THE PEOPLE OF THE STATE OF COLORADO v. STEVEN CURTIS
No. 18CA0480
Colorado Court of Appeals
August 5, 2021
2021COA103
Opinion by JUDGE DUNN; Fox and Pawar, JJ., concur
Weld County District Court No. 17CR245; Honorable Julie C. Hoskins, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
August 5, 2021
2021COA103
No. 18CA0480, People v. Curtis — Election Law — Offenses Related to Mail Ballots; Crimes — Forgery
A division of the court of appeals considers whether, under People v. Bagby, 734 P.2d 1059, 1061 (Colo. 1987), the legislature intended to limit prosecution for conduct related to mail ballots to the mail ballot offense statute,
The division also concludes that (1) the defendant‘s convictions for forgery and a mail ballot offense do not violate his right to equal protection; (2) felony forgery is not a lesser included offense of misdemeanor mail ballot offense; and (3) the prosecutor did not commit reversible misconduct.
Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney General, Kevin E. McReynolds, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
JUDGMENT AFFIRMED
¶
¶ 2 Curtis appeals his forgery conviction, contending that the prosecution lacked the discretion to charge him under the general forgery statute and, instead, could charge him only under “the more specific” mail ballot offense statute. Because we disagree, we reject Curtis‘s contention that we must vacate his forgery conviction. And because we
I. Background
¶ 3 Curtis and his wife Kelly ended their marriage in May 2016. Kelly later moved to South Carolina. Before the November 2016 general election, the Weld County Clerk and Recorder‘s office sent Kelly‘s mail ballot to the home she once shared with Curtis. Soon after, Curtis filled out, signed, and mailed both his and Kelly‘s ballots to the Weld County Clerk.1
¶ 4 Meanwhile, Kelly contacted the Weld County Clerk‘s office to obtain an absentee ballot but was told that she “had already voted” and that her ballot “was sitting right there.” Kelly explained that she hadn‘t filled out a ballot or given anyone permission to do so on her behalf. She later confirmed that the signature on the ballot envelope wasn‘t hers.
¶ 5 When asked, Curtis denied signing Kelly‘s ballot. Unconvinced, the prosecution obtained a court order requiring Curtis to provide DNA and handwriting samples. DNA testing showed that Curtis had sealed Kelly‘s ballot return envelope, and a handwriting expert concluded that Curtis had filled out the return address on the envelope and signed Kelly‘s name.
¶ 6 The prosecution charged Curtis with forgery and a mail ballot offense. At trial, Curtis implicitly acknowledged that he filled out and signed Kelly‘s ballot but asserted an involuntary intoxication affirmative defense. He argued that his chronic diabetes resulted in blood sugar “blackouts” that made him confused and unable to remember most of October 2016. As a result, he argued that he “did not possess the mental state [necessary] to commit or complete” the charged offenses.
¶ 7 The jury rejected the involuntary intoxication defense and convicted Curtis as charged. The trial court sentenced Curtis to probation and community service.
II. The Bagby Challenge
¶ 8 Relying on People v. Bagby, 734 P.2d 1059, 1061 (Colo. 1987), Curtis first contends that the prosecution lacked authority to charge him under the general forgery statute because the legislature intended to limit prosecution for conduct related to mail ballots to the more specific mail ballot offense statute. We disagree.
A. Waiver and Preservation
¶ 9 We first reject the People‘s contention that Curtis waived his Bagby challenge because it is a challenge to the information that must be raised before trial under
¶ 10 An information may be defective in either form or substance. See People v. Williams, 984 P.2d 56, 63 (Colo. 1999). Objections based on defects to the form of the information must be made before trial or they are waived.
¶ 11 Although the People contend that Curtis‘s claim “raise[s] an alleged defect in the charging information,” they don‘t point to any specific form defect in the information. See People v. Davis, 2017 COA 40M, ¶ 9 (concluding
¶ 12 Nor is any form defect self-evident. The information charged Curtis with two crimes based on the same set of facts. That‘s entirely proper. See
¶ 13 To the extent Curtis‘s claim can be characterized as an objection to the information at all, it appears to be a substantive one. Indeed, if Curtis is correct that the mail ballot offense statute abrogates the general forgery statute, then the prosecution “lacked authority” to charge him with forgery. Thus, should he prevail, we‘d have to vacate the forgery conviction. See Williams, 984 P.2d at 64 (substantive defect renders void any conviction entered on such charge); People v. Moore, 200 Colo. 481, 485, 615 P.2d 726, 729 (1980) (“[W]hen an information fails to charge a crime, the court acquires no jurisdiction.“). Such an objection doesn‘t need to be brought before trial. See Williams, 984 P.2d at 63-64.
¶ 14 Even if we assume Curtis‘s objection could be classified as a form objection, we see nothing in the record — and the People point to nothing — suggesting Curtis‘s failure to raise the challenge under
¶ 15 All this said, we agree with the People that Curtis didn‘t preserve his Bagby challenge. Thus, if we agree error occurred, we won‘t reverse unless the error is plain. See Rediger, ¶ 47.
B. Legal Principles and Standard of Review
¶ 16 When a defendant‘s actions violate more than one criminal statute, the prosecution ordinarily may charge the defendant under each statute. See
¶ 17 But in rare circumstances the prosecution may be barred from charging a defendant under a general criminal statute when the legislature evinces a “clear” intent to limit prosecution to a more specific statute. Smith, 938 P.2d at 115-16; accord Bagby, 734 P.2d at 1061; Clanton, ¶ 11.
¶ 18 To determine whether the legislature clearly intended to limit prosecution to a more specific statute, courts consider whether (1) the specific statute invokes the full extent of the state‘s police powers; (2) the specific statute is part of an act creating a comprehensive and thorough regulatory scheme to control all aspects of a substantive area; and (3) that act carefully defines different types of offenses in detail. See Bagby, 734 P.2d at 1062; Smith, 938 P.2d at 116; People v. Warner, 930 P.2d 564, 568 (Colo. 1996).
¶ 19 Applying the Bagby factors, our supreme court has found only two instances where the legislature “intended the specific provisions” of a statute “to supplant the more general provisions” of the criminal code. Warner, 930 P.2d at 568. First, in Bagby, the supreme court concluded that the legislature intended to require the offense of falsely completing a liquor license application to be prosecuted under the Liquor Code and not the general criminal code. Bagby, 734 P.2d at 1062. And later, in Warner, the court reached a similar conclusion regarding the Limited Gaming Act of 1991, holding that the legislature intended that the use of a device to remove tokens from a slot machine be prosecuted
¶ 20 Bagby and Warner reached their conclusions, in part, by finding that the Liquor Code and the Limited Gaming Act were comprehensive regulatory schemes. Beyond that, however, the supreme court relied significantly on the legislative declarations in the Liquor Code and the Limited Gaming Act. Those respective declarations each invoked the “full extent” of the state‘s police powers. See Bagby, 734 P.2d at 1062 (holding the Liquor Code‘s legislative declaration expressly invoked the full extent of the police powers); Warner, 930 P.2d at 568 (concluding that the Limited Gaming Act‘s legislative declaration invoked the full extent of the state‘s police powers).
¶ 21 We review de novo to determine whether the legislature intended a specific statute to abrogate the general criminal code. See Clanton, ¶ 13.
C. The Mail Ballot Offense Statute Doesn‘t Supplant the General Forgery Statute
¶ 22 As relevant here, a person commits forgery
if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
. . . .
A public record or an instrument filed or required by law to be filed or legally fileable in or with a public office or public servant.
¶ 23 By contrast, a person commits a mail ballot offense if, among other conduct, he “falsely makes, alters, forges, or counterfeits any mail ballot before or after it has been cast.”
¶ 24 Curtis contends he could only be charged with the latter offense because the legislature intended that the more specific mail ballot offense statute supplant the general criminal code. To get there, he asserts that the mail ballot offense statute is part of a broader, comprehensive act that he calls the “Elections Offense Act.” (Curtis identifies this “Act” as all of
¶ 25 Recognizing this gap, Curtis urges us to discern a clear legislative intent to supplant the general criminal code from the “statutory provisions” in that “Act.” But even assuming this suggested approach is consistent with Bagby and Warner, Curtis doesn‘t direct us to any “statutory provision” in article 13 that invokes the state‘s police powers, expressly or otherwise. Nor does he direct us to any particular provision from which we could infer a clear legislative intent to limit the prosecution‘s discretion to bring forgery charges.
¶ 26 Looking past article 13, of more interest to us is the Mail Ballot Election Act and its legislative declaration. See Ch. 43, sec. 2,
¶ 27 Because the Mail Ballot Election Act doesn‘t satisfy the first Bagby factor — invocation of the full extent of the state‘s police powers — we needn‘t consider the remaining two factors.
¶ 28 All told, we conclude the prosecution had discretion to charge Curtis under the forgery statute.
III. Equal Protection
¶ 29 Curtis next contends that the forgery conviction violates his right to equal protection under the law. This is so, he argues, because the forgery statute fails to provide an intelligible standard by which to differentiate the conduct it proscribes from the conduct proscribed by the mail ballot offense statute. We disagree.
A. Legal Principles and Standard of Review
¶ 30 The Colorado Constitution implicitly guarantees a defendant equal protection under the law. Stewart, 55 P.3d at 114; see also
¶ 31 To determine whether two statutes prohibit identical conduct, we compare the statutory elements. See Campbell v. People, 73 P.3d 11, 14 (Colo. 2003); Blue, 253 P.3d at 1279. “If the elements differ qualitatively (and not merely semantically), such that one statute requires proof of an element that the other does not, there is no equal protection violation.” Clanton, ¶ 27; see also Blue, 253 P.3d at 1279.
¶ 32 We review de novo whether two statutes prohibit the same or different conduct. See People v. Lee, 2020 CO 81, ¶ 11; accord Clanton, ¶ 28.
B. The Forgery and Mail Ballot Offense Statutes Require Different Mens Reas
¶ 33 To review, as relevant here, forgery requires proof that (1) a person; (2) with intent to defraud; (3) falsely makes, completes, alters, or utters a written instrument; (4) which was or was purported to be, or which was calculated to become or to represent if completed; (5) a “public record or an instrument filed . . . or legally fileable in or with a public office or public servant . . . .”
¶ 34 By comparison, a mail ballot offense requires proof that a person (1) falsely made, altered, forged, or counterfeited; (2) any mail ballot; (3) “before or after it ha[d] been cast . . . .”
¶ 35 Curtis‘s equal protection argument is premised on the assumption that “both statutes provide for the same mens rea.” But they don‘t. Forgery requires “intent to defraud” while a mail ballot offense doesn‘t. See People v. Billington, 191 Colo. 323, 327, 552 P.2d 500, 503 (1976) (“An essential element of the crime of second-degree forgery is intent to defraud . . . .“). This difference between the statutes is “real in fact.” Stewart, 55 P.3d at 114. It makes forgery a specific intent crime, see
¶ 36 To the extent Curtis asks us to import an “intent to defraud” element into the mail ballot offense statute, we decline to do that. Had the legislature intended to make a mail ballot offense a specific intent crime, it would have done so. E.g., People v. Moseley, 193 Colo. 256, 262, 566 P.2d 331, 335 (1977) (holding that “where a particular specific intent is included as an element of an offense, the legislature has done so expressly” and concluding, based on the legislature‘s silence, that robbery “requires no specific intent“); see also Bates v. United States, 522 U.S. 23, 29 (1997) (declining to read an “intent to defraud” element into a criminal statute and explaining that courts “ordinarily resist reading words or elements into a statute that do not appear on its face“).3
¶ 37 That‘s not to say the mail ballot offense statute has no mens rea (an issue neither party asks us to resolve and on which we express no opinion); rather, we simply conclude it doesn‘t include an intent to defraud.
¶ 38 We also reject Curtis‘s assertion that the statutes prohibit the same actus reus. Without relying on principles of statutory construction, Curtis asserts that “falsely . . . forges” (as used in the mail offense ballot statute) means the same thing as “falsely complete” (as used in the forgery statute). But the legislature specifically defined “falsely complete.” See
¶ 39 For these reasons, we conclude Curtis‘s convictions for forgery and a mail ballot offense don‘t violate his right to equal protection.
IV. Merger
¶ 40 Curtis next contends that felony forgery is a lesser included offense of a misdemeanor mail ballot offense and that the district court erred by failing to merge the convictions and vacate the forgery conviction. We disagree.
A. Legal Principles and Standard of Review
¶ 41 The United States and Colorado Constitutions prohibit multiple punishments for the same offense. See Page v. People, 2017 CO 88, ¶ 8. Thus, a defendant may not be convicted of two offenses for the same conduct if “[o]ne offense is included in the other.”
¶ 42 To determine whether “an offense is a lesser included offense of another
¶ 43 We review de novo whether an offense is a lesser included offense of another. People v. Thomas, 2020 COA 19M, ¶ 30 (cert. granted Sept. 28, 2020).
B. Forgery is not a Lesser Included Offense of a Mail Ballot Offense
¶ 44 For the same reason Curtis‘s equal protection argument is unavailing, so too is his merger argument. That‘s because Curtis‘s merger argument again hinges on his assertion that the mail ballot offense statute requires “the same mens rea — intent by the defendant to defraud” as the forgery statute. As already explained, however, the mail ballot offense statute doesn‘t require an “intent to defraud.” Thus, the prosecution may prove a mail ballot offense without also proving forgery. Which is to say forgery is not a lesser included offense of a mail ballot offense. See Reyna-Abarca, ¶ 64.
¶ 45 While perhaps more expected, Curtis doesn‘t argue that his mail ballot offense conviction merges into his forgery conviction. We therefore don‘t consider whether it does. See, e.g., Galvan v. People, 2020 CO 82, ¶ 45 (The party presentation principle “relies on the parties to frame the issues to be decided and assigns to courts the role of neutral arbiters of the matters raised.“); accord United States v. Sineneng-Smith, 590 U.S. ___, ___, 140 S. Ct. 1575, 1579 (2020).
¶ 46 We conclude the district court properly declined to merge Curtis‘s forgery conviction into his mail ballot offense conviction.
V. Prosecutorial Misconduct
¶ 47 Curtis last contends that the prosecutor committed reversible misconduct during closing and rebuttal closing argument. We disagree.
A. Legal Principles and Standard of Review
¶ 48 A prosecutor has wide latitude to argue based on facts in evidence and reasonable inferences drawn from those facts, as well as to respond to the defendant‘s arguments. People v. Maloy, 2020 COA 71, ¶ 61. But a prosecutor may not “make remarks for the purpose of denigrating the defense.” People v. Collins, 250 P.3d 668, 678 (Colo. 2010); see also People v. Welsh, 176 P.3d 781, 788 (Colo. App. 2007). We evaluate improper argument claims in the context of the argument as a whole and in light of the evidence presented. People v. Munsey, 232 P.3d 113, 123 (Colo. App. 2009).
¶ 49 We engage in a two-step analysis to review prosecutorial misconduct claims. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First, we evaluate whether the prosecutor‘s conduct was improper based on the totality of the circumstances. Id. Second, if it was, we determine whether the conduct warrants reversal under the applicable standard. Id.; People v. Robinson, 2019 CO 102, ¶ 18.
¶ 50 Because Curtis didn‘t object to the prosecutor‘s arguments, we review for plain error. See Robinson, ¶ 19.
B. The Prosecutor Didn‘t Denigrate Curtis‘s Defense Theory
¶ 51 Curtis defended on the theory that, due to his diabetes and related health issues, he was “impaired” and therefore “did not possess the mental state to commit” the charged crimes. In support of this defense, Curtis presented medical experts to discuss diabetic episodes and the impact of uncontrolled blood sugar, as well as family members that testified to their observations of Curtis‘s diabetic episodes.
¶ 52 And the jury heard directly from Curtis who detailed his long-standing diabetic condition, prior hypoglycemic episodes, and specific health challenges during October 2016. Curtis also explained that after he learned about the DNA and handwriting analysis, he had a “vague” memory of injecting insulin late one evening and seeing a ballot in the trash when he went to dispose of
¶ 53 In closing argument, the prosecutor argued Curtis “knew exactly what he was doing” and that “when he realized how provable the crimes were, he grabbed on to the only thing that he could[,] and he has been trying to sell that story ever since.” The prosecutor later used the term “story” roughly a half dozen times in closing and rebuttal closing when discussing Curtis‘s version of events.
¶ 54 Curtis didn‘t object at trial, yet he now argues that the prosecutor improperly denigrated his defense theory by using the word “story” when discussing his account of what happened. But Curtis testified and put his credibility at issue. It‘s proper for a prosecutor to argue — based on reasonable evidentiary inferences — why the jury should or shouldn‘t believe a witness. Domingo-Gomez v. People, 125 P.3d 1043, 1050 (Colo. 2005); see also Martinez v. People, 244 P.3d 135, 141 (Colo. 2010).
¶ 55 The prosecutor did that here. Read in context, the references to Curtis‘s “story” were tied directly to the evidence. They were not personal attacks on Curtis or his counsel. They didn‘t imply Curtis or his counsel acted in bad faith. They weren‘t dressed up with any inflammatory adjectives or adverbs. Rather, the comments were part of the argument explaining why — based on the evidence — the jury shouldn‘t believe Curtis‘s account of what happened. See Collins, 250 P.3d at 678 (The prosecutor‘s comment that the defense counsel‘s theory of reasonable doubt was “absurd” was not improper but “merely a response to defense counsel‘s assertions that the jury could not find defendant guilty beyond a reasonable doubt.“); cf. People v. Serra, 2015 COA 130, ¶ 88 (The prosecutor‘s “statements . . . that [the defendant] was making up a story to suit his ‘selfish, narcissistic needs’ were . . . improper” because they “impl[ied] the defendant ha[d] a bad character” and thus distracted the jury‘s attention away from the evidence.).
¶ 56 Thus, in this closing argument, the prosecutor‘s comments on Curtis‘s version of events were proper.
C. The Prosecutor‘s Comments Weren‘t Otherwise Improper
¶ 57 We are equally unpersuaded with Curtis‘s contention that the prosecutor‘s closing argument “improperly transformed” his constitutional rights into a “burden on his credibility.”
¶ 58 Though he doesn‘t say so directly, Curtis appears to contend the prosecutor made an improper generic tailoring argument. A generic tailoring argument “occur[s] when the prosecution attacks the defendant‘s credibility by . . . drawing the jury‘s attention to the defendant‘s presence at trial and his resultant opportunity to tailor his testimony” absent support in the record. See Martinez, 244 P.3d at 141. Curtis, however, doesn‘t direct us to any portions of the closing argument where the prosecutor did that. Nor do we see a generic tailoring argument.
¶ 59 To the extent Curtis is upset that the prosecutor made a specific tailoring argument when commenting that Curtis only “remembered” seeing his ex-wife‘s ballot after learning about the DNA and handwriting analysis, that argument is directly tethered to Curtis‘s testimony and is proper. See id. (noting prosecutors may “make specific tailoring arguments when they are tied to the evidence in the record“).
¶ 60 Curtis also argues that this same statement — that he “remembered” seeing his ex-wife‘s ballot after he was presented with the evidence against him — was an improper comment on his “right to the disclosure of evidence material to his defense” and to “confront the prosecution‘s evidence.” As we understand it, Curtis suggests that, because it‘s improper for a prosecutor to comment on a defendant‘s right to remain silent, it‘s likewise improper for a prosecutor to comment on a defendant‘s other constitutional rights.
¶ 61 Curtis, of course, didn‘t remain silent, and he doesn‘t explain how the prosecutor
¶ 62 We conclude the prosecutor‘s comments were proper.
VI. Conclusion
¶ 63 We affirm the judgment of conviction.
JUDGE FOX and JUDGE PAWAR concur.