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People v. Miller.

2024 COA 45. No. 21CA1584. Stalking—Contacts—Unanswered Telephone Calls—Prosecutorial Misconduct—Sufficiency of Evidence—Crime of Violence Sentence Enhancement—Merger of Convictions.

May 2, 2024

Miller dated F.R. In 2019, while driving her car, F.R. told him that she wanted to break up, and Miller grabbed the steering wheel, causing the car to swerve into the opposite lane. Miller then assaulted her 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 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. The People charged all of the offenses 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 contended 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. 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 argued 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 determined 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, 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. Here, the district court didn’t plainly err by entering convictions for both offenses because any error wasn’t obvious.

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.

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

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