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People v. Lopez

2020 COA 119. No. 16CA1876. Criminal Law—Indecent Exposure—Public Indecency—Lesser Nonincluded Offense—Prior Convictions.

August 6, 2020

Defendant is an inmate at a Department of Corrections facility. He walked inside from the prison yard and twice exposed his genitals to a case manager in the doorway leading into the unit. He was charged with felony indecent exposure—third or subsequent offense. At trial, defendant’s attorney requested a jury instruction on the lesser nonincluded offense of public indecency. The court rejected the instruction, and defendant was convicted as charged.

On appeal, defendant argued that the trial court erred by failing to instruct the jury on the lesser nonincluded offense of public indecency. A defendant is entitled to a lesser nonincluded instruction if the evidence establishes a rational basis to acquit the defendant on the greater charge and to convict the defendant on the lesser charge. A person commits public indecency by knowingly exposing the person’s genitals to another person in a public place under circumstances in which such conduct is likely to affront or alarm the other person. The common area of a prison facility is a public place for purposes of the public indecency statute. Therefore, public indecency was a lesser nonincluded offense of indecent exposure, and the trial court’s failure to instruct the jury on the lesser offense was error. Further, defendant’s defense was that he lacked the requisite intent to commit indecent exposure due to anxiety, so there was a rational basis to acquit him of the indecent exposure charge and convict him of public indecency. Accordingly, there is a reasonable probability that the trial court’s failure to give the lesser nonincluded instruction contributed to the verdict, and this error was not harmless.

Defendant also argued that the trial court erred by using a void prior conviction to enhance his conviction to a felony. The prosecution charged indecent exposure as a felony because defendant had two prior indecent exposure convictions. However, one of the prior convictions was based on a charge filed outside of the statute of limitations, so the court did not have subject matter jurisdiction to convict him. Consequently, on retrial, if defendant is convicted of indecent exposure, the prior judgment of conviction cannot be used to enhance the current conviction to a felony.

The judgment was reversed and the case was remanded for a new trial.

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

Related Topics

Criminal Law, Indecent Exposure, Public Indecency, Lesser Nonincluded Offense, Prior Convictions

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