People v. Becker
2014 COA 36
Colo. Ct. App.2014Background
- Defendant Gib Dale Becker was charged with two counts of child abuse labeled as “second or subsequent offense” under Colo. Rev. Stat. § 18-6-401(1)(a), (7)(b)(I)-(II), (7)(e). The charging papers explicitly stated he had a prior child-abuse conviction.
- Before trial Becker sought exclusion of any evidence or reference to his prior child-abuse conviction and offered to stipulate to its existence; the court excluded facts underlying the prior conviction but allowed the jury to learn of the conviction and accepted the stipulation to be disclosed to the jury.
- The court, prosecutor, jury instructions, verdict forms, and judgment repeatedly informed the jury that the offenses were “second or subsequent” and that Becker had a prior child-abuse conviction.
- The jury convicted Becker on both counts and the court entered judgments listing the offenses as second/subsequent offenses; the judgments did not indicate the prior conviction operated solely as a sentencing enhancer.
- Becker appealed arguing the court erred in permitting the jury to learn of the prior conviction because the prior conviction under § 18-6-401(7)(e) is a sentence enhancer (for sentencing exposure) and not an element of the substantive offenses.
Issues
| Issue | People’s Argument | Becker’s Argument | Held |
|---|---|---|---|
| Whether a prior child-abuse conviction under § 18-6-401(7)(e) is an element of the charged crimes or a sentence enhancer | The prosecution treated the prior conviction as part of the substantive charge and presented it to the jury | The prior conviction is only a sentence enhancer; the jury should not hear it before deciding guilt on the substantive offenses | The appellate court held the prior conviction is a sentence enhancer, not an element; jury should have been withheld from learning of it until after verdicts on the substantive offenses |
| Whether the trial court erred by informing the jury of Becker’s stipulation to the prior conviction | Court and People relied on the stipulation and treated it as jury-admissible | Becker offered to stipulate to the court (not the jury) and repeatedly sought exclusion of any reference to the prior conviction | Court erred in allowing the jury to learn of the stipulation and prior conviction; error required reversal |
| Whether Becker invited the error by offering the stipulation or by failing to object | People argued the stipulation and a later “no objection” statement invited the court’s conduct | Becker argued he affirmatively moved to exclude any reference and did not invite disclosure to the jury | Court rejected People’s invited-error argument and found Becker did not invite the error |
| Whether Becker preserved the issue for appeal | People argued Becker failed to clearly object or cite Apprendi to preserve the claim | Becker contended he repeatedly objected pretrial and at trial to any references to the prior conviction | Court found Becker’s pretrial and trial objections preserved the claim; Apprendi citation not required |
Key Cases Cited
- People v. Schreiber, 226 P.3d 1221 (Colo. App. 2009) (court decides prior-conviction sentence enhancers; such matters are for the judge, not the jury)
- People v. Cross, 114 P.3d 1 (Colo. App. 2004) (prior convictions that are only sentence enhancers must be withheld from the jury until after disposition of the substantive count)
- Heinze v. People, 253 P.2d 596 (Colo. 1953) (admission of prior convictions used only for sentencing can be reversible error because of unfair prejudice to guilt determination)
- Armintrout v. People, 864 P.2d 576 (Colo. 1998) (statutory provision is not an element if a defendant may be convicted of the underlying offense without proof of that provision)
- People v. Melendez, 102 P.3d 315 (Colo. 2004) (issue preservation requires adequate opportunity for the trial court to rule; objections here preserved the issue)
- People v. Owens, 97 P.3d 227 (Colo. App. 2004) (prejudicial error can be exacerbated by prosecutor comments in closing argument)
- Prell v. Gormley, 38 P.2d 775 (Colo. 1934) (party may aggravate prejudice by commenting on erroneously admitted evidence)
Disposition
- The judgment of conviction was reversed and the case remanded for a new trial because the trial court improperly allowed the jury to learn of a prior child-abuse conviction that functions only as a sentencing enhancer.