason why police took certain acti
on is
not inadmissible hearsay.
See
People v. Barajas
, 2021 COA 9
8,
¶
52
(
“
An out-
of
-court statement is not hearsay if it
is offered for
some other purpose, such as to provide context for other
actions, to
show its effect on the listener, or to explain why a government
investigation was undertaken.”
);
see also Tenorio
,
590 P.2d at 958
(“
None of the above statements by the officers were inadmissible
hearsay. They were elicited only to establish the officers
’
reasons
for initially going to the park and for drawing their g
uns after arrival
there.”
);
People v. Robinson
,
226 P.3d 1145, 1151-53
(Colo. Ap
p.
2009) (officer’s references to informant’s
out-
of
-court statements
to
explain the reasons for investigation are not hearsay).
14
¶ 36
The question, at this point, is whether the court’s error
requires reversal. Under Crim. P. 52(a), we disregard a h
armless
error.
¶ 37
‘“[T]he single most
important factor’ in a nonconstitutional
harmless error inquiry is whether the case was ‘close.’”
Ca
sias
,
¶ 69 (quoting
United States v. Ince
,
21 F.3d 576, 584
(4th
Cir.
1994)).
[A]ppellate assessment of the “closeness” of an
issue as it probably appeared to a jury is of
course a highly judgmental process, involving
much more of feel than of science. While
assessing closeness necessarily requires
looking to the probative force of other evidence
tending to prove the issue, that . . . is not for
the purpose of determining whether, if
independently considered, that evidence would
have sufficed to convict. The inquiry into
“closeness” instead involves assessing whether
the other evidence is not only sufficient to
convict, but whether it is sufficiently powerful
in relation to the tainted evidence to give “fair
assurance” that the tainted evidence did not
“substantially sway” the jury to its verdict.
Id.
(quoting
Ince
,
21 F.3d at 584
).
¶ 38
As indicated above, this case was not “close.” In closing
argument, Rhoa
des’s counsel conceded that Rhoades was severely
impaired: “Ladies and gentlemen of the jury, we’re not here to
15
contest that [Rhoades] was not drunk. He was drunk.
He was
wasted.” His defense, though, was that he drank after he ha
d
finished driving.
¶ 39
Bu
t, under the DUI statute, “driving”
does not require
“physical movement of a vehicle
. . . .”
Valdez
, ¶¶ 11-12. It only
requires “‘actual physical control’ of a vehicle.”
Swain
, 959
P.2d
at
431 (citation omitted)
.
¶ 40
On cross-examination, Rhoades admitted that (1) he was
drunk; (2) he was in control of his truck; and (3)
his truck’s
engine
was running. In admitting these matters, Rhoades confessed to
committing misdemeanor DUI.
See Swain
,
959 P.2d at 427, 431
(upholding a conviction for DWAI
—
a lesser included offense of DUI
—
of an intoxicated individual found “either asleep or passe
d out, in
the front seat, . . . with his feet near the driver
’
s side door and his
head resting towards the passenger
’s side door,” with the “keys . .
.
in the ignition” and the engine turned off);
see also Smith v.
Charnes
,
728 P.2d 1287, 1292
(Colo. 1986) (holding t
he defendant
exercised actual physical control of the vehicle when he was
intoxicated and found asleep or unconscious behind the wheel of
a
stopped vehicle, with the engine running and the lights on).
16
¶ 41
Under the circumstances, the exclusion of the neighbor’s
report that the truck had been parked for hours wa
s
inconsequential. Why the neighbor called the police didn’t negat
e
Rhodes’s testimony that established misdemeanor DUI.
And, in any
event, Rhoades himself testified that his truck had been parked
in
the lot for ten hours.
¶ 42
Under the circumstances, we conclude that there was no
reasonable probability that
the court’s ev
identiary error contribute
d
to Rhoades
’s
misdemeanor DUI conviction. Consequently, reversal
of that conviction is not warranted.
V.
Disposition
¶ 43
The judgment of conviction of felony DUI is reversed and the
matter is remanded to the trial court for further proceedings. If t
he
prosecution seeks to retry Rhoades on the felony DUI charge and
Rhoades raises double jeopardy issues, the trial court must r
ule on
those issues and determine whether retrial is constitutionally
permissible. If the People do not elect to retry Rhoades on the
charge of felony DUI, the trial court shall enter a conviction an
d
sentence for misdemeanor DUI.
JUDGE DUNN and JUDGE KUHN concur.