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People v. Lancaster

Court of Appeals of Colorado, Seventh Division

July 16, 2015

The People of the State of Colorado, Plaintiff-Appellee,
v.
Gejuan Levar Lancaster, Defendant-Appellant

          El Paso County District Court No. 11CR1307. Honorable William B. Bain, Judge.

          JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS.

         Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

         Douglas K. Wilson, Colorado State Public Defender, Nathaniel E. Deakins, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

         Opinion by JUDGE GABRIEL. Richman and Navarro, JJ., concur.

          OPINION

         GABRIEL, JUDGE

          [¶1] Defendant, Gejuan Levar Lancaster, appeals the judgment of conviction and sentence on a jury verdict finding him guilty of kidnapping, two counts of sexual assault, menacing, and third degree assault. We conclude that the trial court did not err in (1) denying Lancaster's motion to suppress a DNA profile that he contends resulted from a violation of his rights under the United States and Colorado Constitutions and (2) denying without an evidentiary hearing his motion to allow evidence that the victim had a history of making false allegations of sexual assault. We further conclude that the record is not sufficiently developed for us to determine whether the trial court misperceived the applicable sentencing range for Lancaster's sexual assault counts. Accordingly, we affirm the judgment, vacate the sentences on the sexual assault counts, and remand for resentencing on those counts.

         I. Background

          [¶2] Late one evening in November 2009, a man approached the victim on a street after the victim had left a friend's apartment. After following her for a time, the man walked up to the victim, wrapped his arm around her neck, and said, " Come here girl." She screamed, and he told her that he had a gun and that if she did not stop screaming, he would shoot her in the head. He then forced her into a field and sexually assaulted her. During the assault, she felt what she thought was a gun in the man's jacket pocket. After the man left, the victim went to a nearby home, and the residents let her in and called 911. A DNA swab was subsequently taken from the victim, and the resulting DNA profile was uploaded to both a Colorado database and the Combined DNA Index System (CODIS) national DNA database.

          [¶3] As a result of the above-described assault, the People charged Lancaster with numerous counts of kidnapping, sexual assault, menacing, and third degree assault. The case proceeded to trial, where Lancaster presented a misidentification defense. The jury convicted him as charged, and the trial court sentenced him, as pertinent here, to an indeterminate prison term of twenty-five years to life on the sexual assault counts, both of which were class two felonies.

          [¶4] Lancaster now appeals.

         II. DNA Evidence

          [¶5] Lancaster contends that the trial court erred in denying his motion to suppress DNA evidence that he asserts was developed as a result of violations of his federal and state constitutional rights. We perceive no basis for reversal.

         A. Pertinent Facts

          [¶6] Although the record is not entirely clear, it appears that in October 2010, approximately one year after the sexual assault at issue, Lancaster was arrested on a warrant for the revocation of his deferred sentence on a prior misdemeanor harassment charge. That deferred sentence had been imposed as part of a plea bargain in a case in which Lancaster was initially facing felony charges. Apparently because Lancaster's criminal history erroneously indicated that he had been convicted of a felony in that case, the police took a buccal swab of Lancaster's mouth.

          [¶7] Several months later, Lancaster was again arrested, this time in connection with apparent traffic violations. The police took another buccal swab at that time.

          [¶8] Two days after the police took this swab, Lancaster was arrested on a felony robbery charge.

          [¶9] Subsequently, the above-described buccal swabs were tested, and the analysis of at least the first sample resulted in a match with the DNA profile of the man who had sexually assaulted the victim in this case. Based on this initial match, the police obtained an order pursuant to Crim. P. 41.1 to collect another DNA sample from Lancaster. They did so, and the analysis of this sample also resulted in a match with the DNA profile of the man who had sexually assaulted the victim.

          [¶10] Prior to trial, Lancaster filed a motion to suppress the DNA profile developed after the police had obtained the Crim. P. 41.1 order and collected the third DNA sample from him. He asserted that the ultimate match resulted from a DNA sample taken in violation of (1) Katie's Law, § § 16-23-101 to -105, C.R.S. 2014; (2) the Fourth Amendment of the United States Constitution; and (3) article II, section 7 of the Colorado Constitution.

          [¶11] After a hearing, the trial court denied this motion. Although the court found that the police had violated Katie's Law when they took the first two samples, it found no evidence of bad faith or malice and further concluded that the warrantless collection of Lancaster's DNA fell within the " special needs" exception to the warrant requirements of the United States and Colorado Constitutions.

         B. Discussion

          [¶12] When reviewing a trial court's order on a motion to suppress, we defer to the court's factual findings but review de novo its ultimate legal conclusion as to whether the defendant's constitutional rights were violated. People v. Brunsting, 2013 CO 55, ¶ 15, 307 P.3d 1073, 1078.

          [¶13] Section 16-23-103(1)(a) provides that an arresting law enforcement agency shall, as part of its booking process, collect a biological sample from any adult arrested on or after September 30, 2010 for a felony offense or for the investigation of a felony offense.

          [¶14] In addition, " [t]he Fourth Amendment to the United States Constitution and article II, § 7 of the Colorado Constitution protect against unreasonable searches and seizures." People v. Rossman, 140 P.3d 172, 174 (Colo.App. 2006). A cheek swab to obtain a DNA sample is a search, and a search without a warrant supported by probable cause is presumptively unreasonable unless it falls within one of the established exceptions to the warrant requirement. People v. Casillas, 2015 COA 15, ¶ 23, P.3d, , *8.

          [¶15] The so-called " special needs" exception is one such exception. Rossman, 140 P.3d at 174.

Under that exception, a warrant, probable cause, or even individualized suspicion of wrongdoing need not be shown where " special needs, beyond the normal need for law enforcement" exist, and the search or seizure is found to be " reasonable" after balancing the government's special need ...

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