2020 COA 78
Colo. Ct. App.2020Background
- Defendant Dustin Sims was convicted at a second jury trial of eluding or attempting to elude a police officer and aggravated driving after revocation prohibited (aggravated DARP); on direct appeal an earlier retrial was ordered due to improper police opinion testimony.
- Facts: after an altercation at a rodeo Sims went to a police station enraged; officers learned his license was revoked, then attempted a traffic stop when they saw him leave a parking space.
- Sims did not stop; marked patrol cars activated lights and sirens and pursued him; he drove within the speed limit for roughly 7.8 miles, fled the initial pursuit, then was pursued and stopped after a precision immobilization technique by a sheriff’s sergeant.
- Sims testified he did not see or hear the police because of loud music and an earbud.
- At retrial the jury convicted on both counts; on appeal Sims argued (1) insufficient evidence for eluding because he took no evasive maneuvers and (2) the eluding conviction should merge into aggravated DARP.
- The Court of Appeals affirmed aggravated DARP, held the evidence was sufficient to support eluding, but vacated the separate eluding conviction and ordered it merged into the aggravated DARP conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for eluding/attempting to elude | The evidence (activated lights/sirens, prolonged multi-mile pursuit, willful failure to stop) supports a reasonable juror finding of willful eluding. | "Eluding" requires evasive acts (e.g., speeding, turning off lights, swerving); merely continuing to drive lawfully is insufficient. | Court rejects defendant’s narrow reading; "elude" can mean "avoid/escape/not be caught;" continuing to drive for miles while pursued can be willful eluding. |
| Merger / double jeopardy between eluding and aggravated DARP | Argued multiple, distinct acts of eluding occurred (initial officers then sergeant), so convictions need not merge. | Eluding is a lesser included offense of aggravated DARP and must merge into the greater offense. | Court holds eluding is a statutory lesser included offense of aggravated DARP; because prosecution tried one continuous act and did not distinguish separate incidents, the eluding conviction must merge into aggravated DARP. |
Key Cases Cited
- People v. Espinoza, 195 P.3d 1122 (Colo. App. 2008) (interpreting eluding statute and holding flight can support eluding conviction)
- People v. Walden, 224 P.3d 369 (Colo. App. 2009) (jury presumed to apply common meanings when instructions omit definitions)
- People v. Holt, 266 P.3d 442 (Colo. App. 2011) (juror improperly consulted a dictionary)
- Gooch v. United States, 297 U.S. 124 (U.S. 1936) (broad statutory terms may negate narrow application of ejusdem generis)
- S.A.S. v. Dist. Court, 623 P.2d 58 (Colo. 1981) (ejusdem generis should not frustrate statutory scheme objectives)
- People v. Abiodun, 111 P.3d 462 (Colo. 2005) (charging multiple counts requires specificity to distinguish acts)