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People v. Leverton

Court of Appeals of Colorado, Second Division

March 23, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Randall Eric Leverton, Defendant-Appellant.

         El Paso County District Court No. 13CR123 Honorable Robert L. Lowrey, Judge

          Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Katayoun A. Donnelly, Alternative Defense Counsel, Denver, Colorado, for Defendant-Appellant


          BERGER, JUDGE

         ¶ 1 A jury convicted defendant, Randall Eric Leverton, of theft by receiving and possession of drug paraphernalia. He appeals, contending the trial court erred by (1) joining the two offenses in a single trial and not allowing him to plead guilty to the paraphernalia charge before joining them and (2) admitting into evidence two witnesses' prior inconsistent statements. He also contends that the evidence is insufficient to support his convictions. We address and reject these contentions and affirm.

         I. Relevant Facts and Procedural History

         ¶ 2 On a cold evening, the victim started her car and left it running while she collected some belongings from inside her home. She returned to where the car had been parked a few minutes later and saw that the car was gone. She immediately reported the theft to the police.

         ¶ 3 A few days later, a police officer pulled over the stolen car. Leverton was seated in the front passenger side of the car, another man was driving, and two women were in the back seat. When asked who owned the car, Leverton told the officer that it belonged to his girlfriend, the victim. The victim later testified at trial that she did not know and had never met Leverton.

         ¶ 4 The officer searched the vehicle and discovered several small baggies which he suspected contained cocaine and methamphetamine. All four passengers were patted down, arrested, and transported to the police station.[1]

         ¶ 5 Leverton and the other man were transported in the same police vehicle. One of the transporting officers testified at trial that while the other man apparently slept during the drive to the police station, Leverton, who was handcuffed, "started moving around in the seat, kind of bending over and just acting not normal." After removing Leverton from the vehicle, the officer searched the back seat and discovered a type of pipe commonly used to smoke methamphetamine.

         ¶ 6 Based on the discovery of the pipe, Leverton was charged with possession of drug paraphernalia, a petty offense under section 18-18-428(2), C.R.S. 2016. Approximately two weeks later, in a separate case filed in the same judicial district, Leverton was charged with theft by receiving, a felony under section 18-4-410(1), (4), C.R.S. 2012.[2]

         ¶ 7 The day before trial on the felony theft charge, the prosecution moved to amend the complaint to join the paraphernalia charge and dismiss the petty offense case. Leverton's counsel objected, stating that his client intended to "enter a straight guilty plea" to the paraphernalia charge, and then move to dismiss the felony case "for failure to join." The court granted the prosecution's motion, stating that the prosecution's dismissal of the paraphernalia case and the amendment of the complaint in the felony case "in fact, does join [the petty offense case] into [the felony case]" and dismissed the petty offense case because "it doesn't have a count anymore." Leverton pleaded not guilty to both charges.

         ¶ 8 At trial, the two women in the back seat of the stolen car testified under subpoena. Both women testified that, due to drug use, they could not remember the events of that night, nor could they remember making any statements to the police. The prosecutor questioned both women based on oral statements they allegedly had made to the police following their arrests. For instance, the prosecutor asked one of the women, "Do you recall telling [the police] that Mr. Leverton had had the vehicle for several days and that someone had given it to him?"

         ¶ 9 Leverton's counsel objected to these questions because he argued that they "essentially just end up being testimony via the question itself, particularly when the witness has testified she has no recollection." The court ruled that the questions were proper impeachment questions. The witnesses' oral statements later were admitted into evidence over Leverton's objection through the testimony of the two police officers to whom the witnesses made their statements.

         ¶ 10 The jury convicted Leverton as charged and the trial court sentenced him to three years of probation and forty-eight hours of useful public service.

         II. Joinder of the Theft and Paraphernalia Charges

         ¶ 11 Leverton argues that the trial court erred when it rejected his guilty plea on the paraphernalia charge and then permitted the prosecution to add that charge to the complaint. He claims that the trial court's actions violated Colorado's mandatory joinder statute, section 18-1-408, C.R.S. 2016, as well as the Double Jeopardy Clauses of both the United States and Colorado Constitutions. We reject these arguments.

         ¶ 12 The Attorney General argues that because Leverton did not object to the procedure for joining the offenses, but only requested that the trial court accept his guilty plea prior to joining them, his claims should be reviewed only for plain error. We need not decide whether Leverton preserved these claims because we perceive no error, plain or otherwise. Cf. Marshall v. People, 2013 CO 51, ¶ 15 n.5 (declining to address whether the defendant preserved a Confrontation Clause challenge because there was no confrontation error).

         ¶ 13 The mandatory joinder statute "seeks to prevent vexatious prosecution and harassment of a defendant by a district attorney who initiates successive prosecutions for crimes which stem from the same criminal episode." People v. Talarico, 192 Colo. 445, 446, 560 P.2d 90, 91 (1977); see § 18-1-408(2). The statute requires that all such offenses known to the prosecutor which were committed in the same judicial district must be prosecuted by separate counts in a single prosecution. § 18-1-408(2). Any offense not joined "cannot thereafter be the basis of a subsequent prosecution[.]" § 18-1-408(2).

         ¶ 14 Whether a trial court properly joined multiple offenses under the mandatory joinder statute presents a mixed question of law and fact. See People v. Marshall, 2014 COA 42, ¶ 19 (applying the "mixed question of law and fact" standard of review to the question whether a trial court properly dismissed a criminal case under the mandatory joinder statute). The trial court's interpretation of the joinder statute is a question of law we review de novo, People v. Garcia, 2016 COA 124, ¶ 6, but we defer to factual findings supported by the record, People v. Marshall, ¶ 19.

         ¶ 15 Leverton argues that the trial court erred in refusing to accept his guilty plea in the paraphernalia case and in granting the prosecution's motion to amend the theft complaint because the result was that he was effectively charged in two separate cases with the same offense. He insists that "the only way the prosecution could go forward with charging [him] for both charges was to file a motion to join the two cases before the trial." (Emphasis added.)

         ¶ 16 We conclude, as did the trial court, that while the prosecution's motion was styled as a motion to amend, it was effectively a motion to join the two offenses. In Jeffrey v. Dist. Court, 626 P.2d 631, 638-39 (Colo. 1981), the supreme court held that "section 18-1-408(2) does not prohibit the court from permitting the district attorney to add to a criminal information other counts that arise from the same criminal episode as the original count so long as the additional counts are filed prior to the jeopardy stage of the prosecution." That holding is dispositive here; the prosecution moved to join the offenses prior to Leverton's attempt to plead guilty to the paraphernalia charge. See Jeffrey, 626 P.2d at 636.

         ¶ 17 Moreover, irrespective of whether the procedure utilized by the court complied strictly with the mandatory joinder statute, it nevertheless met the statute's purpose of preventing successive prosecutions. Leverton points to no unfair prejudice resulting from the procedure used.

         ¶ 18 The court also did not abuse its discretion in rejecting Leverton's guilty plea. Trial courts have discretion to accept or to reject a guilty plea because "[t]here is no absolute right to have a guilty plea accepted." People v. Jasper, 17 P.3d 807, 812 (Colo. 2001) (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)).

         ¶ 19 Had the court accepted Leverton's guilty plea on the paraphernalia charge prior to joining the two offenses, the mandatory joinder statute may have prohibited prosecution of the felony theft charge. Indeed, Leverton expressly sought to plead guilty to the paraphernalia charge - a petty offense - for the purpose of preventing prosecution of the felony charge. While neither this court nor the supreme court has addressed such an attempt to manipulate the criminal justice system to escape additional charges, courts in other jurisdictions have squarely rejected it.

         ¶ 20 In State v. Turner, 980 P.2d 1188, 1190 (Utah Ct. App. 1998), the Utah Court of Appeals held that the trial court abused its discretion when it accepted the defendant's guilty plea on a traffic violation because doing so effectively nullified the state's right to prosecute the defendant on the more serious charge of negligent homicide.

         ¶ 21 The Wisconsin Supreme Court similarly held that the trial court did not err in rejecting a defendant's guilty plea when the defendant intended to "create a situation of double jeopardy" to protect himself from additional ...

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