People v. Ryan.
2022 COA 136. No. 19CA0172. Domestic Violence—Habitual Domestic Violence Offender—Sentencing—Penalty Enhancers—Prior Convictions.
December 1, 2022
Ryan and the victim ended their domestic relationship after an argument. The next day, Ryan returned to the victim’s home to collect his belongings. While there, Ryan slapped and threatened the victim, and she ran to a neighbor’s house and called police. Ryan followed the victim to the neighbor’s house, and the victim agreed to return with him to her house so he could collect a necklace and leave. Ryan kicked and pushed the victim while walking back to the house. He pushed her inside the house where he continued kicking her, slapped her in the head, and pulled out some of her hair. A jury found Ryan guilty of third degree assault as an act of domestic violence and criminal mischief as an act of domestic violence, and the trial court subsequently adjudicated him a habitual domestic violence offender (HDVO) and enhanced his sentence accordingly.
On appeal, Ryan argued that because the prosecution presented evidence of multiple acts that could have supported his third degree assault conviction, the trial court erred by not requiring the prosecution to elect the act supporting that count or by failing to give a modified unanimity instruction informing the jury that it had to agree on the same act to convict him of third degree assault. However, a jury need not unanimously decide which of several possible sets of underlying facts constitute a particular element or which of several possible means the defendant used to commit an element of a crime. Here, the prosecutor consistently argued that Ryan’s conduct following the 911 call from the neighbor’s house was the basis for the third degree assault charge. Although Ryan identified four separate acts that could have supported the third degree assault conviction, he did not explain why those multiple acts are not part of a single criminal transaction. Further, while Ryan asserted that some of his conduct was separated by intervening events, he failed to identify any intervening events that occurred between his conduct inside and outside the victim’s house after her 911 call. Accordingly, any error in not requiring an election or giving a modified unanimity instruction was not obvious. In addition, the omission of an election or a modified unanimity instruction did not so undermine the fundamental fairness of the trial as to cast serious doubt on the conviction judgment’s reliability.
Ryan also argued that the trial court reversibly erred when it found that his prior convictions included an act of domestic violence. He maintained that the HDVO statute requires the merits fact-finder to determine whether a defendant was previously convicted of a domestic violence offense, unless the domestic violence finding was previously admitted by the defendant as part of a plea or previously determined by a jury. The People conceded that the HDVO statute required the jury to determine whether Ryan’s prior convictions included an act of domestic violence. The General Assembly intended that a domestic violence finding associated with a defendant’s prior conviction must be (1) previously determined by a jury, (2) previously admitted by the defendant, or (3) proved to the trier of fact at sentencing in the current proceeding. Here, the jury was the merits fact-finder and should have made the HDVO determination on at least two of Ryan’s four prior convictions, but the trial court denied Ryan’s request for a jury determination of his HDVO status and made the domestic violence finding. Accordingly, the trial court erred, and the error so undermined the fundamental fairness of the proceeding as to cast serious doubt on the reliability of the HDVO adjudication.
Lastly, Ryan contended, and the People conceded, that the trial court erred by failing to hold a hearing on Ryan’s objection to the prosecution’s restitution request and that the case should be remanded for such a hearing.
The judgment of conviction and restitution order were reversed. The case was remanded for (1) the entry of misdemeanor convictions on the jury’s verdicts, or for the prosecution to retry Ryan on the HDVO counts in accordance with CRS § 18-6-801(7); and (2) the trial court to hold a hearing to determine restitution.