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People v. Kern.

2020 COA 96. No. 17CA2003. Criminal Law—Stalking—Tampering with a Motor Vehicle—Littering—Throwing a Missile—Evidence—Damages—Lesser Included Offense—Concurrent Sentencing—Fines.

June 18, 2020

Defendant threw plastic bags filled with various foreign substances (including chemicals) onto his ex-wife’s (the victim) residential property and vehicle on multiple occasions. A jury found him guilty of one count of stalking, two counts of tampering with a motor vehicle, six counts of throwing a missile at a vehicle, and six counts of littering.

On appeal, defendant contended that the trial court erred by admitting into evidence his statements about a restraining order against him. The court admitted a redacted audio recording of defendant’s interview with police in which defendant mentioned that the victim had a restraining order against him. The prosecutor played the recording for the jury, and the jurors received a transcript to assist them in following it. The transcript was not admitted into evidence and was not given to the jury during deliberations. Here, the references to a restraining order in the recording were brief and vague, the court gave a limiting instruction, and other evidence against defendant was considerable. Therefore, the statements about a restraining order did not substantially influence the verdict or impair the fairness of the trial. Accordingly, the trial court did not err.

Defendant also contended that the prosecution failed to prove beyond a reasonable doubt that he caused $1,000 or more in damages to the victim’s truck as to each count of tampering with a motor vehicle. However, the victim provided sufficient evidence that her vehicle sustained over $4,000 in damages between two separate incidents. Therefore, it is reasonable to conclude that the vehicle sustained at least $1,000 in damages in each incident.

Defendant next contended that his convictions for littering represent lesser included offenses of his convictions for throwing missiles at a vehicle because, by projecting a missile at or against a vehicle, a person necessarily throws or leaves litter on property. Defendant thus maintained that the trial court’s failure to merge the littering convictions with the throwing missiles convictions violated his double jeopardy rights and constituted plain error. Littering is not a lesser included offense of throwing a missile at a vehicle. Accordingly, defendant’s littering convictions should not be merged into his throwing a missile convictions.

Defendant further argued that the trial court erred by imposing both prison sentences and fines for multiple offenses supported by identical evidence: the two tampering with a vehicle counts (prison sentences), the six throwing a missile at a vehicle counts (fines), and the six littering counts (fines). However, the concurrent sentencing requirement of CRS § 18-1-408(3) does not apply to fines imposed as a punishment for conviction. Therefore, imposing prison sentences on the counts of tampering with a motor vehicle and fines on the counts of throwing a missile at a vehicle and littering did not violate CRS § 18-1-408(3), and the trial court did not err.

The judgment was affirmed.

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

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