Grand County District Court No. 11CR114 Honorable Mary C. Hoak, Judge.
John W. Suthers, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Leslie A. Goldstein, Attorney at Law, L.L.C., Leslie A. Goldstein, Steamboat Springs, Colorado, for Defendant-Appellant
¶ 1 Defendant, Laura Gutierrez-Vite, appeals the judgment of conviction entered on jury verdicts finding her guilty of attempted theft and two counts of first degree offering a false instrument for recording. We affirm.
I. Facts and Procedural History
¶ 2 Defendant and her husband, German Jasso, moved into a vacation home located in Fraser, Colorado (the property). Neither defendant nor Mr. Jasso owned a record interest in the property. On October 6, 2011, defendant and Mr. Jasso executed an affidavit of adverse possession stating that, since July 22, 2011, they had possessed the property under Colorado's adverse possession statute. The affidavit further stated that their claim of title to the property was based on the record owner's willful and voluntary abandonment, adverse possession, and a "good faith purchase offer." On October 7, 2011, the affidavit was recorded in the records of the Grand County Clerk and Recorder's Office.
¶ 3 After learning of the affidavit's recording, the Fraser/Winter Park Police Department initiated an investigation. A police officer determined, based on the online records of the Grand County Assessor's Office, that A.H. owned the property. Police spoke with A.H. and learned that she had relocated to Hawaii and the property was in foreclosure. A.H. confirmed that she did not know defendant or Mr. Jasso and had never authorized them to enter the property.
¶ 4 After speaking with A.H., a police officer contacted Mr. Jasso at the property on October 26, 2011. The officer instructed him that he had one week to vacate the property, remove all belongings, and restore the original front door lock. After the one week period ended, defendant and Mr. Jasso remained at the property. On November 4, 2011, police had a locksmith change the front door lock and posted "no trespassing" and "no occupancy" signs.
¶ 5 That same day, defendant and Mr. Jasso executed and recorded in the Grand County records a limited durable power of attorney authorizing America's Home Retentions Services and Alfonso Carrillo, as Trustee, to undertake specified tasks on their behalf concerning the property.
¶ 6 On December 2, 2011, defendant was arrested and charged with theft, first degree criminal trespass, and two counts of first degree offering a false instrument for recording (for the alleged false statements in the affidavit of adverse possession and limited power of attorney). The prosecution later amended the theft count to attempted theft and dismissed the trespass charge.
¶ 7 Defendant filed a pretrial motion seeking leave to assert at trial a mistake of law affirmative defense, under section 18-1-504(2)(a), C.R.S. 2014, based on her alleged belief that the law of adverse possession allowed her to seek ownership of the property. The trial court denied the motion and ruled that Colorado's adverse possession statute did not apply to residences.
¶ 8 At a jury instruction conference, defendant requested various mistake of fact instructions based on her alleged belief that the property had been abandoned. The trial court denied the instructions on the grounds that there was not even a scintilla of evidence that she had entertained a good faith belief that the property had been abandoned.
¶ 9 The jury convicted defendant of attempted theft and two counts of offering a false instrument for recording. She was ...