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People v. Caime.

2021 COA 134. No. 18CA2423.  Res Gestae Evidence—Expert Testimony—Special Offender—Jury Instructions—Sentencing—Habitual Offender—Abbreviated Proportionality Review—Per Se Grave or Serious Offense.

November 4, 2021

Two officers spotted a parked car that had been reported stolen. Defendant (the driver) and a passenger were inside the car. After an altercation, officers arrested them, searched the car, and found a gun between the driver’s seat and center console and a bag of methamphetamine on the driver’s side floorboard. A jury convicted defendant of possession of a controlled substance and found that he was a special offender. The trial court adjudicated defendant a habitual offender and, after conducting an abbreviated proportionality review, imposed the statutorily mandated 64-year sentence for his conviction.

On appeal, defendant argued that the trial court reversibly erred by admitting evidence of his history of dealing drugs as res gestae evidence without the protective measures required by CRE 404(b). Here, the statements about defendant’s drug-dealing history were relevant to whether he had the intent to manufacture or distribute the methamphetamine, and the jury acquitted defendant of that charge. Further, the jury heard defendant’s independent admission that he was holding dope, and the court gave a limiting instruction. Thus, any error was harmless.

Defendant also contended that the jury instruction regarding the special offender sentencing factor constructively amended that charge. As charged, the jury would have had to find that either defendant or his passenger had a gun in the car. As instructed, the jury’s determination of guilt could be based either on that finding or a finding that the men had access to a gun in a manner that posed a risk to others. Defendant contended that the “posed a risk to others” language in the jury instruction was a constructive amendment. But there was overwhelming and undisputed evidence that there was a gun in the car, so including this language did not so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction.

Defendant further argued that the trial court erroneously allowed the prosecution’s fingerprint expert to testify at the habitual sentencing proceeding that her report was verified by another competent examiner. This statement was admitted at the sentencing hearing, which was a bench trial, so a presumption applies that the court disregarded the reference to the other examiner. Further, the record does not indicate that the court placed any weight on this testimony, and the statement was entirely duplicative of what the expert properly testified to regarding her own report. Therefore, even if the statement was improper, any error was not plain.

Lastly, defendant argued that the trial court conducted an inadequate abbreviated proportionality review because it did not engage in a particularized analysis of the facts and circumstances surrounding each offense. Here, the prosecution charged defendant as a habitual offender based on five predicate felonies: possession with intent to distribute a controlled substance, two possession of a weapon by a previous offender convictions, vehicular assault (reckless driving), and criminal mischief. At the habitual criminal proceeding, the trial court found that the prosecution had proven each of the prior felonies and concluded that the mandatory 64-year sentence did not give rise to an inference of gross disproportionality. The court reached this conclusion by finding that vehicular assault (reckless driving) was a per se grave and serious offense. However, this offense is not a per se grave or serious offense for purposes of conducting a proportionality review, so the court’s abbreviated proportionality review was insufficient.

The judgment of conviction was affirmed, the 64-year sentence for possession of a controlled substance was vacated, and the case was remanded, with instructions, to conduct a new proportionality review.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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