2016 COA 76
Colo. Ct. App.2016Background
- D.M. observed a man masturbating near her home, reported it to police, and later saw the man again; defendant Donald Jon Riley was arrested.
- While being transported in the back of a patrol car, a deputy heard clanking; she opened the door, asked Riley to lift his shirt, he instead reached his pants, and the deputy briefly exposed "flesh" in the crotch area.
- Riley was tried and convicted by a jury of indecent exposure (elevated to a felony based on two prior indecent-exposure convictions) and two counts of public indecency.
- Defense counsel requested that public indecency be submitted as a lesser non-included offense; the court granted the request over the prosecutor's objection.
- After closing arguments the jury retired; the trial record later shows the alternate juror was brought into the courtroom, instructed, and excused — the timing leaves unresolved whether the alternate was present during deliberations.
- Riley appealed raising challenges to sufficiency of evidence (public indecency as to officer), omission of a statutory definition instruction, prosecutor statements in closing, presence of alternate during deliberations, and the judge-found sentence enhancement for priors.
Issues
| Issue | People (Plaintiff) Argument | Riley (Defendant) Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for public indecency (officer victim) | Evidence showed genitals were exposed in patrol car and could be viewed; conviction supported. | Evidence insufficient because back of patrol car not a public place/not reasonably viewable; defendant did not knowingly expose himself. | Rejected on appeal under invited-error doctrine: defense requested submission of public indecency as a lesser non-included offense, precluding sufficiency challenge. |
| Failure to instruct on statutory definition of "public place" | No objection; the instruction set was adequate. | Court erred by not giving statutory definition. | Waived: defense expressly declined additional definitional instruction; no reversible error. |
| Prosecutorial remarks that victim "told the truth" in closing | Statements were proper credibility argument and permissible inference from evidence. | Prosecutor improperly expressed personal opinion on witness credibility. | No plain error: comments fell within permissible credibility argument. |
| Presence of alternate juror during deliberations | People assert insufficient time passed for deliberations; any presence was harmless. | Alternate may have been present during deliberations; presence requires new trial. | Remanded for evidentiary hearing to determine whether alternate was present; if so, grant new trial; if not, reinstate conviction. |
| Sentence enhancement based on prior convictions (jury right) | Prior convictions are a sentence enhancer properly found by judge by preponderance where prior convictions are proved. | Sixth Amendment requires jury to find priors beyond reasonable doubt before elevating offense. | Held no error: prior-conviction enhancement treated as sentencing finding (court to decide by preponderance) consistent with precedent. |
Key Cases Cited
- Zapata v. People, 779 P.2d 1307 (Colo. 1989) (invited error: cannot complain on appeal about error a party invited)
- Medrano-Bustamante v. People, 412 P.3d 581 (Colo. App. 2013) (lesser non-included offense instructions are strategic and may preclude contrary appellate claims)
- Arko v. People, 183 P.3d 555 (Colo. 2008) (defendant retains right to seek acquittal despite requesting lesser-offense instruction)
- Boulies v. People, 690 P.2d 1253 (Colo. 1984) (presence of nonjuror/alternate during deliberations is improper and may require new trial)
- Schreiber v. People, 226 P.3d 1221 (Colo. App. 2009) (prior conviction-based sentencing enhancements are for the court to decide by a preponderance)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (facts increasing maximum penalty generally must be treated as elements triggering Sixth Amendment analysis)