2018 COA 12
Colo. Ct. App.2018Background
- In 2007 Trujillo built a home using his funds and later a $255,000 construction loan from a bank; after completion he stopped payments and foreclosure began in 2010.
- Before the foreclosure sale Trujillo removed or destroyed substantial fixtures and items from the house, reducing its appraised value from an estimated $320,000 (if repaired) to $150,000.
- He was charged with defrauding a secured creditor (acquitted), theft of $20,000 or more (convicted), and criminal mischief of $20,000 or more (convicted); restitution and probation were imposed.
- Defense theory: Trujillo believed removed items were his property; defense tendered multiple property-law jury instructions, some of which the court declined to give verbatim but provided a theory-of-defense instruction and allowed argument on the property-law points.
- Trial court admitted limited testimony referencing a prior foreclosure on other Trujillo property; prosecution made rebuttal remarks that denigrated defense counsel; court imposed an indeterminate probation term (mittimus: seven years to life) and awarded prosecution costs of $768.70.
- On appeal the court affirmed convictions, rejected challenges to instructions, evidence, and most prosecutorial remarks; it held indeterminate probation lawful, vacated the costs award for lack of allocation findings, and held the 2013 theft reclassification applied so theft must be reclassified as a class 4 felony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instructions — theory of defense | Court properly limited redundant/incorrect tenders; gave adequate instruction and allowed argument | Tendered property-law instructions were essential to convey defense theory | No abuse of discretion; court’s theory instruction plus counsel argument adequately informed jury |
| Admission of prior foreclosure evidence | Evidence was relevant to motive/intent and not unfairly prejudicial | Testimony suggested other bad acts/propensity; barred by CRE 404(b)/403 | Admissible under CRE 401; probative of intent and not substantially outweighed by prejudice |
| Prosecutorial misconduct (screening, comment on silence, denigration) | Questions about who files charges were legitimate; rebuttal could point to weak evidence | Comments improperly denigrated counsel and arguably referenced silence | Questioning about charging process and comments on silence not reversible; remarks denigrating counsel improper but harmless given strong evidence |
| Indeterminate probation authority | State: statute permits probation "for such period" and may exceed maximum incarceration; Jenkins supports indeterminate terms | Trujillo: court exceeded statutory authority by imposing indefinite probation | Court follows Jenkins — section 18-1.3-202(1) authorizes indeterminate probation for felonies; sentence lawful |
| Assessment of costs of prosecution | People sought full costs; court may assess reasonable costs | Trujillo: some costs attributable to acquitted count; court must allocate if practicable | Award vacated and remanded — trial court must determine whether allocation to acquitted charge is practicable and make findings |
| Retroactive application of 2013 theft reclassification | People: amendment silent on retroactivity; not for direct appeal? | Trujillo: entitled to benefit where conviction and sentence occurred after amendment; Stellabotte supports retroactivity | Court follows Stellabotte and precedent allowing amendatory benefit where conviction/sentence postdate amendment; theft reclassified as class 4 felony; sentence vacated in part |
Key Cases Cited
- People v. Jenkins, 305 P.3d 420 (Colo. App. 2013) (statute authorizes indeterminate probation terms)
- Riley v. People, 828 P.2d 254 (Colo. 1992) (defendant not entitled to ameliorative amendments when legislature clearly limited retroactivity)
- Crider v. People, 186 P.3d 39 (Colo. 2008) (harmless-error standard for nonconstitutional prosecutorial misconduct)
- Nunez v. People, 841 P.2d 261 (Colo. 1992) (obligation to give theory-of-defense instruction when supported by evidence)
- People v. Palomo, 272 P.3d 1106 (Colo. App. 2011) (allocation of prosecution costs when defendant convicted of fewer than all counts)