Moffat County District Court No. 11CR45 Honorable Michael A. O'Hara, III, Judge
Cynthia H. Coffman, Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Sean J. Lacefield, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, Mark Richard Wentling, appeals his judgment of conviction entered on a jury verdict finding him guilty of first degree criminal trespass with intent to commit motor vehicle theft under sections 18-4-502 and 18-4-409(4), C.R.S. 2015. He also appeals his presentence confinement credit (PSCC) award. We affirm the judgment of conviction for first degree criminal trespass, reverse the sentence in part, and remand to the trial court to correct the mittimus accordingly regarding PSCC.
¶ 2 On April 5, 2011, police officers arrested Wentling in Utah after finding him sleeping in a vehicle that had been reported as stolen in Colorado. The next day, Wentling was charged with multiple offenses in Colorado, including first degree criminal trespass with intent to commit motor vehicle theft. Three days later, Wentling was charged in Utah with unauthorized control of a vehicle for an extended time. He remained in custody in Utah and pleaded no contest to the Utah charge in May 2011. In June 2011, Wentling was sentenced by a Utah court to zero to five years in prison.
¶ 3 Wentling was transported from the Utah Department of Corrections to the Moffat County Jail in Colorado on October 11, 2011, pursuant to a detainer agreement between Colorado and Utah. In November 2011, Wentling's initial Colorado charges were amended to include two habitual criminal counts.
¶ 4 Following an initial trial in February 2012 that resulted in a mistrial, a jury convicted Wentling at his second trial in April 2012 of first degree criminal trespass with intent to commit motor vehicle theft and second degree trespass. On May 29, 2012, the trial court sentenced Wentling to six years in the custody of the Department of Corrections plus three years mandatory parole. The trial court awarded Wentling 112 days PSCC for his time in the Moffat County Jail from February 7, 2012 to May 29, 2012. Wentling filed a motion seeking eighty-nine days of additional PSCC, which the trial court denied.
¶ 5 Wentling raises four issues on appeal: (1) the evidence presented at trial was insufficient to convict him of first degree criminal trespass with intent to commit motor vehicle theft; (2) his Colorado prosecution violated section 18-1-303, C.R.S. 2015, because he had already been prosecuted in Utah under a law intended to prevent substantially the same harm; (3) he was denied equal protection of the law when he was subjected to a harsher punishment for first degree criminal trespass with intent to commit motor vehicle theft than punishment under attempted motor vehicle theft; and (4) the trial court incorrectly calculated his PSCC. We reject his first three assertions, but we agree with his fourth.
II. Sufficiency of Evidence
¶ 6 Wentling contends there was insufficient evidence to convict him of first degree criminal trespass with intent to commit motor vehicle theft. First, he contends the first degree criminal trespass statute's plain language requires the People to present evidence that he committed a crime inside the vehicle. Wentling argues that motor vehicle theft is not a crime committed inside the vehicle and, thus, the People did not present sufficient evidence to prove he entered the motor vehicle with the intent to commit a crime therein.
¶ 7 Second, Wentling contends that if the first degree criminal trespass statute is ambiguous, it does not apply in this case for three reasons: (1) to construe the statute as applying to the facts of this case would render part of it superfluous; (2) the People's application of the first degree criminal trespass statute here is contrary to the comprehensive motor vehicle theft statute; and (3) applying it in this case would be inconsistent with the statute's legislative history. We disagree.
A. Standard of Review
¶ 8 We review the record de novo to determine whether the evidence before the jury was sufficient in quality and quantity to sustain the conviction. Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005). In doing so, we consider "whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt." People v. Williams, 2012 COA 165, ¶ 34, 297 P.3d 1011, 1017 (citation omitted).
B. Applicable Law
¶ 9 Due process requires the prosecution to prove the existence of every element of an offense charged beyond a reasonable doubt. U.S. Const. amends. V, XIV; Colo. Const. art. II, § 25; People v. Duncan, 109 P.3d 1044, 1045 (Colo.App. 2004). Thus, a conviction based on a record containing insufficient evidence of an element of an offense violates a defendant's right to due process. Duncan, 109 P.3d at 1045.
¶ 10 In construing a statute, a reviewing court must give effect to the intent of the legislature. Gorman v. People, 19 P.3d 662, 665 (Colo. 2000). In determining that intent, a court should look first to the plain language of the statute. People v. Dist. Court, 713 P.2d 918, 921 (Colo. 1986). If the statute is unambiguous, the court should look no further. Mason v. People, 932 P.2d 1377, 1378 (Colo. 1997). Statutory construction principles should only be relied on when the statute is ambiguous. Grant v. People, 48 P.3d 543, 546 (Colo. 2002).
¶ 11 When looking at the plain language of the statute to determine legislative intent, a court should consider the plain and ordinary meaning of the words the legislature chose to use. People v. Banks, 9 P.3d 1125, 1127 (Colo. 2000); see also Griego v. People, 19 P.3d 1, 7 (Colo. 2001) (stating that words and phrases should be read in context and construed according to the rules of grammar and common usage); Vega v. People, 893 P.2d 107 (Colo. 1995) (asserting that words and phrases used are to be read in context and accorded their plain meanings). The statute should be read and considered as a whole to give consistent, harmonious, and sensible effect to all its parts. Dist. Court, 713 P.2d at 921.
¶ 12 Colorado's first degree criminal trespass statute provides that it is a class five felony for a person to enter "any motor vehicle with intent to commit a crime therein." § 18-4-502. Wentling was convicted of criminal trespass with the intent to commit motor vehicle theft. A person commits second degree aggravated motor vehicle theft if he or she knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception. § 18-4-409(4).
¶ 13 Wentling contends he was improperly prosecuted for first degree criminal trespass, an offense which was not intended to apply to the theft of motor vehicles. He contends that under the first degree criminal trespass statute's plain meaning, and even under the rules of statutory construction, the statute does not apply to him. We conclude there was sufficient evidence to convict Wentling of first degree criminal trespass under the plain meaning of the statute. Further, we conclude there was sufficient evidence that Wentling entered the motor vehicle with the intent to commit motor vehicle theft inside the vehicle.
¶ 14 First, we must construe the first degree criminal trespass statute. We conclude that the statutory language is clear. Therefore, we need not consider the legislative history cited by Wentling. Wentling argues that "therein, " an adverb, modifies the meaning of the verb "commit, " limiting the location of where the crime may occur to inside a motor vehicle. We agree. Therefore, based on the plain language of the first degree criminal trespass statute, a defendant must enter a motor vehicle with the intent to commit any crime inside of a motor vehicle. See People v. Steppan, 473 N.E.2d 1300, 1303-04 (Ill. 1985) (construing the inclusion of the word "therein" in a similar motor vehicle theft statute as requiring a defendant's intent to commit a felony to coincide with unauthorized entry, rather than requiring the defendant to intend to steal something within the motor vehicle). We disagree with Wentling's contention that this construction renders "therein" superfluous. "Therein" is still necessary under this construction because it limits the location of criminal activity relevant to the first degree criminal trespass offense.
¶ 15 The plain language of the criminal trespass statute states that "a" crime must be committed inside the vehicle. § 18-4-502. "A" is an indefinite article indicating that the noun it refers to is not particular, and it is "used as a function word before most singular nouns . . . when the individual in question is undetermined, unidentified, or unspecified." Webster's Third New International Dictionary Unabridged 1 (2002); see People v. Arzabala, 2012 COA 99, ¶ 27, 317 P.3d 1196, 1204; see also Brooks v. Zabka, 168 Colo. 265, 269, 450 P.2d 653, 655 (1969) ("[T]he definite article 'the' particularizes the subject which it precedes. It is a word of limitation as opposed to the indefinite or generalizing force of 'a' or 'an.'").
¶ 16 The legislature's use of an indefinite article in the plain language of the statute indicates its intent to generally proscribe crimes that accompany unlawful entry into a vehicle without any limitation to the category or type of crime. Thus, conceivably, motor vehicle theft is a crime that could accompany criminal trespass.
¶ 17 We also disagree with Wentling's contention that the application of the first degree criminal trespass statute to motor vehicle theft would be contrary to the comprehensive motor vehicle theft statute, section 18-4-409. Wentling contends the General Assembly could not have intended that criminal trespass apply to motor ...