People v. Lopez
Gage Lopez, an inmate at a Department of Corrections facility, walked inside from the prison yard and twice exposed his genitals to a case manager in the doorway leading into the unit. He was charged with felony indecent exposure — third or subsequent offense under section 18-7-302(1)(a), (4), C.R.S. 2019.
At trial, defense counsel argued Lopez did not commit indecent exposure because he did not act with the requisite sexual intent, but rather exposed himself so he could be placed in administrative segregation. She also requested an instruction on the lesser non-included offense of public indecency, arguing that because Lopez acted without sexual intent the jury could acquit him of indecent exposure but convict him of public indecency.
The court rejected the instruction, finding that a secured area in a DOC facility was not “public” under the public indecency statute. The jury convicted Lopez as charged and the court sentenced him to five years supervised probation.
Lopez appealed. Concluding, apparently for the first time, that the common area in a prison facility is a “public” area for purposes of the public indecency statute, a division of the Colorado Court of Appeals held that Lopez was entitled to an instruction on the lesser non-included offense of public indecency. Because the trial court declined his request to give that instruction, the division reversed and remanded the case for a new trial, further concluding that one of Lopez’s prior convictions for indecent exposure was void because the initial charge in that case was filed after the statute of limitations had expired. Accordingly, on retrial, the People cannot rely on that conviction to elevate the current indecent exposure charge to a felony.
People v. McClintic
Stacy McClintic appealed the judgment of conviction entered on jury verdicts finding her guilty of introducing contraband in the first degree, driving under the influence and a lane usage violation.
According to the prosecution’s evidence, McClintic was weaving between lanes of traffic and was stopped by police. The officer suspected McClinticwas impaired or suffering from a medical condition because she was dazed, distracted and confused, and because her purse was full of prescription medicine bottles. She told the officer she had a heart condition and confessed that she would not pass a roadside sobriety test and could not maintain her balance when she got out of the vehicle. She refused a blood test, and officers brought her to the Teller County jail.
During “prebooking,” an officer told McClintic that she would be conducting a strip search for safety purposes. McClintic verbally refused to be strip searched and said she was “not giving [the officers her] weed.” Shortly thereafter, McClintic complained of chest pains and was transported to the hospital. When she was released from the hospital, McClintic was transported back to jail.
The transporting officer’s usual practice was to ask those he transported whether “they have anything else on them that [he] should know about.” Although he did not specifically remember his interaction with McClintic, the officer testified that he did not obtain anything from McClintic or write a report about it. Back at the Teller County jail, McClintic refused to stand to walk to the bathroom for a strip search. After helping her to the bathroom, the prebooking officer asked McClintic (now standing) if she had “anything on [her] other than the clothes [she was] wearing.” McClintic again disclosed that she was carrying “weed” in her pocket, pulled out a clear plastic baggie of marijuana, and handed it to a deputy. She was otherwise “verbally and passively” uncooperative with the search, which did not reveal any additional contraband.
After a two-day trial, a jury found McClintic guilty of driving under the influence, a misdemeanor; lane usage violation, a traffic infraction; and introducing contraband in the first degree, a felony. The issues McClintic raises on appeal relate only to the felony conviction.
Addressing a novel fact pattern, a division of the Colorado Court of Appeals considered whether there was sufficient evidence to support a conviction for introducing contraband in the first degree when the defendant was arrested with marijuana in her pocket and was generally uncooperative with a strip search, but volunteered her possession of marijuana to booking officers and surrendered it when asked to do so.
The division concluded that there was no evidence of a voluntary act to support the defendant’s conviction because she did not voluntarily enter the jail, deny her possession of marijuana or attempt to conceal the contraband. The division further concluded that in Colorado, mere knowing possession of contraband upon involuntary entry to a detention facility, without denial when asked or concealment or attempted concealment, is insufficient to support a conviction for introducing contraband.
People v. Marston
Shortly before noon one day, J.P. was driving behind a red truck when he saw the truck straddling lanes and speeding up and slowing down erratically. He also saw the driver nodding off at the wheel. J.P. called 911 and followed the truck to a 7-Eleven. Shawn Marston got out of the truck and went into the 7-Eleven, at which point J.P. approached a Jefferson County Sheriff’s Deputy Aaron Fosler, who had just pulled into the parking lot. J.P. told Fosler what he had seen and Fosler followed Marston into the 7-Eleven. Fosler asked Marston to step outside the convenience store and answer some questions. Marston obliged.
As Fosler held the door open and Marston walked out, he saw that Marston was “staggering, grabbing something to hold onto.” Outside, Fosler questioned Marston about his driving and whether he had been drinking. Marston told him that his driver’s license was suspended, told the officer he had driven to the 7-Eleven but then said his girlfriend had driven him there, and told the officer he had downed several “mixed drinks” the night before at his girlfriend’s house.
Unprompted, Marston asked Fosler if there was any way to keep his truck from being towed if he was taken to jail. Throughout this conversation, Fosler noticed that Marston’s eyes were red and watery, he smelled of alcohol, and his speech was “thick tongued.” Based on Marston’s statements and Fosler’s observations, Fosler called for another officer, Deputy Kevin Kehl, to administer roadside field sobriety tests. Kehl did so.
One such test was the HGN test, which requires the subject to follow an object (for example, a pen) with his eyes to the left and right. The person administering the test must watch the subject’s eyes to detect any involuntary “jerking” of his eyeballs. At one point during the roadside tests, when Kehl was demonstrating a walk-and-turn maneuver, Marston said, “I couldn’t do that sober.” Kehl determined that Marston didn’t perform as a sober person would on the HGN test and the other roadside tests and arrested him. Marston refused to take a chemical test.
After Marston’s girlfriend picked up the truck from the 7-Eleven, she found bottles of vodka in the back of the truck. She testified at trial that, contrary to what Marston had told Fosler, she wasn’t with Marston the night before the arrest and in fact hadn’t seen him in several weeks. The People charged Marston with driving under the influence (DUI) and driving under restraint. Marston went to trial on the DUI charge. The jury ultimately convicted him of the lesser included DWAI offense. The court then determined that Marston had at least three prior alcohol-related driving convictions and sentenced him for felony DWAI.
Marston appealed, raising the issue of whether the district court was required to hold a Shreck hearing before allowing a police officer to testify about the results of a horizontal gaze nystagmus (HGN) test the officer administered to him immediately before he was arrested. A division of the Colorado Court of Appeals held that no such hearing was required; the results of such a test are generally admissible, if relevant, as evidence of impairment, so long as the person testifying about the administration and results of the test is competent to give such testimony. The officer in this case was, so the court didn’t err by allowing the officer’s testimony. The division also rejected Marston’s other challenges to the judgment and affirmed.