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People v. Jacobson

Court of Appeals of Colorado, Fourth Division

July 13, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Sandra L. Jacobson, Defendant-Appellant.

         City and County of Denver District Court No. 09CR510 Honorable Robert L. McGahey, Jr., Judge

          Cynthia H. Coffman, Attorney General, Rebecca A. Jones, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          WEBB, JUDGE

         ¶ 1 The general background appears in People v. Jacobson, 2014 COA 149 (Jacobson I), which reversed defendant's conviction for failure to poll the jury about exposure to extraneous, prejudicial information. In People v. Jacobson, 2017 CO 28 (Jacobson II), the supreme court reversed Jacobson I and remanded the case to us, albeit without direction.

         ¶ 2 Before our mandate was issued, defendant, Sandra L. Jacobson, asked us to decide two issues that had not been resolved in Jacobson I. She correctly pointed out that either of these issues could lead to reversal of the judgment of conviction entered on jury verdicts finding her guilty of vehicular homicide, driving under the influence (DUI), and other related charges, arising from a collision between her truck and a taxi cab on Pena Boulevard.

         ¶ 3 We granted her request but now affirm the judgment of conviction.

         I. The Trial Court Did Not Err in Failing Sua Sponte to Instruct the Jury on the Statutory DUI Affirmative Defense of Having Consumed Alcohol Between the Time Defendant Stopped Driving and the Blood Alcohol Content (BAC) Testing Occurred

         A. Additional Background

         ¶ 4 Defendant testified at trial. She described herself as having been "stone cold sober" when the accident occurred at about 10:30 a.m. But she said that on arrival at the Denver International Airport's cargo terminal some fifteen minutes later, she drank a Vitamin Water bottle that contained one-half 99 proof schnapps.

         ¶ 5 Two police officers contacted defendant at 10:58 a.m. Neither noticed any indicia of alcohol intoxication. Although defendant remained in police custody and interacted with other officers, not until about 3:00 p.m. did an officer notice bloodshot, watery eyes, and slurred speech. This officer administered a roadside sobriety test, which defendant failed. Then he took her to a hospital for a blood draw.

         ¶ 6 Samples were taken at 3:55 p.m., 5:00 p.m., and 6:01 p.m. The test results showed that her BAC was .164, .143, and .121, respectively. Based on these results, the prosecution presented expert testimony that defendant's BAC had been .274 at the time of the accident.

         ¶ 7 Defense counsel did not request the trial court to instruct the jury on the DUI affirmative defense of having consumed alcohol between the time that she stopped driving and when the testing occurred.

         B. Standard of Review and Law

         ¶ 8 Where a defendant did not request an affirmative defense instruction, review is limited to plain error. See, e.g., People v. Griffin, 224 P.3d 292, 298 (Colo. App. 2009). Plain error permits an appellate court "to correct particularly egregious errors." Wilson v. People, 743 P.2d 415, 420 (Colo. 1987). The error must be "'so clear-cut, so obvious,' a trial judge should be able to avoid it without benefit of objection." People v. Ujaama, 2012 COA 36, ¶ 42 (quoting People v. Taylor, 159 P.3d 730, 738 (Colo. App. 2006)).

         ¶ 9 Even then, an appellate court will reverse only if a defendant shows "that the court committed an obvious and substantial error that undermined the fundamental fairness of the trial so as to cast serious doubt on the reliability of the judgment of conviction." Griffin, 224 P.3d at 298. To be sure, reversals under plain error "must be rare to maintain adequate motivation among trial participants to seek a fair and accurate trial the first time." Hagos v. People, 2012 CO 63, ¶ 23.

         ¶ 10 "We review de novo the question of whether a jury instruction accurately informed the jury of the governing law." People v. Carbajal, 2014 CO 60, ¶ 10. "It is the duty of the trial court to 'correctly instruct the jury on all matters of law for which there is sufficient evidence to support giving instructions.'" Id. (quoting Cassels v. People, 92 P.3d 951, 955 (Colo. 2004)).

         ¶ 11 Section 42-4-1301(1)(a), C.R.S. 2016, defines DUI. According to section 42-4-1301(2)(a),

if a defendant presents some credible evidence, that the defendant consumed alcohol between the time that the defendant stopped driving and the time that testing occurred, such issue shall be an affirmative defense, and the prosecution must establish beyond a reasonable doubt that the minimum 0.08 blood or breath alcohol content required in this paragraph (a) was reached as a result of alcohol consumed by the defendant before the defendant stopped driving.

(Emphasis added.) The parties have not cited a case, nor have we found one, interpreting this language.

         ¶ 12 Despite this dearth of precedent, the following uncontroverted authorities are informative.

. "[P]roof of vehicular homicide under section 18-3-106(1)(b)(I) required proof that defendant operated a vehicle while under the influence of alcohol or drugs, or a combination thereof." People v. Grassi, 192 P.3d 496, 500 (Colo. App. 2008).
. "[T]o present an affirmative defense for jury consideration, the defendant must present 'some credible evidence' on the issue involving the claimed defense." People v. Garcia, 113 P.3d 775, 783-84 (Colo. 2005) (citing § 18-1-407, C.R.S. 2016).
. Whether a defendant has met this burden is a question of law, subject to de novo review. Id.
. "Whatever questions may remain in federal law concerning precisely when an affirmative defense 'controverts,' or 'does negate' an element of an offense, long before the federal constitution was construed to impose limitations on the common law rule requiring criminal defendants to prove affirmative defenses, we in this jurisdiction interpreted the state due process clause to do so." Montoya v. People, 2017 CO 40, ¶ 24.

         ¶ 13 On this much, the parties largely agree. As to the intersection between plain error and omission of a statutory affirmative defense, however, they differ. But we decline to resolve that difference because we conclude that the trial court did not err in failing sua sponte to instruct on the statutory affirmative defense.

         C. Discussion

         ¶ 14 To begin, the Attorney General asserts that defendant invited any error. The sole bases for this assertion are defense counsel's request for "an affirmative defense instruction based on intervening cause," which was not given, and his later statement to the trial court that he did not request any further instructions. But the possibility of instructing on the statutory affirmative defense had never been discussed. Without more, we cannot apply invited error. See People v. Stewart, 55 P.3d 107, 119 (Colo. 2002) (holding, where defense counsel had tendered one instruction but not another, "a nontactical instructional omission generally should be reviewed for plain error").

         ¶ 15 The Attorney General does not dispute that defendant presented sufficient evidence to warrant an instruction on the affirmative defense. And with good reason. The burden to produce sufficient evidence is "exceedingly low," making preclusion of an affirmative defense appropriate only when there is "simply no evidence . . . in th[e] record." People v. Platt, 170 P.3d 802, 806 (Colo. App. 2007), aff'd, 201 P.3d 545 (Colo. 2009). The "scintilla of evidence" standard is so low that "the evidence necessary to justify an affirmative defense instruction may come solely from the defendant's testimony, even if the evidence is improbable." People v. Johnson, 2013 COA 122, ¶ 35. ¶ 16 Instead, according to the Attorney General, "by proving the elements of vehicular homicide (DUI) beyond a reasonable doubt, the prosecution also disproved the affirmative defense beyond a ...


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