People v. Lahr, 2013 WL 1760825

Defendant Jacob Lahr was convicted by jury of aggravated robbery, menacing, aggravated motor vehicle theft, possession of a controlled substance, and possession of a weapon by a previous offender (POWPO); multiple cases were joined for trial with bifurcation of POWPO.
Evidence showed Lahr used a black-handled gun during Motel 6 and Fascinations robberies, and stole an SUV with related items later recovered with his DNA, hair, and fingerprints connecting him to the crimes.
The People introduced Fascinations robbery evidence under CRE 404(b) as res gestae, identity, and common-plan evidence; the court admitted it under the Spoto four-part test.
After the trial, the jury found Lahr guilty on the charged offenses; POWPO was tried separately and the jury convicted on that count as well; he was adjudicated a habitual criminal and sentenced to two concurrent 48-year terms.
Lahr challenged the admission of Fascinations evidence and the trial’s handling of the POWPO charge, while the People cross-appealed the sentencing range for aggravated robbery.
The appellate court affirmed the convictions, vacated the aggravated robbery portion of the sentence, and remanded for resentencing consistent with its ruling on the habitual-criminal sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Fascinations robbery evidence was properly admitted under Spoto (CRE 404(b)).	People argue the Fascinations robbery was logically relevant to identity and plan.	Lahr contends the similarities were insufficient to prove identity beyond a reasonable doubt.	Yes; district court did not abuse discretion admitting the evidence.
Whether denial of a new trial was an abuse of discretion due to a fleeting, ambiguous reference to a ‘previous offender’ on a form.	People contend no substantial prejudice occurred.	Lahr argues the reference alerted jurors to his prior record.	No abuse; the reference was fleeting and remedied by instruction, or would have been remedied.
Whether the aggravated robbery sentence was illegal due to how habitual-criminal enhancement was applied to the modified presumptive range for an extraordinary-risk crime.	People assert the maximum presumptive range was properly modified before applying the habitual multiplier.	Lahr contends the habitual enhancement should apply to the modified range; otherwise illegal.	Aggravated robbery sentence is illegal as applied; must be resentenced after proper modification of the presumptive range before applying habitual enhancement.

People v. Spoto, 795 P.2d 1314 (Colo.1990) (four-part test for admission of other act evidence)
People v. Rath, 44 P.3d 1033 (Colo.2002) (similarity required for modus operandi identity evidence)
People v. Garner, 806 P.2d 366 (Colo.1991) (distinctive features may establish identity across offenses)
People v. Vigil, 718 P.2d 496 (Colo.1986) (ambiguous, fleeting references to prior acts often not prejudicial)
People v. Abbott, 690 P.2d 1263 (Colo.1984) (non-prejudicial descriptive references to criminality do not automatically require new trial)
Lutwak v. United States, 343 U.S. 604 (1952) (drastic remedies not warranted for minor prejudicial error)
People v. Dunaway, 88 P.3d 619 (Colo.2004) (scope of harmless-error and fairness considerations)
People v. Perry, 981 P.2d 667 (Colo.App.1999) (habits of habitual-criminal sentencing guidance)