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People v. Curtis.

2021 COA 103. No. 18CA0480. Election Law—Mail Ballot Offense—Forgery—Equal Protection—Lesser Included Offense—Prosecutorial Misconduct.

August 5, 2021


Defendant tried to vote twice in the 2016 general election. He submitted his own mail ballot and filled out his ex-wife’s mail ballot, forged her signature on the ballot envelope, and mailed it to the county clerk and recorder. A jury convicted defendant of forgery and a misdemeanor mail ballot offense.

Defendant appealed his forgery conviction, contending that the prosecution lacked  discretion to charge him under the general forgery statute because the legislature intended for the more specific mail ballot offense statute to supplant the criminal code. However, the Mail Ballot Election Act does not invoke the full extent of the state’s police powers, so the prosecution had discretion to charge defendant under the forgery statute.

Defendant also contended that the forgery conviction violated his right to equal protection because it fails to provide an intelligible standard for differentiating the conduct it proscribes from the conduct proscribed by the mail ballot offense statute. Forgery requires an intent to defraud but a mail ballot offense does not, so the statutes have different mens reas. Further, the statutes prohibit different conduct. Accordingly, there is no equal protection violation.

Defendant also argued that felony forgery is a lesser included offense of a misdemeanor mail ballot offense, so the district court erred by failing to merge the convictions and vacate the forgery conviction. However, as stated above, the mail ballot statute requires a different mens rea, so forgery is not a lesser included offense of a mail ballot offense. Accordingly, the district court did not err.

Lastly, defendant argued that the prosecutor committed reversible misconduct during closing and rebuttal closing argument. He maintained that the prosecutor improperly denigrated his defense theory by using the word “story” when discussing defendant’s account of what happened. However, the prosecutor’s comments were proper because they were tied directly to the evidence and were part of the prosecutor’s explanation of why the jury shouldn’t believe defendant’s account of what happened.

The judgment of conviction was affirmed.

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

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