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People v. Stellabotte

Court of Appeals of Colorado, Division I

July 14, 2016

The People of the State of Colorado, Plaintiff-Appellee
v.
John Arthur Stellabotte, Defendant-Appellant.

         El Paso County District Court No. 12CR3669 Honorable Thomas L. Kennedy, Judge

          Cynthia H. Coffman, Attorney General, Patricia R. Van Horn, Senior Assistant Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Lynn C. Hartfield, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

          OPINION

          AUBMAN JUDGE

         ¶ 1 Defendant, John Arthur Stellabotte, appeals the judgment of conviction entered after a jury verdict finding him guilty of one count of aggravated motor vehicle theft, two counts of felony theft, and one count of misdemeanor theft. He also appeals his sentence, as enhanced by three habitual criminal counts. We affirm the conviction, vacate the sentences for felony theft, affirm the other sentences, and remand for resentencing on the felony theft convictions.

         I. Background

         ¶ 2 Stellabotte, owner of J&J Towing, was charged with six counts of first degree aggravated motor vehicle theft, under section 18-4-409(2) and (3)(a), C.R.S. 2015; four counts of theft, under section 18-4-401(1), C.R.S. 2015; and five habitual criminal counts pursuant to section 18-1.3-801, C.R.S. 2015. The counts related to J&J towing five vehicles. A jury convicted Stellabotte of one count of aggravated motor vehicle theft, a class 4 felony; two counts of theft, class 4 felonies; and one count of theft, a class 2 misdemeanor relating to two tows - the B.W. and P.H. tows.

         A. The B.W. Tow

         ¶ 3 In June 2012, B.W. parked her car at an apartment complex. The following morning, her car was missing. A sign in the parking lot stated that cars without parking permits would be towed by J&J Towing. B.W., whose car did not have a parking permit sticker, called J&J to recover her car, but the company stated that it did not have it. B.W. reported her car stolen.

         ¶ 4 Five days later, J&J towed the car to a police station. Stellabotte said that J&J had notified the police of the initial tow on June 8, as required by state towing regulations. The officer, however, could not find such a notification.

         ¶ 5 J&J initially requested that B.W. pay $215 to release her car but eventually returned it to her without her making any payment. However, several days later, Stellabotte told B.W. that he would put a lien on her car and tow it again if she did not pay him the money. The next day, he towed B.W.'s car, which was parked on a public street across from her house. Stellabotte refused to release the car to B.W. until she paid him $498.50, which she did. She noticed damage to her car, and Stellabotte said if she did not sign a release form he would charge her another $200, so she signed the form.

         ¶ 6 Teresa Hill, the apartment complex property manager, testified that rules in place for the property required license plate stickers indicating that any parked car belonged to a resident.[1] As manager, she entered into a contract with J&J, through an employee named James Ward.[2] The complex permitted J&J to tow cars without the proper stickers without first contacting management at the apartment complex.

         ¶ 7 B.W. reported J&J to the Colorado Public Utilities Commission (PUC).

         B. The P.H. Tow

         ¶ 8 In July 2012, K.S. parked a truck, registered to her father, P.H., in the parking lot of a shopping mall, where she worked at a yogurt shop. She arranged for P.H. to pick up the truck the following day, but when he arrived to pick up the truck, it was missing.

          ¶ 9 K.S.'s mother, R.H., and P.H. contacted Griffis-Blessing, the company they believed to be the property manager for the mall. Griffis-Blessing could not provide them with any information about whether the truck had been towed, but the family later received an unsigned letter from J&J, which advised them that J&J had towed the truck. At the time the truck was towed, its registration had expired. P.H. paid $583 to retrieve the truck.

         ¶ 10 R.H. requested a refund from J&J after Griffis-Blessing advised her that it had not authorized the tow. However, Ward advised her that she could only claim her refund if she signed a letter of final settlement, stating that the refund settled all outstanding amounts and that R.H. would "not slander or speak of this matter to any partys [sic] outside of this matter, " including the PUC. When she refused to sign the acknowledgment, Ward called Stellabotte, who reiterated that if R.H. refused to sign the agreement, he would not give her a refund.

         ¶ 11 Kelly Clay, a property manager who worked for Griffis-Blessing, testified that she was unaware of any towing contract with J&J for the portion of the shopping mall that she managed and that she had not authorized the tow of P.H.'s truck. She stated that a different property management company managed the property where the yogurt shop was located.[3]

         C. PUC Investigation & Trial

         ¶12 Following B.W.'s complaint, Anthony Cummings, an investigator with the PUC, spoke with Ward, who provided towing invoices for both B.W. tows. Cummings determined that the documents did not comply with PUC regulations. Specifically, the invoices lacked authorizing signatures, a release date, and a specific rate statement, and they contained an incorrect address for the business. According to Cummings, these deficiencies rendered the towing contracts invalid and meant that J&J was not authorized to collect the $493 that B.W. had paid to have her car released.

         ¶ 13 Cummings found similar PUC violations regarding P.H.'s tow. Ward was unable to provide a written towing contract for the shopping mall property. Ward claimed that "S.R., " which stood for Sean Reilly, had authorized the tow because his initials appeared on the towing invoice. Reilly, the former leasing agent for the shopping mall, testified that his responsibilities did not include authorizing tows from the property. He denied authorizing the tow of the truck.

         ¶ 14 On August 22, 2014, after a trial and jury verdict, the court adjudicated Stellabotte a habitual criminal for convictions on three counts ― a 2005 aggravated motor vehicle theft, a 2003 attempted aggravated motor vehicle theft, and felony menacing in 1996.

         ¶ 15 In accordance with the habitual criminal statute, the court quadrupled the maximum sentencing ranges of the felony convictions, resulting in twenty-four-year sentences for each of the three felony convictions. The court sentenced Stellabotte to one year for the misdemeanor theft conviction. The sentences all ran concurrently.

         ¶ 16 Stellabotte raises four contentions on appeal: (1) the trial court erred in instructing the jury on aggravated motor vehicle theft; (2) the court erred in providing the jury with a dictionary definition of the term "authorization"; (3) the twenty-four-year sentences imposed for Stellabotte's two felony theft convictions should be halved because of new legislation reducing the severity of those offenses; and (4) the twenty-four-year sentences imposed for Stellabotte's three habitual criminal counts are grossly disproportionate to the nature and severity of the offenses. We agree with Stellabotte's third contention that he should benefit from the General Assembly's amendatory legislation to reduce the severity of felony theft offenses. However, we disagree with his other contentions.

         II. Jury Instruction

         ¶ 17 Stellabotte contends that the trial court erred in instructing the jury on aggravated motor vehicle theft, where, in contrast to the theft instruction, the aggravated motor vehicle theft instruction did not convey that he had to act knowingly without authorization. We disagree.

         A. Standard of Review

         ¶ 18 We apply a two-tier standard of review to jury instructions. First, we review de novo the jury instructions as a whole to determine whether the instructions accurately informed the jury of the governing law. People v. Lucas, 232 P.3d 155, 162 (Colo.App. 2009). Second, if the trial court correctly informed the jury of the governing law, we review the court's formulation of the instructions for an abuse of discretion. People v. Pahl, 169 P.3d 169, 183 (Colo.App. 2006). A court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002), and when it misconstrues or misapplies the law, People v. Henson, 2013 COA 36, ¶ 9, 307 P.3d 1135, 1136.

         B. Applicable Law

         ¶ 19 Under section 18-4-409(2), a person commits first 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."

         ¶ 20 The culpable mental state, "knowingly, " applies not only to a defendant's exercise of control over the vehicle, but also to his or her awareness of lack of authority. People v. Bornman, 953 P.2d 952, 954 (Colo.App. 1997). When a mental state is listed as a stand-alone element, it applies to the succeeding elements. See People v. Chase, 2013 COA 27, ¶ 62, ____ P.3d___, ____ ("Knowingly" is set out "as a standalone element, thereby indicating that it applied to all of the subsequent elements of the offense."); People v. Stephens, 837 P.2d 231, 234 (Colo.App. 1992) (stating that "knowingly, " listed as separate element, applied to succeeding elements, including the "without authorization" element).

         C. Analysis

         ¶ 21 The court instructed the jury that the elements of first degree aggravated motor vehicle theft were that Stellabotte:

1. In the State of Colorado, at or about the date and place charged,
2. knowingly,
3. obtained and exercised control over the motor ...

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