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People v. Boulden

Court of Appeals of Colorado, Sixth Division

July 14, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Demetre Cardell Boulden, Defendant-Appellant.

         Adams County District Court No. 14CR1195 Honorable John E. Popovich, Judge

          Cynthia H. Coffman, Attorney General, Molly E. McNab, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Sarah Quinn, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          MILLER JUDGE

         ¶ 1 Defendant, Demetre Cardell Boulden, appeals the trial court's entry of judgment of conviction upon a jury verdict finding him guilty of driving under restraint. We conclude that under People v. Ellison, 14 P.3d 1034 (Colo. 2000), the mere mailing of the notice of revocation is not sufficient to establish the knowledge element of the offense of driving under restraint. We therefore vacate the judgment and sentence and remand with directions.

         I. Background

         ¶ 2 A police officer pulled defendant over for driving a car with a broken headlight. When the officer checked with dispatch on the license plate number of the car, he learned that the car had been reported as stolen. Defendant's driving record indicated that his driver's license had been suspended seven months before he was pulled over.

         ¶ 3 Defendant was charged with second degree aggravated motor vehicle theft and driving under restraint. Following a jury trial, he was convicted of driving under restraint and acquitted of motor vehicle theft.

         II. Sufficiency of the Evidence

         ¶ 4 Defendant contends that there was insufficient evidence to find defendant guilty of driving under restraint. We agree.

         A. Standard of Review

         ¶ 5 The People contend that defendant did not preserve this argument and that we should accordingly apply plain error review. In People v. McCoy, 2015 COA 76M, ¶ 6, a division of this court concluded that sufficiency of the evidence claims are not subject to plain error review. We agree. In any event, defendant moved for judgment of acquittal at the close of the prosecution's case-in-chief based on insufficiency of the evidence of defendant's mental state. The trial court denied the motion, expressly finding that there was sufficient evidence of defendant's knowledge for purposes of the driving under restraint charge. Where a defendant raises an issue sufficiently to give the trial court an opportunity to rule on the claim raised on appeal, we conclude the claim is sufficiently preserved. See People v. Rhea, 2014 COA 60, ¶ 55. Accordingly, plain error review does not apply.

         ¶ 6 The evidence is sufficient if, after viewing the evidence in the light most favorable to the prosecution, a rational jury could have found the essential elements of the crime beyond a ...


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