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People v. Nelson

Court of Appeals of Colorado, Seventh Division

December 4, 2014

The People of the State of Colorado, Plaintiff-Appellee,
v.
Scott R. Nelson, Defendant-Appellant

Page 176

[Copyrighted Material Omitted]

Page 177

Mesa County District Court No. 12CR1141. Honorable Thomas M. Deister, Judge.

John W. Suthers, Attorney General, Lisa K. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Laura L. Magner, Boulder, Colorado, for Defendant-Appellant.

Opinion by JUDGE J. JONES. Miller and Berger, JJ., concur.

OPINION

J. JONES, J.

Page 178

[¶1] Defendant, Scott R. Nelson, appeals the judgment of conviction entered on a jury verdict finding him guilty of aggravated motor vehicle theft. Among the issues he raises is a question of first impression in Colorado: When the state files charges against a defendant, later seeks and obtains dismissal of the charges, and still later refiles the charges, does the period during which the defendant first was charged count in assessing a contention by the defendant that he was denied his constitutional right to a speedy trial? We answer that question " yes." Nonetheless, we conclude that defendant was not denied his constitutional right to a speedy trial. We also reject his other contentions of error. Accordingly, we affirm.

I. Background

[¶2] Following an automobile accident, defendant's girlfriend rented a vehicle from Mesa Motors, Inc. (Mesa), with the understanding that an insurance company would pay for the rental. About three weeks later, she switched the rental to a different vehicle provided by Mesa. Shortly thereafter, defendant signed the rental agreement.

[¶3] The insurance company told defendant and his girlfriend that it would stop paying for the vehicle about two weeks after the rental began. Neither defendant nor his girlfriend told Mesa about the insurance company's decision, but continued to represent to Mesa that the insurance company would continue to pay. However, Mesa's owner, David Ward, learned of the insurance company's decision. When Mr. Ward confronted defendant, defendant assured Mr. Ward that he would pay for any rental charges not paid for by the insurance company.

[¶4] After using the vehicle for about two months, defendant told Mr. Ward he wanted to buy the vehicle. They agreed to a purchase price, but also agreed that defendant would pay any accrued rental charges up to the date of purchase.

[¶5] Defendant did not pay the purchase price or the unpaid rental charges, nor did he return the vehicle. Defendant did not return Mr. Ward's telephone calls for one to two weeks. Mr. Ward went to the address defendant had provided as his residence, but discovered that defendant and his girlfriend had moved without leaving a forwarding address.

[¶6] Mr. Ward reported the vehicle stolen. He left defendant a voicemail message telling defendant he had contacted the police. Defendant left a return voicemail message for Mr. Ward telling him where he would find the vehicle. Mr. Ward found the car where defendant had said it would be.

[¶7] The People ultimately charged defendant with first degree aggravated motor vehicle theft, theft, and theft of rental property. The district court granted defendant's motion for a judgment of acquittal on the theft of rental property charge. A jury found defendant

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guilty of aggravated motor vehicle theft, but not guilty of theft.

II. Discussion

[¶8] Defendant raises four issues on appeal. First, he contends that his statutory right to a speedy trial was violated. Second, he contends that his right to a speedy trial under both the United States and Colorado Constitutions was violated. Third, he contends that the district court erred in rejecting his proposed jury instruction on the affirmative defense of consent. And fourth, he contends that the district court erred in rejecting his proposed jury instruction on the affirmative defense of mistake of fact. We address and reject these contentions in turn.

A. Speedy Trial

[¶9] Before trial, defendant moved to dismiss the charges based on his statutory right to a speedy trial and his constitutional right to a speedy trial. The district court denied the motion. Defendant contends that the court erred in applying the speedy trial guarantees of the statute and the federal and state constitutions. We are not persuaded.[1]

1. Statutory Right

[¶10] Section 18-1-405(1), C.R.S. 2014, provides, as relevant here, that a defendant must be brought to trial within six months of a plea of not guilty. See also Crim. P. 48(b). If he is not, and no valid statutory basis exists for extending the six-month period, the court must dismiss the charges, and the People may not thereafter charge the defendant with any offense " based upon the same act or series of acts arising out of the same criminal episode."

[¶11] The People initially charged defendant on December 15, 2011. He entered a not guilty plea on May 23, 2012. The trial on the charges did not begin until April 16, 2013. Because more than six months elapsed between the date of his initial plea -- May 23, 2012 -- and the first day of trial -- April 16, 2013 -- defendant argues that the court erred in denying his motion to dismiss based on section 18-1-405(1).

[¶12] To properly assess defendant's argument, however, we must consider the complete procedural history of this prosecution.

[¶13] The People moved to dismiss the original charges without prejudice on July 31, 2012. Defendant did not object. The district court granted that motion on August 1, 2012, when almost four months remained in the statutory six-month period.

[¶14] The People refiled the charges on October 9, 2012. At defendant's initial court appearance on the refiled charges, his counsel raised the speedy trial issue, taking the position that the statutory speedy trial period would expire on November 23, 2012. The court held a hearing on the issue on November 7 and 8, 2012. At that hearing, defendant's counsel also raised " the constitutional right to a speedy trial." The prosecutor told the court that the reason the charges had been dismissed was that she had been under the impression that only defendant's girlfriend had signed the rental agreement, making defendant's conviction unlikely. Mr. Ward subsequently contacted the prosecutor and told her defendant had signed the rental agreement. The prosecutor followed up, found that defendant had signed the rental agreement, and based on that discovery decided to refile the charges. The prosecutor affirmatively represented that she had not sought to dismiss the charges to circumvent defendant's speedy trial right.

[¶15] Following the hearing, the court ruled from the bench that there was no statutory violation because the charges had been dismissed without prejudice relatively early in the speedy trial period and the prosecutor had not sought to dismiss the charges to get around the speedy trial deadline. More specifically, the court ...


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