Peo v. Kondratishin

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<div>22CA0705 Peo v Kondratishin 10-03-2024 </div>
<div> </div>
<div>COLORADO COURT OF APPEALS </div>
<div> </div>
<div> </div>
<div>Court of Appeals No. 22CA0705 </div>
<div>Adams County District Court No. 19CR5043 </div>
<div>Honorable <span>Jeffrey Smith, Judge</span> </div>
<div> </div>
<div> </div>
<div>The People of the State of Colorado, </div>
<div> </div>
<div>Plaintiff-Appellee, </div>
<div> </div>
<div>v. </div>
<div> </div>
<div>Sergey Victor Kondratishin, </div>
<div> </div>
<div>Defendant-Appellant. </div>
<div> </div>
<div> </div>
<div>JUDGMENT AFFIRMED<span> </span>
</div>
<div> </div>
<div>Division I </div>
<div>Opinion by JUDGE <span>J. JONES</span> </div>
<div>Lipinsky<span> and Sullivan, JJ., concur </span>
</div>
<div> </div>
<div>NOT PUBLISHED PURSUANT TO C.A.R. 35(e) </div>
<div>Announced October 3, 2024 </div>
<div> </div>
<div> </div>
<div>Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General </div>
<div>Fellow, Denver, Colorado, for Plaintiff<span>-Appellee </span>
</div>
<div> </div>
<div>Megan A. Ring, Colorado State Public Defender, <span>Kelly A. Corcoran</span>, Deputy </div>
<div>State Public Defender, Denver, Colorado, for Defendant-Appellant </div>
<div> </div>
</div></div>
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<div>1 </div>
<div> </div>
<div>¶ 1<span> </span><span>Defendant, Sergey Victor Kondratishin, appeals the judgment<span></span> </span>
</div>
<div>of conviction entered on a jury verdict finding him guilty <span></span>of driving </div>
<div>while ability impaired with three or more prior similar conviction<span></span>s, a </div>
<div>class 4 felony.  <span>See</span> § 42-4-1301(1)(b), C.R.S. 2024.  We aff<span></span>irm. </div>
<div>I.<span> <span>Background </span></span>
</div>
<div>¶ 2<span> </span><span>A police officer responded to a report of a suspicious vehicle.  </span>
</div>
<div>When she arrived, she saw a black BMW with a single occupant <span>—</span> </div>
<div>Kondratishin <span>in</span> <span>the driver’s seat</span>.  As the officer got out of her pat<span></span>rol </div>
<div>car, Kondratishin got out of the BMW, on the driver’s si<span></span>de.  The </div>
<div>BMW was parked on the street near the house in which he lived </div>
<div>with his parents.  Kondratishin leaned against the car.  The officer </div>
<div>observed that he had bloodshot, watery eyes; slurred speech; an<span></span>d </div>
<div>smelled strongly of alcohol.  Looking inside the car, the officer saw a </div>
<div>six-pack containing four empty beer bottles on the front passenge<span></span>r </div>
<div>side floorboard and a malt liquor bottle in the center console, next </div>
<div>to the car keys.  Based on these observations, what Kondratishin </div>
<div>told the officer (discussed in more detail below), and <span></span>what the </div>
<div>neighbor who had called police had reported, the officer asked </div>
<div>Kondratishin to perform voluntary roadside maneuvers.  He </div>
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<div>2 </div>
<div> </div>
<div>refused.  He then equivocated, saying he would and then saying </div>
<div>again that <span>he wouldn’t.  At that point, </span>the officer arrested him. </div>
<div>¶ 3<span> </span><span>The People charged Kondratishin with one count of driving </span>
</div>
<div>under the influence with three or more prior similar convictions.  </div>
<div>See<span> § 42-4-1301(1)(a).  A jury acquitted him of that charge b<span></span>ut </span>
</div>
<div>found him guilty of the analogous driving while ability impaired </div>
<div>offense. </div>
<div>II.<span> <span>Discussion </span></span>
</div>
<div>¶ 4<span> </span><span>Kondratishin contends on appeal that (1) insufficient evidence </span>
</div>
<div>supports the conviction; (2) the district court judge violated his <span></span>duty </div>
<div>of impartiality; (3) the court made various errors in admitting </div>
<div>evidence introduced by the prosecution; and (4) even if<span></span> none of </div>
<div>these claimed errors require reversal independently, they do when </div>
<div>considered cumulatively.  We address and reject these contention<span></span>s </div>
<div>in turn. </div>
<div>A.<span> <span>Sufficiency of the Evidence </span></span>
</div>
<div>¶ 5<span> </span><span>Kondratishin argues that the only evidence that he drank </span>
</div>
<div>alcoholic beverages <span>before</span> he drove his car was his statement to t<span></span>he </div>
<div>police officer on the scene, which wasn’t trustworthy <span></span>enough for the </div>
<div>jury to credit.  We don’t agree.<span> </span>
</div>
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<div>3 </div>
<div> </div>
<div>1.<span> <span>Additional Background </span></span>
</div>
<div>¶ 6<span> </span><span>A roommate of the neighbor who had called the police testified </span>
</div>
<div>that, when he returned home from work at about 6:30 p.m., a black </div>
<div>BMW was parked on the street in the space in which <span></span>he usually </div>
<div>parked.  A few minutes later, the roommates went outside to chec<span></span>k </div>
<div>on the car<span>.  T</span>he driver started the car, drove it a little way down the </div>
<div>street, and reparked <span>it</span>.  Thinking this was suspicious, one of the </div>
<div>roommates called the police. </div>
<div>¶ 7<span> </span><span>Officer Priscilla Duke arrived shortly after receiving a dispatch </span>
</div>
<div>call at 7:22 p.m.  After Kondratishin got out of the BMW, Officer </div>
<div>Duke saw that his eyes were glassy, bloodshot, and wat<span></span>ery.  </div>
<div>According to Officer Duke, h<span>e smelled “extremely stron</span><span>g</span><span>[ly]” of </span>
</div>
<div>alcohol. </div>
<div>¶ 8<span> </span><span>Officer Duke told Kondratishin she was there responding to a </span>
</div>
<div>report “about a vehicle b<span>eing in the area.</span><span>”<span>  <span>He responded that he </span></span></span>
</div>
<div>had a bad day of work, and, after he parked, he was talking to </div>
<div>someone on his phone when the neighbors came home.  He di<span></span>dn’t </div>
<div>want to be rude (by parking in the space <span>in front of the neighbors’ </span>
</div>
<div>house), so he drove his car down the street and reparked it in f<span></span>ront </div>
</div></div>
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<div>4 </div>
<div> </div>
<div>of his house<span>.  </span>(At this point, another officer arrived at the scene.) <span></span> </div>
<div>Officer Duke then asked Kondratishin whether he had had anything </div>
<div>to drink.  He said he drank five beers.  Kondratishin’s arg<span></span>ument on </div>
<div>appeal focuses on the following testimony by Officer Duke: </div>
<div>I asked him when he had those beers and he </div>
<div>told me that he returned home.  He lives with </div>
<div>his parents and his parents don’t like him </div>
<div>drinking at home.  They were not home.  He </div>
<div>went to his room and drank five beers.  When </div>
<div>he came out of his room, his parents were </div>
<div>home. </div>
<div>At that point, he went back and got the six-</div>
<div>pack and took it to his vehicle.  At that point, </div>
<div>he stated that the residence he was parked in </div>
<div>front of <span>—</span> <span>the parties came home and he didn’t </span>
</div>
<div>want to be rude so he moved the vehicle down </div>
<div>the street. </div>
<div>¶ 9<span> <span>Kondratishin told Officer Duke he wasn’t drinking in his <span></span>car.  </span></span>
</div>
<div>He also told her he had “four DUIs in the past.”  Officer Duke then </div>
<div>looked into the car and saw the six-pack container of beer </div>
<div>containing four empty bottles, one unopened bottle, and an em<span></span>pty </div>
<div>spot.  She also saw an empty malt liquor bottle between the center </div>
<div>console and the passenger seat.  The car keys were next to t<span></span>hat </div>
<div>bottle. </div>
</div></div>
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<div>5 </div>
<div> </div>
<div>¶ 10<span> </span><span>Officer Duke then asked Kondratishin to perform voluntary </span>
</div>
<div>roadside maneuvers.  He asked “why he would need to take any </div>
<div>tests because he did not drive.”  (Officer Duke testified t<span></span>hat </div>
<div>Kondratishin had just told her he did drive.)  After Officer D<span></span>uke </div>
<div>again told Kondratishin he didn’t have to perform the man<span>euvers, </span>
</div>
<div>he said again that he “wasn’t drinking in the car and did not driv<span></span>e.”  </div>
<div>He became argumentative.  Officer Duke told him to turn a<span></span>round </div>
<div>(she was going to arrest him), and as he did so, he said he wo<span></span>uld </div>
<div>perform the maneuvers.  He then turned back toward the <span></span>officer, </div>
<div>started arguing with her again, and “asked why he had t<span></span>o do the </div>
<div>test if he wasn’t driving.”  Officer Duke took that as a refusal t<span></span>o </div>
<div>perform the maneuvers and arrested him. </div>
<div>¶ 11<span> </span><span>After Officer Duke put Kondratishin in the back of her patrol </span>
</div>
<div>car, she told him about the express<span>ed</span> consent law and aske<span></span>d him </div>
<div>whether he wanted to take a breath test or a blood te<span></span>st.  He again </div>
<div>said he didn’t see why he needed to take a test and said that <span>once </span>
</div>
<div>more after Officer Duke explained the consequences to <span></span>him.  Officer </div>
<div>Duke deemed this a second refusal and took Kondratishin to a </div>
<div>police station. </div>
</div></div>
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<div>6 </div>
<div> </div>
<div>¶ 12<span> <span>At trial, following Officer Duke’s testimony and the close <span></span>of the </span></span>
</div>
<div>prosecution’s case, defense counsel moved for a judgment of<span></span> </div>
<div>acquittal, arguing that “the prosecution hasn’t shown that<span></span> there </div>
<div>was [sic] reasonable grounds to make contact with [Kondratishin] <span>or </span>
</div>
<div>ask him for a test or that he was in actual physical control o<span></span>r </div>
<div>driving the vehicle.”</div>
</div>
<div><div>1</div></div>
<div>
<div>  <span>The prosecutor responded, as now relevant, </span>
</div>
<div>In terms of driving, there’s an admission from </div>
<div>the defendant.  [The neighbor] saw the black </div>
<div>BMW drive down the street.  It was the same </div>
<div>BMW that Officer Duke made contact </div>
<div>with. . . .<span>  </span>Upon contact, [the officer] noted an </div>
<div>extremely strong odor of an alcoholic beverage, </div>
<div>slurred speech, and unsteady balance in terms </div>
<div>of leaning against the car and bloodshot </div>
<div>watery eyes.  The defendant also stated that he </div>
<div>drank five beers and he took those five beers </div>
<div>out of his house and into his car where he saw </div>
<div>the neighbor looking at him so he drove down </div>
<div>the street. </div>
<div>The court denied defense counsel’s motion, reasoning <span></span>that although </div>
<div>the chronology “wasn’t terribly clear,” the jury could reason<span></span>ably </div>
<div>infer based on the evidence (which the court summarized) that<span></span> </div>
<div>Kondratishin reparked his car after drinking in his house.<span> </span>
</div>
<div> </div>
</div>
<div><div>1</div></div>
<div>
<div> D<span>efense counsel didn’t challenge the sufficiency of the eviden<span></span>ce on </span>
</div>
<div>the ground Kondratishin now argues on appeal. </div>
</div>
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<div>7 </div>
<div> </div>
<div>2.<span> <span>Standard of Review and Applicable Law </span></span>
</div>
<div>¶ 13<span> </span><span>It is often said that we review de novo a challenge to the </span>
</div>
<div>sufficiency of the evidence to support a conviction.  <span>E.g.</span><span>,</span><span> McCoy v. </span>
</div>
<div>People<span>, 

2019 CO 44

, ¶ <span>19.  But that doesn’t mean we sit as a </span></span>
</div>
<div>thirteenth juror, disregarding the fact of a guilty verdict deli<span></span>vered by </div>
<div>a jury of twelve.  <span>Thomas v. People</span>, 

2021 CO 84

, ¶ 10.<span>  </span>Rather, it </div>
<div>means that we review the record de novo to determine wheth<span></span>er the </div>
<div>evidence presented is sufficient in both quantity and quality to </div>
<div>support a conclusion by reasonable jurors that the defendant<span></span> is </div>
<div>guilty of the charge beyond a reasonable doubt.  <span>Id.</span><span>  </span>And we do so </div>
<div>by applying <span>principles that ascribe weight to the jurors’ </span>
</div>
<div>determination: (1) we don’t second guess any finding<span></span>s supported by </div>
<div>the evidence; (2) we view the evidence in the light most favora<span></span>ble to </div>
<div>the verdict; and (3) we give the prosecution the benefit <span></span>of every </div>
<div>reasonable and relevant inference that may fairly be drawn from t<span></span>he </div>
<div>evidence.  <span>Id.</span> </div>
<div>¶ 14<span> <span>Kondratishin’s challenge to the <span>sufficiency of the evidence is </span></span></span>
</div>
<div>an atypically specific one: he says that no independent evidenc<span></span>e </div>
<div>establish<span>ed</span><span> the trustworthiness of his confession to Officer Duke </span>
</div>
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<div>8 </div>
<div> </div>
<div>that he drank five beers <span>before</span> he drove his car from one parking </div>
<div>spot to the other.</div>
</div>
<div><div>2</div></div>
<div>
<div>  <span>He argues that we must reverse his conviction </span>
</div>
<div>because such evidence is required <span>by the Colorado Supreme Co<span></span>urt’s </span>
</div>
<div>decision in <span>People v. LaRosa</span>, 

2013 CO 2

; independent evidence is </div>
<div>lacking in this case; and his confession is the only evidence </div>
<div>supporting the element of the offense that he drove while impai<span></span>red, </div>
<div>see<span> § 42-4-1303(1)(b). </span>
</div>
<div>¶ 15<span> </span><span>I<span>n <span>LaRosa</span><span>, the court adopted the so-<span>called “trustworthiness </span></span></span></span>
</div>
<div>standard,” under which the prosecution must present<span></span> evidence </div>
<div>corroborating the trustworthiness or reliability of the defen<span></span>dant’s </div>
<div>confession when that confession is the only evidence of <span></span>a crime<span>.  </span>
</div>
<div>LaRosa<span>, ¶¶ 21, 35, 38, 40.  Such corroboration may <span></span>come from </span>
</div>
<div>evidence of facts corroborating facts in the confession,<span></span> facts </div>
<div>establishing the crime that corroborate facts in the confession, o<span></span>r </div>
<div>facts concerning the circumstances of the confession<span></span> that show that </div>
<div>the confession is trustworthy or reliable.  <span>Id.</span> at ¶ <span>41.  Indeed, <span></span>“the </span>
</div>
<div>corroborating facts may be of <span>any sort whatever</span>, provided only that </div>
<div> </div>
</div>
<div><div>2</div></div>
<div>
<div> To the extent Kondratishin contends that his statement to Officer </div>
<div>Burke can’t be understood as such a confession, we reject that<span></span> </div>
<div>contention. </div>
</div>
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<div><div>
<div>9 </div>
<div> </div>
<div>they tend to produce a confidence in the <span>truth of the confessi<span></span>on.”  </span>
</div>
<div>Id.<span> at ¶ <span>40 </span>(alteration omitted) (quoting 7 <span>Wigmore on Evidence</span> <span>§ </span></span>
</div>
<div>2071, at 511 (Chadbourn rev. 1978)). </div>
<div>3.<span> <span>Analysis </span></span>
</div>
<div>¶ 16<span> </span><span>Several evidentiary facts, including the following, corroborate </span>
</div>
<div>the trustworthiness of Kondratishin’s confession<span> when viewed in t<span></span>he </span>
</div>
<div>light most favorable to the verdict: </div>
<div>•<span> <span>Kondratishin showed signs of intoxication when Officer </span></span>
</div>
<div>Duke contacted him. </div>
<div>•<span> <span>Officer Duke found a six-pack container on the floor of the </span></span>
</div>
<div>car with four empty bottles.  Another empty bottle was </div>
<div>tucked between the console and the passenger seat. </div>
<div>•<span> <span>Kondratishin admitted he drank five beers.  (He doesn’t </span></span>
</div>
<div>challenge this aspect of his statement to Officer Duke.) </div>
<div>•<span> <span>Witnesses saw Kondratishin drive the car not long before </span></span>
</div>
<div>the officers arrived. </div>
<div>¶ 17<span> <span>These facts fit Kondratishin’s confession that he drank five </span></span>
</div>
<div>be<span>ers before he reparked the car.  Contrary to his <span></span>suggestion, the </span>
</div>
<div>facts need not definitively support a confession to render that </div>
</div></div>
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<div><div>
<div>10 </div>
<div> </div>
<div>confession sufficiently reliable; it is enough that they tend to </div>
<div>produce confidence in the reliability of the confession.  <span>See i<span>d.</span></span> </div>
<div>¶ 18<span> </span><span>We therefore conclude that the evidence is sufficient to </span>
</div>
<div>support the jury’s verdict.  <span>Cf. State v. Harris<span>, 

575 A.2d 22

<span></span>3, 227 </span></span>
</div>
<div>(Conn. 1990) (evidence that the defendant was alongside his </div>
<div>overturned car, alone on a deserted road, in the early<span></span> hours, with </div>
<div>fresh injuries, and smelling of intoxicating liquor sufficiently </div>
<div>supported the defendant’s confession that he had been drinking </div>
<div>and had driven the car); <span>State v. Ruiz</span>, No. A-1-<span>CA</span>-40201, 2023 <span>WL</span> </div>
<div>7131326, at *1-2 (N.M. Ct. App. Oct. 30, 2023) (unpublished </div>
<div>memorandum opinion) (evidence that the defendant was within<span></span> </div>
<div>arm’s reach of his truck when contacted by police in front <span></span>of his </div>
<div>house, the defendant showed signs of intoxication, the <span>truck’s </span>ho<span></span>od </div>
<div>was warm to the touch, a half-<span>empty beer bottle was in the t<span></span>ruck’s </span>
</div>
<div>center console, a<span>nd the defendant’s mother believed he had be<span></span>en </span>
</div>
<div>drinking while driving supported the trustworthiness <span></span>of the </div>
<div>defendant’s statement to the officer that he had been drinking<span></span> beer </div>
<div>while driving); <span>State v. Owelicio</span>, 

263 P.3d 305

, 311-12 (N.M. Ct.<span></span> </div>
<div>App. 2011) (evidence that the defendant was in the car, she and </div>
</div></div>
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<div><div>
<div>11 </div>
<div> </div>
<div>another person were the only people near the car, and <span></span>the other </div>
<div>person strongly denied driving the car supported the </div>
<div>trustworthiness of the defendant’s statement that she drove t<span></span>he car </div>
<div>after drinking); <span>Commonwealth v. Rodriguez</span><span>, </span>No. 50 MDA 2023<span>, </span>
</div>
<div>

2024 WL 797396

, at <span>*1</span>-3 (Pa. Super. Ct. Feb. 27, 2024) </div>
<div>(unpublished opinion) (evidence that an officer saw the defen<span></span>dant </div>
<div>visibly intoxicated, with injuries, in the middle of the night<span></span>, next to </div>
<div>a car that had crashed into a wall and pole sufficiently corro<span></span>borated </div>
<div>the <span>defendant’s statements to an officer that he had “crashe<span></span>d” and </span>
</div>
<div>had been drinking). </div>
<div>B.<span> <span>Judicial Bias </span></span>
</div>
<div>¶ 19<span> </span><span>Kondratishin next contends that the district court judge </span>
</div>
<div>deprived him of his due process right to a fair and impartial judge </div>
<div>by telling the prosecution how it could present evidence p<span></span>roving his </div>
<div>prior convictions.  We disagree. </div>
<div>1.<span> <span>Additional Background </span></span>
</div>
<div>¶ 20<span> </span><span>After the court ruled that prior convictions were an element of </span>
</div>
<div>the charged offense, the court and counsel discussed how ce<span></span>rtified </div>
<div>Department of Motor Vehicles (DMV) records showing those p<span></span>rior </div>
<div>convictions could be admitted into evidence.  In short, <span></span>the court </div>
</div></div>
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<div><div>
<div>12 </div>
<div> </div>
<div>said that it would “conditionally admit the documents su<span></span>bject to </div>
<div>being tied up later.”<span> </span>
</div>
<div>¶ 21<span> </span><span>During the trial, Officer Duke testified that Kondratishin <span></span>had </span>
</div>
<div>told him he had four prior alcohol-related driving offenses.  She als<span></span>o </div>
<div>testified as to various types of information identifying Kond<span></span>ratishin </div>
<div>that she learned during the booking process.  The prosecutor then </div>
<div>asked for a bench conference to discuss admitting the DMV records. <span></span> </div>
<div>After the court took a recess and reviewed the records, it <span></span>noted that </div>
<div>while the records showed a date of birth, Kondratishin’s date <span></span>of </div>
<div>birth hadn’t been independently establi<span>shed.  The court sai<span></span>d the </span>
</div>
<div>records wouldn’t be admitted “until we tie that <span></span>up.”<span> </span>
</div>
<div>¶ 22<span> </span><span>Officer Duke testified regarding <span>Kondratishin’s date of birth</span><span>, </span></span>
</div>
<div>which she had learned during the booking process.  The prosecutor </div>
<div>then moved to admit the DMV records into evidence. <span></span> Defense </div>
<div>counsel said she didn’t have any objection.  <span>(Indeed, all of this </span>
</div>
<div>occurred without any objection by defense counsel.)<span>  </span>The court </div>
<div>admitted the records, and it instructed the jury on the limited </div>
<div>purpose for which the records could be considered. </div>
</div></div>
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<div><div>
<div>13 </div>
<div> </div>
<div>2.<span> <span>Standard of Review </span></span>
</div>
<div>¶ 23<span> <span>We will assume that we review Kondratishin’s contention t<span></span>hat </span></span>
</div>
<div>the judge exhibited bias against him de novo.  <span>See In re Estat<span></span>e of </span>
</div>
<div>Elliott<span>, 

993 P.2d 474

, 481 (Colo. 2000).  The parties <span></span>disagree on the </span>
</div>
<div>test for determining whether any error requires reversal: t<span></span>he People, </div>
<div>characterizing the issue as an evidentiary one, argue for plain <span></span>error; </div>
<div>Kondratishin, maintaining that the issue is one of actual bias, </div>
<div>argues for structural error.  We don’t need to resolve t<span></span>hat dispute<span>, </span>
</div>
<div>however, given our determination that th<span>e court didn’t demonstrate </span>
</div>
<div>actual bias against Kondratishin. </div>
<div>3.<span> <span>Analysis </span></span>
</div>
<div>¶ 24<span> </span><span>Relying primarily on <span>People v. Martinez</span>, 

523 P.2d 120

 (Colo. </span>
</div>
<div>1974), Kondratishin argues that the judge “assumed the rol<span></span>e of an </div>
<div>advocate” by explaining how the DMV records could be admit<span></span>ted </div>
<div>into evidence.  But this case isn’t anything like <span>Martinez</span><span>.  <span></span>In that </span>
</div>
<div>case<span>, during a pretrial suppression motion hearing,<span></span> the judge </span>
</div>
<div>moved sua sponte for the admission of certain evidence, calle<span></span>d </div>
<div>witnesses for the prosecution, examined the witnesses, and c<span></span>ross-</div>
<div>examined defense witnesses.  <span>Id.</span> at 120-21.  The supreme co<span></span>urt </div>
</div></div>
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<div><div>
<div>14 </div>
<div> </div>
<div>held that the judge had improperly taken on the role of the <span></span>district </div>
<div>attorney, who had failed to appear.  <span>Id.</span> </div>
<div>¶ 25<span> </span><span>In this case, by contrast, the court merely exercised its </span>
</div>
<div>discretionary authority over the presentation of evidence, explaining<span></span> </div>
<div>to counsel for both sides how certain evidence could <span></span>be admitted.  </div>
<div>Cf. People v. Adler<span>, 

629 P.2d 569

, 573-74 (Colo. 1981) (though the </span>
</div>
<div>judge’s indication that the prosecution hadn’t yet presented </div>
<div>sufficient evidence of value in <span>a </span>theft prosecution may have been </div>
<div>“ill<span>-</span><span>advised,” the judge didn’t breach the standard of <span></span>impartiality); </span>
</div>
<div>People v. Acosta<span>, 

2014 COA 82

, ¶¶ <span>92<span>-</span></span><span>99 (judge’s stat</span>ements and </span>
</div>
<div>evidentiary rulings suggesting how the prosecutor might secure </div>
<div>admission of certain testimony didn’t violate the judge’s duty <span></span>of </div>
<div>impartiality).  Therefore, there was no violation of Kondrat<span></span>ishin’s </div>
<div>right to an impartial judge. </div>
<div>C.<span> <span>Evidentiary Challenges </span></span>
</div>
<div>¶ 26<span> </span><span>Kondratishin contends that the court erred by allowing Of<span></span>ficer </span>
</div>
<div>Du<span>ke to testify as an expert, repeat hearsay, and give irrelevant </span>
</div>
<div>testimony<span>.  We don’t see any reversible error.<span> </span></span>
</div>
</div></div>
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<div><div>
<div>15 </div>
<div> </div>
<div>1.<span> <span>Standard of Review </span></span>
</div>
<div>¶ 27<span> <span>All of Kondratishin’s arguments challenge the court’s f<span></span>ailure to </span></span>
</div>
<div>act on evidence proffered by the prosecution.  These <span></span>challenges </div>
<div>implicate the court’s discretion to admit evidence<span>, and we review </span>
</div>
<div>them for an abuse of that discretion.  <span>Venalonzo v. People</span>, 2017 CO </div>
<div>9, ¶ 15 (whether the court erred by admitting testimony as lay<span>, </span>
</div>
<div>rather than expert, testimony); <span>People v. Heredia-Cobos</span>, 2017 COA </div>
<div>130, ¶ 6.  A court abuses its discretion in this context wh<span></span>en its </div>
<div>ruling is manifestly arbitrary, unreasonable, or unfair or base<span></span>d on a </div>
<div>misunderstanding or misapplication of the law.  <span>Heredia-<span>Cobos</span></span>, ¶ <span>6.</span> </div>
<div>¶ 28<span> <span>Because defense counsel didn’t object to any of the evidence at </span></span>
</div>
<div>issue, we determine whether any error requires reversal und<span></span>er the </div>
<div>plain error test.  <span>Hagos v. People</span>, 

2012 CO 63

, ¶ 14; <span>People v. Mi<span></span>ller<span>, </span></span>
</div>
<div>

2024 COA 66

, ¶ 41.  Plain error is error that is obvious an<span></span>d that so </div>
<div>undermined the fundamental fairness of the trial as to <span></span>cast serious </div>
<div>doubt on the reliability of the judgment of conviction.  <span>Ha<span></span>gos<span>, ¶ <span>14.</span> </span></span>
</div>
<div>2.<span> <span>Analysis </span></span>
</div>
<div>¶ 29<span> </span><span>Kondratishin argues that, <span>even though Officer Duke hadn’t </span></span>
</div>
<div>been offered as an expert witness at trial, and the prosecution </div>
</div></div>
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<div><div>
<div>16 </div>
<div> </div>
<div>hadn’t disclosed her as such<span> before trial, she gave the following </span>
</div>
<div>expert testimony: </div>
<div>•<span> <span>Because Kondratishin got out of his car when she got<span></span> out of </span></span>
</div>
<div>hers, she deduced, based on her experience, that “he’s </div>
<div>trying to hide something.”<span> </span>
</div>
<div>•<span> <span>By leaning against his car for balance when he got out of it<span></span>, </span></span>
</div>
<div>Kondratishin behaved abnormally, in her experience. </div>
<div>•<span> <span>She arrested Kondratishin, which, given earlier testimony </span></span>
</div>
<div>that she doesn’t always arrest persons she initially believes </div>
<div>may have been drinking and driving, implied, according <span></span>to </div>
<div>Kondratishin, that he had been driving under the influence.  </div>
<div>(Kondratishin also argues that this testimony was irrelevant </div>
<div>“screening” testimony.)<span> </span>
</div>
<div>•<span> <span>Kondratishin has a “state ID number” created as a result of </span></span>
</div>
<div>a prior criminal conviction, and she determined that </div>
<div>Kondratishin had four prior convictions based on the </div>
<div>criminal history records.<span>  </span>(Kondratishin also argues that </div>
<div>this testimony was hearsay and, as to the four prior </div>
<div>convictions, “a legal conclusion on an ultimate issue.”)<span> </span>
</div>
</div></div>
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<div><div>
<div>17 </div>
<div> </div>
<div>¶ 30<span> <span>Officer Duke’s testimony that leaning against the car indicated </span></span>
</div>
<div>possible intoxication and that she determined Kondratishin <span></span>had </div>
<div>driv<span>en</span><span> <span>while intoxicated didn’t constitute expert testimony.<span></span>  At </span></span>
</div>
<div>bottom, this testimony was premised on observations from which </div>
<div>any ordinary person could have reached the same conclusi<span></span>on based </div>
<div>on such a person’s experience and knowledge.  <span>See People v. </span>
</div>
<div>Kubuu<span>gu</span><span>, 

2019 CO 9

, ¶¶ 11, 13; <span>People v. Russell</span>, 2014 CO<span></span>A 21M, </span>
</div>
<div>¶¶<span> <span>21</span>-26 (police officer could testify as a lay witness that<span></span> the </span>
</div>
<div>defendant appeared to be under the influence of </div>
<div>methamphetamine), <span>aff’d</span>, 

2017 CO 3

.<span>  </span>Likewise, her testimony </div>
<div>about the ID numbers and prior convictions wasn’t e<span></span>xpert </div>
<div>testimony because it was based only on what the documents plainly </div>
<div>said. </div>
<div>¶ 31<span> <span>The officer’s testimony that she though<span>t Kondratishin might be </span></span></span>
</div>
<div>hiding something because he got out of his car is, perhaps, an<span></span>other </div>
<div>story.  But any error in allowing that testimony isn’t plain be<span></span>cause </div>
<div>it isn’t obvious that the testimony was expert testimony<span>, and we </span>
</div>
<div>aren’t persuaded that any error casts serious doubt on the </div>
<div>reliability of the judgment of conviction.  Had Office<span></span>r Duke been </div>
</div></div>
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<div><div>
<div>18 </div>
<div> </div>
<div>tendered as an expert, the court wouldn’t<span> have abused its discreti<span></span>on </span>
</div>
<div>by qualifying her as such.  Defense counsel was able to cross-</div>
<div>examine the officer on the point, and Kondratishin doesn’t as<span></span>sert </div>
<div>what his counsel would have done differently had the co<span></span>urt </div>
<div>qualified the officer as an expert.  There was other substantial </div>
<div>evidence of Kondratishin’s impairment.  And Kondratishin’s d<span></span>efense </div>
<div>wasn’t that he hadn’t been drinking but that he hadn’t been </div>
<div>drinking before he drove. </div>
<div>¶ 32<span> </span><span>For similar reasons, we conclude that allowing Officer Du<span></span>ke to </span>
</div>
<div>testify about Kondratishin’s state ID number <span>and prior convicti<span></span>ons, </span>
</div>
<div>even if hearsay or an improper opinion as to his guilt of the <span></span>prior </div>
<div>offenses, <span>wasn’t plain error.  That testimony was only offere<span></span>d as </span>
</div>
<div>part of the prosecution’s effort to tie Kondratishin to t<span></span>he DMV </div>
<div>records.  Substantial other evidence tied him to those records, </div>
<div>which were properly admitted, <span>and he doesn’t contend othe<span></span>rwise.  </span>
</div>
<div>See People v. Stone<span>, 

2021 COA 104

, ¶ 30 (</span>cert. granted<span> Oct. 17, </span>
</div>
<div>2022); <span>People v. Dominguez</span>, 

2019 COA 78

, ¶¶ 42-<span>51.</span> </div>
<div>¶ 33<span> <span>Lastly, it is questionable whether Officer Duke’s testimony </span></span>
</div>
<div>that she arrested Kondratishin was a commentary on </div>
</div></div>
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<div id="pf14" data-page-no="14">
<div><div>
<div>19 </div>
<div> </div>
<div>Kondratishin’s guilt, even considered in light of her earlier </div>
<div>testimony that she doesn’t always arrest drivers she initially </div>
<div>suspects of drinking and driving.  Therefore, any error in allowing </div>
<div>that testimony arguably wasn’t obvious.  But even if there was </div>
<div>obvious error, it doesn’t cast serious doubt on the reliability <span></span>of the </div>
<div>judgment of conviction.  Whenever someone is charged wit<span></span>h a </div>
<div>crime, a jury obviously knows that the state believes the person to </div>
<div>be guilty.  And Kondratishin cites no case for the proposition that<span></span> </div>
<div>the fact of the charge <span>—</span> or even of an arrest <span>—</span> is unduly </div>
<div>prejudicial.  Counsel thoroughly examined (and cross-examined) </div>
<div>Officer Duke on the circumstances leading up to Kondratishin<span></span>’s </div>
<div>arrest, and the court instructed the jury that the charge it<span></span>s<span>elf isn’t </span>
</div>
<div>evidence that Kondratishin committed any crime.  We note, as well, </div>
<div>that the jury didn’t find Kondratishin guilty of driving under the </div>
<div>influence, indicating that it carefully considered the evidence <span></span>of </div>
<div>Kondratishin’s level of intoxication.<span> </span>
</div>
<div>D.<span> <span>Cumulative Error </span></span>
</div>
<div>¶ 34<span> </span><span>We have identified three possible errors in the admission of </span>
</div>
<div>evidence.  We aren’t persuaded that, considered cumulatively, <span></span>these </div>
</div></div>
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<div id="pf15" data-page-no="15">
<div><div>
<div>20 </div>
<div> </div>
<div>errors deprived Kondratishin of his right to a fair trial.  <span>See Howa<span></span>rd-</span>
</div>
<div>Walker v. People<span>, 

2019 CO 69

, ¶ 24. </span>
</div>
<div>III.<span> <span>Disposition </span></span>
</div>
<div>¶ 35<span> </span><span>The judgment of conviction is affirmed. </span>
</div>
<div>JUDGE LIPINSKY and JUDGE SULLIVAN concur. </div>
</div></div>
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Case Details

Case Name: Peo v. Kondratishin

Court Name: Colorado Court of Appeals

Date Published: Oct 3, 2024

Docket Number: 22CA0705

Court Abbreviation: Colo. Ct. App.