The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 6, 2020
2020COA19
No. 16CA0107, People v. Thomas — Crimes — Resisting Arrest
— Assault in the Third Degree — Criminally Negligent Bodily
Injury to an At-Risk Adult; Criminal Law — Lesser Included
Offenses
A division of the court of appeals considers whether (1) a
defendant resisted arrest when he went limp while being moved to a
patrol car; (2) the condition of the area surrounding an arrest can
properly be considered to prove that a defendant’s resistance
created a substantial risk of causing bodily injury to the arresting
officer; (3) causing negligent injury to an at-risk adult is included in
third degree assault causing injury to another person; and (4)
section 18-1.3-801(2)(b), C.R.S. 2019, eliminates level 4 drug
felonies as triggering and predicate felonies under section
18-1.3-801(2)(a).
The division concludes that, by going limp while being moved
to the patrol car, the defendant resisted arrest because he was
resisting police efforts to maintain physical control over him and to
proceed with arrest procedures of booking and bonding. People v.
Tottenhoff, 691 P.2d 340, 344-45 (Colo. 1984).
A defendant resists arrest when, among other things, he or
she uses means other than the direct use or threat of physical force
or violence that “create[] a substantial risk of causing bodily injury
to the peace officer or another.” § 18-8-103(1)(b), C.R.S. 2019. The
division concludes that this includes increasing the risk that a
peace officer or another will be injured by surrounding conditions.
The division also concludes that proof that the victim was a
person does not always prove that the victim was at least seventy
years old. Hence, negligent bodily injury to an at-risk adult is not a
lesser included offense of third degree assault causing injury to
another.
The division further concludes that section 18-1.3-801(2)(b)
eliminates level 4 drug felonies as triggering felonies for habitual
criminal sentencing, but does not prohibit courts from considering
level 4 drug felony convictions as predicate felony convictions.
Therefore, the division affirms the convictions and sentence.
COLORADO COURT OF APPEALS 2020COA19
Court of Appeals No. 16CA0107
Mesa County District Court No. 15CR304
Honorable Charles R. Greenacre, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Weston Jefferson Thomas,
Defendant-Appellant.
JUDGMENT AND SENTENCE AFFIRMED
Division I
Opinion by JUDGE CARPARELLI*
Taubman and Grove, JJ., concur
Announced February 6, 2020
Philip J. Weiser, Attorney General, Carmen Moraleda, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 Defendant, Weston Jefferson Thomas, appeals the judgment of
conviction and sentence entered on jury verdicts finding him guilty
of third degree assault (a class 6 felony), resisting arrest (a class 2
misdemeanor), and negligent bodily injury to an at-risk adult (a
class 6 felony). He also appeals his adjudication and sentencing as
a habitual criminal. We affirm.
I. Background
¶2 Thomas lived in a trailer on the victim’s property. According
to the victim, she went to Thomas’s trailer after receiving
complaints that Thomas was being loud and disruptive. When she
did so, Thomas grabbed her by the neck with two hands and
slammed her into a nearby parked car. During the altercation,
Thomas yelled at the victim that she “didn’t belong in this world.”
¶3 S.F., who lived in a nearby trailer, testified that he came out of
his trailer when he heard a ruckus. He said he saw Thomas with
two hands around the victim’s neck, holding her up against a
parked car, and yelling that she did not “need to be in this world.”
S.F. further testified that he separated Thomas from the victim and
restrained him on the ground until the police arrived. When the
police arrived, they arrested Thomas. As they attempted to
1
handcuff him, Thomas resisted their efforts by flailing his arms. As
they attempted to put him in the patrol car, he resisted their efforts
by going limp.
¶4 At trial, the evidence centered on Thomas’s and the victim’s
conflicting testimony. The jury found Thomas guilty of third degree
assault, negligent bodily injury to an at-risk adult, and resisting
arrest.
II. Sufficient Evidence Supports Thomas’s Conviction for
Misdemeanor Resisting Arrest
¶5 Count 2 of the amended complaint and information alleged
that Thomas resisted arrest by using means that “created a
substantial risk of causing bodily injury to the peace officer or
another; in violation of section 18-8-103[(1)(b)], C.R.S. [2019].”
Thomas contends his conviction should be reversed because
(1) his conduct after he was handcuffed cannot properly be
considered to prove the offense of resisting arrest;
(2) the physical condition of the area in which he was
handcuffed and carried to the patrol car cannot properly
be considered to prove that he created a substantial risk
of causing bodily injury to the arresting officer; and
2
(3) there is insufficient evidence that his conduct created a
substantial risk of causing bodily injury to the arresting
officer.
We reject each of these arguments in turn and conclude that the
evidence was sufficient to convict Thomas of resisting arrest.
A. Standard of Review and Applicable Law
¶6 We review a challenge to the sufficiency of the evidence de
novo. People v. Perez, 2016 CO 12, ¶ 8. To determine whether the
evidence presented at trial was sufficient to support a guilty verdict,
we evaluate whether the evidence, when viewed as a whole and in
the light most favorable to the prosecution, was substantial and
sufficient to support a conclusion by a reasonable mind that the
defendant is guilty of the charge beyond a reasonable doubt. Id. at
¶ 24. In doing so, we give the prosecution “the benefit of every
reasonable inference that may be fairly drawn from the evidence.”
People v. Davis,
2012 COA 56, ¶ 12.
¶7 A person is guilty of resisting arrest when “he knowingly
prevents or attempts to prevent a peace officer, acting under color of
his official authority, from effecting an arrest” by, among other
3
things, using “means which create[] a substantial risk of causing
bodily injury to the peace officer or another.” § 18-8-103(1)(b).
B. The Evidence
¶8 One of the responding officers testified that he told Thomas he
was under arrest and instructed him to put his hands behind his
back. According to the officer, as he attempted to put the handcuffs
on, Thomas struggled and kept pulling his arms away. As that
officer tried to grab one of Thomas’s arms, a second officer tried to
grab the other arm.
¶9 The responding officer also testified that the area in which he
handcuffed Thomas was run down and had debris lying all over the
ground. He explained that it was a place where the police were
required to step over the debris. The officer testified that as he tried
to walk Thomas to the patrol car, Thomas went limp and the other
officer had to help carry Thomas approximately twenty feet to the
car. He testified that he watched his steps so he would not fall,
trying to walk Thomas back to the patrol car, stepping over debris,
and preventing Thomas from pulling away from him and fighting
him.
4
¶ 10 On cross-examination, Thomas admitted that he did not want
to be arrested and resisted “a little.” He also described the area in
which he was handcuffed and taken to the car as having “broken
glass, and TVs and microwaves, things like that” on the ground. He
admitted that if the officer had fallen on the ground, he could have
been injured. Thomas further agreed that “going limp when
somebody is trying to arrest you could easily cause them to fall
down[.]” He testified that because he “was shook up from being
jumped, and wanting to be with [his] dog,” he “wasn’t really
thinking about” the risks that his actions posed to the responding
officers.
C. Conduct After Handcuffing Properly Considered
¶ 11 Thomas contends that the arrest was completed when he was
handcuffed and that his conduct after that, including his resistance
to being transported to the patrol car, cannot properly be
considered to prove the offense of resisting arrest. We are not
persuaded.
¶ 12 To “effect an arrest, the peace officer must apply a level of
physical control over the person resisting the arrest so as to
5
reasonably ensure that the person does not leave.” People v.
Armstrong, 720 P.2d 165, 169 (Colo. 1986) (emphases added).
¶ 13 The police told Thomas he was under arrest, and, by placing
handcuffs on him, the police exercised a level of physical control
over him. At that point, a reasonable person in Thomas’s situation
“would necessarily believe that he was being placed under arrest,”
was not free to leave, and instead was required to submit to booking
and bonding procedures at the jail. People v. Tottenhoff,
691 P.2d
340, 344-45 (Colo. 1984).
¶ 14 So long as the police were present, they had a level of physical
control over Thomas that reasonably ensured that he did not leave.
When the police completed their duties at the scene and were
leaving the area, they sought to maintain physical control over
Thomas by putting him in the patrol car and transporting him to
the police station for booking and bonding procedures. However,
Thomas went limp, and in doing so, he resisted the arrest and
created a substantial risk that the officers would be injured.
¶ 15 We conclude that it was proper for the jury to consider the
evidence of Thomas’s conduct after he was handcuffed with regard
to the charge of resisting arrest. We also conclude that, when
6
viewed as a whole and in the light most favorable to the
prosecution, Perez, ¶ 8, there was substantial and sufficient
evidence to support a conclusion by a reasonable mind that by
going limp when the police took him to the patrol car, Thomas
knowingly attempted to prevent them from proceeding with the
arrest by, among other things, using means that created a
substantial risk of causing bodily injury to the officers. See
§ 18-8-103(1)(b).
¶ 16 We are not persuaded that a contrary conclusion is required
by People v. Thornton, 929 P.2d 729, 733 (Colo. 1996), and Wieder
v. People,
722 P.2d 396 (Colo. 1986), on which Thomas relies.
¶ 17 In Wieder, the defendant was found in a car that had struck a
power pole. As the police pulled him out of the car, the defendant
struggled and the police arrested him for drunk driving and
handcuffed him. They then led him to a patrol car and, as they
tried to put him in, he head-butted one officer and kneed the other
in the groin.
722 P.2d at 397.
¶ 18 Wieder was “convicted of second degree assault in violation of
section 18-3-203(1)(f), 8 C.R.S. (1978 and 1985 Supp.), which
makes unlawful an assault against a peace officer while ‘lawfully
7
confined or in custody.’” Id. The court rejected Wieder’s contention
that second degree assault while confined or in custody “is limited
to conduct arising in a detention or correctional facility context and
does not apply to a field arrest situation.”
Id. Citing Armstrong,
720 P.2d 165, the Wieder court said that “the definition of ‘custody’
necessarily differs from that of arrest for purposes of section 18-3-
203(1)(f) . . . , when the person subject to an arrest resists that
arrest.”
722 P.2d at 398.
¶ 19 Here, Thomas did not assault the officers as they took him to
the patrol car, he was not charged with or convicted of assault
under section 18-3-203(1)(f), and the definition of “custody” for
purposes of section 18-3-203(1)(f) is not in issue.
¶ 20 Thornton is similarly distinguishable. There, the defendant
was charged with felony escape under section 18-8-208(3), C.R.S.
2019. See
929 P.2d at 730. The defendant argued that he was
never “in custody or confinement” as required by the escape
statute. Relying on Armstrong, the Colorado Supreme Court
concluded that Thornton was “in custody” for purposes of the
escape statute because the police had established physical control
of him.
Id. at 734-35. The supreme court explained that “[p]hysical
8
control can be established by physical restraint or by the suspect’s
submission to control.” Id. at 734. And in Tottenhoff, the court
said that once physical control has been established, a suspect is
required to submit to booking and bonding procedures.
691 P.2d at
344-45.
¶ 21 The issue here is not whether Thomas was in custody for
purposes of section 18-8-208(3) or tried to escape, but, rather,
whether his resistance to being transported to the patrol car and
the police station for booking constituted resisting arrest. We
conclude that such conduct can constitute resisting arrest and that
it was proper for the court to submit the evidence to the jury for its
determination.
D. Physical Condition of Surrounding Area Properly Considered
¶ 22 We also reject Thomas’s contention that the physical condition
of the area in which he was handcuffed and carried to the patrol car
cannot properly be considered to prove that he created a
substantial risk of causing bodily injury to the officer. This
argument is contrary to logic and the plain meaning of the statute.
9
¶ 23 As pertinent here, a person commits resisting arrest when he
knowingly attempts to prevent a peace officer, acting under color of
his official authority, from effecting an arrest of him or another, by:
(a) Using or threatening to use physical force
or violence against the peace officer or another;
or
(b) Using any other means which creates a
substantial risk of causing bodily injury to the
peace officer or another.
§ 18-8-103(1).
¶ 24 We review the application of statutes de novo. Churchill v.
Univ. of Colo., 2012 CO 54, ¶ 68. When the statutory language is
clear, we apply its plain and ordinary meaning in a manner that
gives effect to the General Assembly’s intent, and we construe each
provision in the context of the statute “as a whole to give
‘consistent, harmonious and sensible effect to all [parts of the
statute].’” Bd. of Cty. Comm’rs v. Costilla Cty. Conservancy Dist.,
88
P.3d 1188, 1192-93 (Colo. 2004) (quoting People v. Luther,
58 P.3d
1013, 1015 (Colo. 2002)); accord Lobato v. Indus. Claim Appeals
Office,
105 P.3d 220, 223 (Colo. 2005). And, in so doing, we must
not apply the statute in a manner that renders any part of it
meaningless or absurd or in a manner that leads to an illogical or
10
absurd result. State v. Nieto, 993 P.2d 493, 501 (Colo. 2000); Kyle
W. Larson Enters., Inc. v. Allstate Ins. Co.,
2012 COA 160M, ¶ 9.
¶ 25 Subsections (1)(a) and (1)(b) of section 18-8-103 provide
distinct ways in which a person can commit resisting arrest.
Subsection (1)(a) is plainly limited to the use or threat of physical
force or violence against an arresting officer. Implicit in this
description is that the accused knowingly attempted to prevent
arrest by causing or threatening to cause bodily injury either by
physical contact or an instrument of force or violence. In contrast,
subsection (1)(b) explicitly pertains to means other than the use or
threat of physical force and requires only that the other means
create a substantial risk of bodily injury.
¶ 26 Considering the two subsections together, we perceive nothing
in the plain language of the statute dictating that “other means”
cannot include conduct that puts an officer at risk of injury by
falling or contacting nearby objects or conditions. Accordingly, we
conclude that the jury could properly consider evidence of the
physical surroundings in which Thomas was handcuffed and
transported to the patrol car.
11
E. Evidence Sufficient to Prove Resisting Arrest
¶ 27 Viewing the evidence in the light most favorable to the
prosecution, as we must, we conclude that it is sufficient “to
support a conclusion by a reasonable mind,” Perez, ¶ 24 (quoting
People v. Bennett, 183 Colo. 125, 130,
515 P.2d 466, 469 (1973)),
that Thomas resisted arrest by means other than the use or
threatened use of physical force and that those means created a
substantial risk of causing bodily injury to the arresting officer.
III. Counts 1 and 3 Do Not Merge
¶ 28 Thomas next contends that his conviction for criminally
negligent bodily injury to an at-risk adult (Count 3) should merge
into his conviction for third degree assault (Count 1) because the
former is a lesser included offense of the latter. We are not
persuaded.
A. Standard of Review
¶ 29 We review de novo whether an offense is a lesser included
offense of another. See People v. Torres, 224 P.3d 268, 275 (Colo.
App. 2009). Because Thomas did not assert merger in the trial
court, we review his contention for plain error.
12
B. Lesser Included Offenses
¶ 30 Under section 18-1-408(5)(a), C.R.S. 2019, an offense is
included in another when it “is established by proof of the same or
less than all the facts required to establish the commission of the
offense charged[.]” Our supreme court has consistently evaluated
whether one offense is a lesser included offense of another within
the meaning of section 18-1-408(5)(a) by applying a “statutory
elements” or “strict elements” test. Reyna-Abarca v. People, 2017
CO 15, ¶ 53. In Reyna-Abarca, the court held that “an offense is a
lesser included offense of another offense if the elements of the
lesser offense are a subset of the elements of the greater offense,
such that the lesser offense contains only elements that are also
included in the elements of the greater offense.” Id. at ¶ 64. The
court commented that this test “aligns directly with and gives force
to the language of section 18-1-408(5)(a), which requires that a
lesser included offense be established by proof of the same or less
than all of the facts required to establish the greater offense.” Id. at
¶ 62. “Thus, a subset can always be established by the same or
fewer than all of the facts of the set of which it is a part.” Id.
13
C. Thomas’s Convictions
¶ 31 On Count 3, Thomas was convicted of criminally negligent
bodily injury to an at-risk adult. 1 Thomas was also convicted, on
Count 1, of third degree assault, which required proof that he
“knowingly or recklessly cause[d] bodily injury to another
person . . . .” § 18-3-204(1)(a), C.R.S. 2019.
¶ 32 Thomas argues that Count 3 is a lesser included offense of
Count 1 because each of the essential elements of negligent bodily
injury to an at-risk adult is a subset of the essential elements of
knowingly or recklessly causing bodily injury to another person.
Based on the Reyna-Abarca court’s explanation and application of
the subset test, we conclude otherwise.
¶ 33 Proof that the victim was a person does not always prove that
the victim was at least seventy years old. Stated in the terms of
section 18-1-408(5)(a) and the Reyna-Abarca test, proof of injury to
an at-risk adult is not established by proof of the same or fewer
facts than are required to prove injury to another person. Thus,
1 “‘At-risk adult’ means any person who is seventy years of age or
older . . . .” § 18-6.5-102(2), (4.5), C.R.S. 2019.
14
Reyna-Abarca and section 18-1-408(5)(a) both indicate that Count 3
is not included in Count 1.
¶ 34 In contrast, Thomas’s argument is that Count 3 is a lesser
included offense of Count 1 “because an ‘at-risk adult’ is always
‘another person.’” This argument may have superficial appeal, but
it inverts the Reyna-Abarca test. Evidence that the victim was a
person does not prove that the victim was at least seventy years old.
Hence, injury to an at-risk adult is not always established by the
same or fewer than all the facts necessary to prove injury to another
person.
¶ 35 Accordingly, we conclude criminally negligent injury to an at-
risk adult is not included in the offense of knowing or reckless
injury to a person. The trial court did not err, let alone plainly err,
by not merging Thomas’s convictions for third degree assault and
negligent bodily injury to an at-risk adult.
IV. Thomas’s Prosecutorial Misconduct Claim Fails
¶ 36 Thomas next contends that allowing the prosecutor’s
comments during rebuttal closing argument constituted plain error
because the comments assumed he was guilty of the charged
crimes, and, thus, undermined his presumption of innocence. We
15
agree that the comments were improper but conclude that reversal
is not required because they did not rise to the level of plain error.
A. Relevant Facts
¶ 37 At trial, four witnesses testified to the events that transpired in
early March 2015.
¶ 38 The responding patrol officer interviewed the victim, S.F., and
Thomas. The officer testified that he noticed red marks around the
victim’s neck when he arrived on the scene. His photographs of her
injuries were admitted at trial. He also testified that Thomas had
cuts on his forehead.
¶ 39 Thomas, however, disputed the other witnesses’ testimony.
According to Thomas, after spending time with his son and taking a
nap, he woke up, noticed pry marks on his trailer door, and was
worried that something inside his trailer might be missing. He
pounded on his trailer’s cabinet doors and yelled before he
suddenly heard a knock at his door. Holding his dog in his arms,
he opened the door and saw S.F. and another unknown male. S.F.
immediately jumped on him, causing Thomas to drop his dog. S.F.
also scratched his face. The altercation moved to the yard outside
of Thomas’s trailer, where the victim was standing next to a parked
16
car. Thomas admitted that it is possible the victim was bumped
during the altercation, but he did not remember this.
¶ 40 During rebuttal closing argument, the prosecutor implored the
jury to evaluate each witness’s credibility in this “he said, she said”
case. He stated:
The Court tells you to look at a person’s
motive. . . . You get to consider their
demeanor. You get to consider the manner in
which they testified. And you also get to
consider how this case might affect them. And
Mr. Thomas is facing potential criminal
sanctions.
Mr. Thomas has every reason in the world to
get on that stand and tell you that it didn’t
happen. He has every reason in the world to
deny a crime that he wants to avoid a
conviction on.
¶ 41 Thomas now contends that these comments undermined his
presumption of innocence because they assumed he was guilty.
Rather than attacking Thomas’s credibility based on record
evidence, Thomas argues that the prosecutor made an
“impermissible, generalized” attack based on his status as a
criminal defendant.
17
B. Standard of Review and Applicable Law
¶ 42 The determination of whether a prosecutor’s statements in
closing argument constitute misconduct is within the trial court’s
discretion. See Domingo-Gomez v. People, 125 P.3d 1043, 1049
(Colo. 2005); People v. Strock,
252 P.3d 1148, 1152 (Colo. App.
2010). A trial court’s prosecutorial misconduct ruling “will not be
disturbed by an appellate court in the absence of a gross abuse of
discretion resulting in prejudice and a denial of justice.” People v.
Moody,
676 P.2d 691, 697 (Colo. 1984); see also Carrillo v. People,
974 P.2d 478, 485 (Colo. 1999) (equating “gross abuse of discretion”
with “abuse of discretion”).
¶ 43 When deciding a claim of prosecutorial misconduct, we engage
in a two-step analysis. Wend v. People,
235 P.3d 1089, 1096 (Colo.
2010). First, we determine whether the prosecutor’s challenged
conduct was improper based on the totality of the circumstances,
and, second, we determine whether any improper conduct warrants
reversal under the proper standard of review. Id.; see also Domingo-
Gomez,
125 P.3d at 1048.
¶ 44 “Factors to consider when determining the propriety of
statements include the language used, the context in which the
18
statements were made, and the strength of the evidence supporting
the conviction.” Domingo-Gomez, 125 P.3d at 1050; see also Harris
v. People,
888 P.2d 259, 266 (Colo. 1995) (“[T]he context in which
challenged prosecutorial remarks are made is significant, including
the nature of the alleged offenses and the asserted defenses, the
issues to be determined, the evidence in the case, and the point in
the proceedings at which the remarks were made.”).
¶ 45 “Where, as here, a defendant does not object at trial to the
now-challenged conduct, we will only reverse a conviction if the
conduct was improper and rises to the level of plain error.” People
v. Nardine,
2016 COA 85, ¶ 37. “To constitute plain error,
prosecutorial misconduct must be flagrant or glaringly or
tremendously improper, and it must so undermine the fundamental
fairness of the trial as to cast serious doubt on the reliability of the
judgment of conviction.” People v. Manyik,
2016 COA 42, ¶ 35
(citation omitted); see also Strock,
252 P.3d at 1153 (Whether
prosecutorial misconduct requires reversal depends on “the severity
and frequency of the misconduct, any curative measures taken by
the trial court to alleviate the misconduct, and the likelihood that
19
the misconduct constituted a material factor leading to the
defendant’s conviction.”).
C. Application
¶ 46 Because Thomas’s attorney did not object to the prosecutor’s
comments, we review this contention for plain error. In doing so,
we must first determine whether the trial court erred when it did
not intervene and instruct the jury to disregard the prosecutor’s
argument.
¶ 47 A prosecutor is permitted to comment on the evidence
admitted at trial and the reasonable inferences that can be drawn
from it. See People v. Samson, 2012 COA 167, ¶ 31. Among other
things, “[t]he partiality of a witness is subject to exploration at trial,
and is ‘always relevant as discrediting the witness and affecting the
weight of his testimony.’” Davis v. Alaska,
415 U.S. 308, 316 (1974)
(quoting 3A J. Wigmore, Evidence § 940 at 775 (Chadbourn rev.
1970)). Here, because Thomas testified, the jury could properly
consider his credibility and his interest in the outcome of the case
and the prosecutor could properly argue that it should do so. We
reject Thomas’s contention that the prosecutor’s argument
20
impermissibly undermined the presumption of innocence and
presumed he was guilty.
¶ 48 Accordingly, we conclude that the trial court did not err when
it did not intervene and instruct the jury to disregard the
prosecutor’s argument. Further, we conclude the prosecutor’s
argument did not undermine the fundamental fairness of the trial.
V. Thomas Was Properly Sentenced
Under the Habitual Criminal Statute
¶ 49 Thomas was convicted of third degree assault and negligent
bodily injury to an at-risk adult, each of which is a class 6 felony,
and three sentence enhancing habitual criminal counts.
¶ 50 At Thomas’s sentencing hearing, the court found that the
prosecution proved the following three prior felony convictions
beyond a reasonable doubt:
• a 1995 class 4 felony conviction in case number 95CR14
for theft;
• a January 2005 class 6 felony conviction in case number
05CR210 for possession of one gram or less of a schedule
II controlled substance on December 16, 2004, in
21
violation of section 18-18-405(1), (2.3)(a)(I), C.R.S. 2004;
and
• a June 2005 class 4 felony conviction in case number
05CR1936 for possession of more than one gram of a
schedule II controlled substance on April 7, 2005, in
violation of section 18-18-405(1), C.R.S. 2005.
¶ 51 Thomas contends that, under recent amendments to
Colorado’s habitual criminal statutes, the trial court lacked
authority to sentence him as a habitual criminal. In particular, he
asserts that
• under section 18-1.3-801(2)(a)(I), C.R.S. 2019, his
January 2005 and June 2005 drug convictions would
have been level 4 drug felonies; and
• under section 18-1.3-801(2)(b), level 4 drug felonies
cannot serve as predicate felonies.
A. Sufficiency of the Evidence
¶ 52 Thomas acknowledges that he did not seek a judgment of
acquittal or a judgment notwithstanding the verdict in the trial
court, but now argues that the prosecution’s evidence was not
sufficient to sustain his habitual criminal convictions. Challenges
22
to the sufficiency of the evidence may be raised for the first time on
appeal and are not subject to plain error review. See McCoy v.
People, 2019 CO 44, ¶ 27.
¶ 53 We review the sufficiency of evidence de novo. Strock,
252
P.3d at 1155. We must determine whether the relevant evidence,
when viewed most favorably to the prosecution, is substantial and
sufficient to prove that the defendant has been previously convicted
of the charged habitual criminal counts. Id.; see also People v.
Carrasco,
85 P.3d 580, 582-83 (Colo. App. 2003).
¶ 54 However, Thomas admits he previously pleaded guilty to a
class 6 felony for possession of a controlled substance and, in a
separate case, pleaded guilty to class 4 felony possession of a
controlled substance. In addition, the record contains ample proof
that he also had a prior conviction for a class 4 felony theft.
Therefore, we conclude that there was sufficient proof of Thomas’s
three prior convictions.
B. Application of the Habitual Criminal Sentencing Statute
¶ 55 Although Thomas frames the challenge to his habitual
criminal sentence in terms of the sufficiency of the evidence, a
closer look shows that he is also asserting that the trial court erred
23
when it applied the habitual criminal sentencing statute. Thomas
did not preserve that issue by objection in the trial court.
1. Standard of Review
¶ 56 When determining the proper application of a statute, our task
is to effectuate the legislature’s intent. McCoy, ¶ 37. We give the
statute’s words and phrases their plain and ordinary meanings in
accordance with common usage, apply rules of grammar, and
discern their particular meaning in the context of the statute as a
whole. We must ensure that our interpretation gives consistent,
harmonious, and sensible effect to all parts of the statute and avoid
constructions that would render any words or phrases meaningless
or lead to illogical or absurd results. Id. at ¶¶ 37-38.
¶ 57 The application of a statute is a question of law that we review
de novo. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189
(Colo. 2010). However, because Thomas raises this issue for the
first time on appeal, if we conclude the court applied the statute
erroneously, we apply the plain error standard and reverse only if
the error was obvious and “so undermined the fundamental
fairness of the trial itself . . . as to cast serious doubt on the
reliability of the judgment of conviction.” Hagos v. People,
2012 CO
24
63, ¶ 14 (quoting People v. Miller,
113 P.3d 743, 750 (Colo. 2005));
see also Maestas v. People,
2019 CO 45, ¶¶ 18-32 (Samour, J.,
concurring in the judgment only) (assertions of unpreserved
statutory construction should be reviewed under the de novo
standard of review and, if the trial court erred, plain error review
should be applied to determine whether the error requires reversal);
People v. Kadell,
2017 COA 124, ¶ 46 (J. Jones, J., concurring in
part and dissenting in part) (de novo review can be applied when
determining whether there was an error, and plain error review can
be applied when determining whether an error requires reversal).
2. Thomas’s January and June 2005 Convictions Are Felony
Convictions For Purposes of Section 18-1.3-801(3)
¶ 58 Section 18-1.3-801(2)(a)(I)(A) provides that anyone convicted of
any felony (a triggering offense) who has three previous felony
convictions (predicate offenses) arising from separate and distinct
criminal episodes must be sentenced to four times the maximum of
the presumptive range.
¶ 59 Thomas does not dispute that the convictions for third degree
assault and negligent injury to an at-risk adult in this case are
sufficient to trigger habitual criminal sentencing, but contends that
25
he did not have three predicate felonies. He argues that his
January and June 2005 drug convictions do not qualify as prior
felonies because, under section 18-1.3-801(3), “[n]o drug law
conviction shall be counted as a prior felony conviction under this
section unless such prior offense would be a felony if committed in
this state at the time of the commission of the new offense.” 2 We
are not persuaded.
¶ 60 Article XVIII, section 4, of the Colorado Constitution states:
“The term felony, wherever it may occur in this constitution, or the
laws of the state, shall be construed to mean any criminal offense
punishable by death or imprisonment in the penitentiary, and none
other.” In 2015, when Thomas committed the assault and negligent
bodily injury crimes for which he was sentenced in this case,
section 18-1.3-401.5(1), C.R.S. 2019 (enacted in 2013), stated: “For
purposes of this section, ‘felony’ means any felony or drug felony
defined in the state statutes.” In addition, in 2015, Thomas’s 2005
2 In Part V.B.4, we address Thomas’s assertions regarding
retrospective application of statutes. Here, we note that section 18-
1.3-801(3) was enacted on June 7, 2002, and, thus, predated
Thomas’s January 2005 conviction and his 2015 commission of the
offenses for which the court sentenced him. See Ch. 318, sec. 2,
§ 18-1.3-801(3), 2002 Colo. Sess. Laws 1428.
26
drug convictions would have been level 4 drug felonies punishable
by a maximum of one year in prison. See § 18-18-403.5(2)(a),
C.R.S. 2019. Accordingly, we conclude that at the time of
sentencing, Thomas’s January and June 2005 convictions were
prior felony convictions for purposes of sections 18-1.3-801(2)(a)(I)
and -801(3). Colo. Const. art. XVIII, § 4; § 18-1.3-401.5(1).
3. Thomas Has Three Previous Felony Convictions For Purposes
of Section 18-1.3-801(2)(a)(I)
¶ 61 Thomas argues that his “convictions for simple possession
would not have been ‘felonies’ but rather level 4 ‘drug felonies.’”
According to Thomas, section 18-1.3-801(2)(b)3 of “the habitual
sentencing statute precludes counting level 4 drug felonies as
3 Once again, in Part V.B.4, we address Thomas’s assertions
regarding retrospective application of statutes. Here, we note that
section 18-1.3-801(2)(a) was first enacted as section 18-1.3-801(2)
in June 2002 and replaced section 16-13-101(2) as part of the
relocation of Title 16 to Title 18. See Ch. 318, sec. 2, 2002 Colo.
Sess. Laws 1426-28 (effective Oct. 1, 2002). Since then, the statute
has changed several times, including in 2011 when it was divided
into subsections (2)(a) and (b). Subsection (2)(b) added new
language excluding class 6 felony drug possession convictions as
qualifying, triggering offenses for habitual criminal sentencing. See
Ch. 57, sec. 1, § 18-1.3-801(2)(b),
2011 Colo. Sess. Laws 151-52.
And in 2013, that subsection was amended to exclude level 4 drug
felonies as qualifying, triggering offenses. See Ch. 333, sec. 36,
§ 18-1.3-801(2)(b),
2013 Colo. Sess. Laws 1927-28.
27
predicate offenses when the defendant possessed a small quantity
of drugs.” Again, we are not persuaded.
¶ 62 We have already concluded that level 4 drug felonies
constitute felonies for purposes of section 18-1.3-801(3).
¶ 63 The meaning of subsections 801(2)(a)(I) and 801(2)(a)(I)(A) is
plain. They state that, except as provided in paragraphs (2)(b) and
(5) of section 18-1.3-801,
every person convicted in this state of any
felony, who has been three times previously
convicted, upon charges separately brought
and tried, and arising out of separate and
distinct criminal episodes, either in this state
or elsewhere, of a felony or, under the laws of
any other state, the United States, or any
territory subject to the jurisdiction of the
United States, of a crime which, if committed
within this state, would be a felony, shall be
adjudged an habitual criminal and shall be
punished [as stated in subsections
801(2)(a)(I)(A) and (B)].
¶ 64 The referenced paragraph (b) [subsection 801(2)(b)] states that
subsection 801(2)(a)(I)
shall not apply to . . . a conviction for a level 4
drug felony for attempt or conspiracy to
commit unlawful possession of a controlled
substance . . . if the amount of the . . .
controlled substance possessed is not more
than four grams or not more than two grams of
methamphetamine, heroin, cathinones, or
28
ketamine or not more than four milligrams of
flunitrazepam, even if the person has been
previously convicted of three or more
qualifying felony convictions.
¶ 65 Giving the words of these provisions their plain and ordinary
meanings and reading them in context, we conclude that a level 4
drug felony cannot be a triggering offense for habitual criminal
sentencing under section 18-1.3-801(2)(a)(I). This section is specific
to sentencing. It plainly tells courts that are sentencing defendants
for level 4 drug felonies that they may not impose habitual criminal
sentences in such cases “even if the person has been previously
convicted of three or more [felony convictions arising out of separate
and distinct criminal episodes].” § 18-1.3-801(2)(b). Thus,
subsection 801(2)(b) eliminates level 4 drug felonies as triggering
offenses for habitual criminal sentencing, but it does not change the
nature of qualifying felony convictions as defined in subsection
801(2)(a). Therefore, we conclude that subsection 801(2)(b) does
not prohibit courts from considering level 4 drug felony convictions
as predicate felony convictions.
¶ 66 In this case, Thomas’s triggering felony convictions were for
third degree assault and negligent injury of an at-risk adult, not for
29
drug possession. Consequently, the trial court did not err when it
concluded that Thomas had three previous felony convictions and
that those convictions were predicate felony convictions.
4. Wells-Yates v. People
¶ 67 As supplemental authority, Thomas cited Wells-Yates v.
People, 2019 CO 90M. We conclude that this decision does not
require a different result here.
¶ 68 In Wells-Yates, the supreme court addressed (1) abbreviated
proportionality reviews of habitual criminal sentences; (2)
determinations of the gravity or seriousness of triggering and
predicate offenses; (3) the gravity and seriousness of narcotic
offenses generally; and (4) the gravity and seriousness of narcotic
offenses of possession and possession with intent to sell, distribute,
dispense, or manufacture. Wells-Yates, ¶ 76. None of these issues
are present in this case.
¶ 69 Thomas did not request a proportionality review in the trial
court, nor has he done so in his briefs on appeal. Instead, in a
citation of supplemental authority, he has referred us to paragraphs
42, 43, and 59 of the Wells-Yates decision. In the referenced
paragraphs, the supreme court focused on abbreviated
30
proportionality reviews, extraordinary risk crimes, and
determinations about the gravity and seriousness of crimes, none of
which are at issue here.
¶ 70 In a section captioned “Should Relevant Statutory
Amendments Enacted After the Dates of the Triggering and
Predicate Offenses Be Considered During an Abbreviated
Proportionality Review?[,]” the court concluded that when
determining the relative gravity and seriousness of the offense
during an abbreviated proportionality review, “the trial court should
consider relevant legislative amendments enacted after the date of
the offense, even if the amendments do not apply retroactively.” Id.
at ¶ 45. The court also concluded that section of the decision by
stating that “legislative enactments that take effect after the date of
the offense and have no retroactive application may nevertheless be
relevant to evaluate the gravity or seriousness of the offense.” Id. at
¶ 52. Our analysis here has addressed the retroactive applications
of section 18-1.3-801(2) and (3) and section 18-1.3-401.5(1) to
Thomas’s 2005 drug offenses and the determination of a sentence
for his 2015 offenses.
31
¶ 71 In the referenced paragraphs, we find only one sentence that
pertains to the statutes and issues Thomas has presented on
appeal. When determining whether an abbreviated proportionality
review should include consideration of statutory amendments
enacted after triggering and predicate offenses, the court said:
[S]ince Wells-Yates’s two predicate offenses of
possession of 2 grams or less of
methamphetamine, the legislature has
reclassified that crime from a class 4 felony
that is eligible to be both a triggering offense
and a predicate offense for habitual criminal
purposes to a level 4 drug felony that carries
less severe penalties and is not so eligible.”
Wells-Yates, ¶ 43 (emphases added).
¶ 72 The court made this statement in the context of whether
relevant statutory amendments enacted after the dates of the
triggering and predicate offenses should be considered during an
abbreviated proportionality review. The statement that level 4
felony offenses are “not so eligible” is brief, ambiguous, and
conclusory. Importantly, the decision does not include any analysis
of the wording of section 18-1.3-801(2)(b), and the statement is not
necessary to the ultimate holding in the case. See Main Electric,
Ltd. v. Printz Servs. Corp., 980 P.2d 522, 526 (Colo. 1999)
32
(conclusory statement that did not analyze contract terms was
dictum); United States v. Jesse, 744 P.2d 491, 502-03 (Colo. 1987)
(summary of holdings at the end of a decision controlled and
ambiguous statement in a footnote did not); cf. People v. Morehead,
2019 CO 48, ¶ 10 (rulings logically necessary to its holding become
the law of the case). Accordingly, it was dictum and does not
control our analysis.
VI. Colorado’s Habitual Criminal Sentencing Statutes Are
Constitutional
¶ 73 Finally, Thomas argues, for the first time on appeal, that
Colorado’s habitual criminal statutes, sections 18-1.3-801 to -803,
C.R.S. 2019, are unconstitutional because they allow a judge,
rather than a jury, to make necessary findings about whether a
defendant was previously convicted. Thomas asserts that this
procedure deprived him of his Sixth Amendment right to trial by
jury.
¶ 74 Thomas recognizes that his argument has been rejected by
numerous appellate decisions. See, e.g., People v. Huber, 139 P.3d
628, 631 (Colo. 2006); People v. Davis,
2017 COA 40M, ¶¶ 35-38.
He asserts that these cases were wrongly decided and should not be
33
followed. We disagree and see no reason to depart from these
decisions.
VII. Conclusion
¶ 75 The judgment and sentence are affirmed.
JUDGE TAUBMAN and JUDGE GROVE concur.
34
