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People v. Tran.

2020 COA 99. No. 16CA2136. Criminal Law—Second Degree Burglary—Possession of Burglary Tools—Hearsay—Business Records Exception—Statement of Party Opponent—Right to Confront Witnesses—Prosecutorial Misconduct—Sentencing—Grave and Serious—Proportionality Review.

June 25, 2020

Walmart employees caught defendant shoplifting from the store. When the employees apprehended defendant, they looked him up in a database where Walmart records the names of shoplifters. Defendant had been caught shoplifting from Walmart three times before, and Walmart had previously issued him a “trespass notice.” The trespass notice warned him that he was no longer allowed on Walmart property, and if he tried to enter Walmart property, he could be charged with criminal trespass. Defendant had printed and signed his name on the trespass notice acknowledging that he read and understood it. Walmart employees contacted the police, and defendant was arrested.

At trial, the prosecution introduced the trespass notice, among other evidence. A jury found defendant guilty of second degree burglary and possession of burglary tools. The trial court found that defendant had six previous felony convictions, and it adjudicated him a habitual criminal and sentenced him to an aggregate of 24 years in the custody of the Department of Corrections (DOC). Defendant requested a proportionality review of his sentence. The trial court conducted an abbreviated proportionality review and found that four of defendant’s convictions were “grave and serious,” so it denied defendant’s request for an extended proportionality review.

On appeal, defendant contended that the trial court erred by admitting the trespass notice because it contained inadmissible hearsay. Defendant’s signature on the notice was not hearsay because it was a statement of a party opponent. Walmart’s statement in the notice was hearsay; however, the trial court did not abuse its discretion in admitting this statement under the CRE 803(6) business records exception.

Defendant also argued that the trial court erred by admitting the trespass notice because it violated his constitutional right to confront witnesses. However, the Confrontation Clause does not guarantee a defendant the right to confront himself, and the trial court did not commit plain error in admitting Walmart’s statement in the trespass notice because the evidence was cumulative.

Defendant also contended that the prosecutor committed reversible misconduct during his rebuttal closing argument. The prosecutor’s remarks challenging defendant’s theory of the case, highlighting the prosecution’s evidence, and using the terms “they” and “them” to refer to defendant and defense counsel, taken in context, were not so improper as to constitute plain error.

Defendant further argued that the trial court erred by denying his request for an extended proportionality review of his sentence. Here, when conducting its abbreviated proportionality review, the trial court found that four of defendant’s previous convictions were per se grave and serious, without analyzing the facts of each offense to determine whether they were grave and serious. Three years after defendant was sentenced, Wells-Yates v. People, 2019 CO 90M, significantly changed the law on sentence proportionality, so the trial court relied on several points of law that are no longer valid.

The judgment of conviction was affirmed, the trial court’s order denying defendant’s request for an extended proportionality review was reversed, and the case was remanded for the trial court to conduct a new abbreviated proportionality review.

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

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