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People v. Forgette.

2021 COA 21. No. 16CA0441.  Criminal Law—Jury—Waiver—Evidence—Identity.

February 25, 2021

A jury convicted defendant of second degree burglary of a dwelling. The trial court sentenced him to 12 years in the custody of the Department of Corrections.

On appeal, defendant argued that his conviction must be reversed because one of the jurors fell asleep during the presentation of evidence, depriving him of his statutory right to a 12-person jury. Although the issue of the sleeping juror was brought to the court’s attention, defense counsel never requested a remedy, and the trial court wasn’t presented with any specific objection to rule on. Therefore, defense counsel did not preserve the issue for appeal. Further, counsel’s failure to request relief for the known defect of a sleeping juror constituted a waiver of the right to a jury of 12, so the Court of Appeals did not consider the merits of his argument.

Defendant also contended that the trial court made two evidentiary errors warranting reversal by (1) admitting three photos of him taken while he was in custody, and (2) allowing an officer to testify regarding his behavior during the traffic stop that precipitated his arrest. First, because defendant’s identity was a contested issue at trial and his appearance had changed substantially since his arrest, the court’s admission of three photos of defendant taken while he was in custody with the jail clothing cropped out of the photos was not an abuse of discretion. Second, the evidence of defendant’s evasive and obstreperous conduct during the traffic stop that occurred shortly after the burglary, and at a time when the fruits of that burglary were in the vehicle’s trunk, was probative of defendant’s consciousness of guilt. Therefore, the court didn’t abuse its discretion in admitting the officer’s testimony about defendant’s conduct during the traffic stop. Finding no evidentiary error, the Court rejected defendant’s further contention that there was cumulative error.

Defendant further argued that the trial court erred by aggravating his sentence because only a jury may properly find facts that aggravate a sentence. However, a court may aggravate a sentence based on a judge-found fact that a defendant has a prior conviction or was on probation at the time of the crime. Here, the court found that defendant was on felony probation when he committed the crime in this case. Therefore, there was no error.

The conviction and sentence were affirmed.

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

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