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People v. Miller.

2024 COA 66. No. 21CA1584. Stalking—Contacts—Unanswered Telephone Calls—First Degree Burglary—First Degree Criminal Trespass—Lesser Included Offenses—Merger of Convictions—Prosecutorial Misconduct—Sufficiency of Evidence—Crime of Violence Sentence Enhancement.

June 27, 2024

The court of appeals issued an opinion in this case on May 2, 2024. It then granted Miller’s petition for rehearing and issued this opinion.

Miller and F.R. dated, and in 2019, while driving her car, F.R. told him that she wanted to break up. Miller grabbed the steering wheel, causing the car to swerve into the opposite lane. Miller then assaulted F.R. and left her lying on the road as he drove away in her car. Miller was arrested for the car incident but released on bond. In June 2020, Miller broke into F.R.’s apartment one night, wrestled a gun from her, and physically assaulted her again. Between July and August 2020, F.R. received more than 40 phone calls from an unknown number, which police traced to the Adams County jail where Miller was in custody. Miller was charged with robbery, aggravated motor vehicle theft, and third degree assault based on the car incident; first degree criminal trespass, violation of bail bond conditions, second degree kidnapping as a crime of violence, and two counts of first degree burglary as a crime of violence based on the apartment incident; and stalking (emotional distress) and violation of a protection order based on the phone calls between July and August 2020. All offenses were charged as acts of domestic violence. A jury acquitted Miller of robbery and kidnapping but found him guilty of the remaining charges. Miller was sentenced for the various crimes, with the longest term at 15 years for first degree burglary as a crime of violence.

On appeal, Miller argued that the prosecutor committed misconduct by improperly bolstering F.R.’s credibility during voir dire, opening statement, and closing argument when she (1) referenced several domestic violence concepts and (2) expressed her personal opinion that F.R.’s behavior was consistent with that of domestic violence victims. Miller maintained that defining characteristics of domestic violence can only be presented to the jury through expert testimony, so the prosecutor’s referencing of such characteristics improperly introduced nonexistent expert testimony. Here, however, the prosecutor’s comments didn’t implicate specialized social science information; the prosecutor’s comments were based on the evidence presented at trial; and the prosecutor didn’t vouch for witnesses’ credibility by speaking in the first person. Accordingly, there was no prosecutorial misconduct.

Miller also contended that his stalking conviction must be reversed because the jury used an incorrect verdict form and heard inadmissible testimony relating to that charge. He maintained that unanswered phone calls aren’t “contacts” under the stalking statute, CRS § 18-3-602(1)(c), because there was no possibility of physical engagement nor communication. The court of appeals held that a person “contacts” a victim within the meaning of the stalking statute by phoning the victim, even if the victim does not answer the calls. Here, the stalking verdict form listed the 47 calls as potential incidents of stalking for which the jury could convict Miller, and defense counsel didn’t object to the verdict form. The jury found Miller guilty of stalking in violation of a protection order based on all 47 calls. Further, the challenged portion of the officer’s testimony didn’t substantially influence the stalking verdict, even if it called for a legal conclusion, so there was no plain error in admitting the testimony. Accordingly, the stalking conviction is proper.

Miller further challenged the crime of violence sentence enhancement, contending that there was insufficient evidence to prove that he committed first degree burglary as a crime of violence because the evidence did not prove that he intended to violate a protection order once he took the gun from F.R. However, the evidence shows that, once Miller took the gun, he contacted F.R. in violation of the protection order while unlawfully remaining in her apartment and during the immediate flight therefrom. Therefore, there was sufficient evidence to sustain the crime of violence sentence enhancement for Miller’s first degree burglary convictions.

Miller further argued that the district court plainly erred by not merging his first degree criminal trespass and first degree burglary convictions because under the statutory elements test as clarified in Reyna-Abarca v. People, 2017 CO 15, ¶ 64, first degree criminal trespass is a lesser included offense of first degree burglary. After the court issued its initial opinion in this case, the Colorado Supreme Court held in Whiteaker v. People, 2024 CO 25, ¶ 20, that first degree criminal trespass is a lesser included offense of second degree burglary under the Reyna-Abarca “clarified subset test,” and when one offense is a lesser included offense of another, any conviction for the lesser included offense must merge into a conviction for the greater offense. Similarly, proving the elements of first degree burglary proves first degree criminal trespass. Accordingly, Miller’s conviction for first degree criminal trespass must merge into the conviction for first degree burglary.

Lastly, Miller asserted that the district court erred by imposing consecutive sentences for his violation of bail bond conditions and first degree burglary convictions. He maintained that concurrent sentences were required for those convictions because they were supported by identical evidence—that Miller entered F.R.’s apartment in June 2020. But the evidence supports a reasonable inference that the jury convicted Miller for violating bail bond conditions and first degree burglary based on separate acts. Therefore, the district court properly exercised its sentencing discretion.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

The full opinion is available at

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

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