County District Court No. 11CR447 Honorable Valerie J.
Cynthia H. Coffman, Attorney General, Joseph G. Michaels,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, James S.
Hardy, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Michael Floyd Trujillo, appeals his judgment of
conviction entered on a jury verdict finding him guilty of
one count of theft of more than $20, 000 and one count of
criminal mischief of $20, 000 or more. He also appeals his
sentence. We perceive no basis for reversing his convictions,
but remand for the trial court to make findings of fact
regarding the assessment of the costs of prosecution and to
reclassify his theft conviction as a class 4 felony.
2 In 2007, Trujillo began building a home, doing much of the
labor himself and initially using his own money to fund the
project. He later took out a construction loan from the
victim, a bank, for just under $255, 000. After construction
was completed on the house, Trujillo stopped making his
monthly loan payments. The bank declined to restructure the
loan and initiated foreclosure proceedings in September 2010.
3 Before the foreclosure sale, Trujillo removed or destroyed
property in the house, including kitchen cabinets,
countertops, interior and exterior doors, doorjambs and
casings, flooring, baseboards, light fixtures, bathroom
fixtures, the fireplace, handrails, the boiler, the air
conditioner, and the garage door. Because of this damage, the
house was appraised at $150, 000; however, the appraiser
estimated that if the house were in good repair, it would
have been worth $320, 000.
4 Trujillo was charged with defrauding a secured creditor,
theft of $20, 000 or more, but less than $100, 000, and
criminal mischief of $20, 000 or more, but less than $100,
000. The jury found him not guilty of defrauding a secured
creditor and guilty of theft and criminal mischief.
5 On appeal, Trujillo raises six contentions: (1) the trial
court erred in rejecting defense-tendered jury instructions;
(2) the trial court erred in allowing evidence of a prior
foreclosure against Trujillo; (3) prosecutorial misconduct
during direct examination of a witness and closing rebuttal
argument warrants reversal; (4) the trial court imposed an
illegal sentence of indeterminate probation; (5) the trial
court erred in awarding the People costs of prosecution; and
(6) an amendment to the theft statute applies to his
conviction. We perceive no basis for reversal with respect to
the first four contentions, but agree with Trujillo's
final two contentions. We therefore affirm the convictions
and the sentence in part but vacate the sentence in part and
remand with directions.
6 Trujillo asserts that the trial court erred in rejecting
various jury instructions regarding his theory of the case.
7 Throughout trial, the defense's theory of the case was
that Trujillo lacked the requisite intent to commit the
charged offenses because he believed that the property he
removed from the house belonged to him. The defense tendered
five jury instructions related to this theory of the case.
8 Trujillo's tendered jury instructions detailed property
law concepts. For example, the first tendered instruction
stated that "the person who has title to real property
is still the owner of the property even if there is a lien or
secured interest on the property." Another tendered
instruction defined "title, " "deed of trust,
" and "holder of a certificate of purchase."
One instruction described the lien theory detailed in section
38-35-117, C.R.S. 2017, and another instructed that title to
property "does not vest with the purchaser until eight
days after [a] foreclosure sale."
9 The trial court declined to give these instructions as
tendered. However, portions of the defense-tendered
instructions were included in a final definitional jury
instruction. The final instructions defined "deed of
trust" and stated that the title to property is
transferred to the holder of the certificate of purchase
eight days after a foreclosure sale. Though it rejected other
portions of the defense-tendered instructions, the trial
court permitted defense counsel to argue the issues raised in
the instructions during closing argument.
10 The defense also tendered an instruction which the trial
court modified and gave as a theory of the case instruction.
That instruction stated, "Trujillo contends that the
items removed from the home . . . were his; purchased by him
and installed by him. . . . Trujillo conten[d]s that the
items that he took and damaged were his sole property."
Standard of Review
11 We review jury instructions de novo to determine whether,
as a whole, they accurately informed the jury of the
governing law. Riley v. People, 266 P.3d 1089,
1092-93 (Colo. 2011). If the jury instructions properly
inform the jury of the law, the district court has
"broad discretion to determine the form and style of
jury instructions." Day v. Johnson, 255 P.3d
1064, 1067 (Colo. 2011). Accordingly, we review a trial
court's decision concerning a proposed jury instruction
for an abuse of discretion and will not disturb the ruling
unless it is manifestly arbitrary, unreasonable, or unfair.
12 When a defendant objects to the trial court's ruling
on a jury instruction, we review for nonconstitutional
harmless error and will thus affirm if "there is not a
reasonable probability that the error contributed to the
defendant's conviction." People v. Garcia,
28 P.3d 340, 344 (Colo. 2001) (quoting Salcedo v.
People, 999 P.2d 833, 841 (Colo. 2000)).
13 "[A]n instruction embodying a defendant's theory
of the case must be given by the trial court if the
record contains any evidence to support the theory."
People v. Nunez, 841 P.2d 261, 264 (Colo. 1992).
Moreover, a trial court has "an affirmative
obligation" to work with counsel to correct a tendered
theory of the case instruction "or to incorporate the
substance of such in an instruction drafted by the
court." Id. at 265; see also People v.
Tippett, 733 P.2d 1183, 1195 (Colo. 1987) (a trial
court may refuse to give an instruction already embodied in
14 In considering whether a jury was adequately informed of a
defendant's theory of the case, a reviewing court can
take into account whether defense counsel's closing
argument "fairly represented" the theory to the
jury. People v. Dore, 997 P.2d 1214, 1222 (Colo.App.
15 Trujillo contends that the trial court abused its
discretion in rejecting the tendered instructions. We
16 Trujillo asserts that the tendered instructions were
essential because they communicated his theory of the case.
However, the trial court instructed the jury on his theory of
the case in an instruction that clearly stated that he
believed the property he took from the house was "his
sole property." To the extent that the trial court had a
duty to work with the defense in crafting a proper theory of
defense instruction, we conclude that the trial court
fulfilled that duty here by giving an alternative theory of
the case instruction that encompassed Trujillo's tendered
instructions. See Nunez, 841 P.2d at 265 n.9.
Moreover, the trial court specifically stated that defense
counsel would be allowed to incorporate the property law
concepts into her closing argument, which defense counsel
17 Trujillo asserts that the instructions he tendered were
accurate statements of property law. In contrast, the People
argue that the instructions misstated the law as it applies
in criminal prosecutions for theft and criminal mischief.
Because we conclude that the trial court did not abuse its
discretion in drafting a theory of defense instruction that
encompassed the defense's tendered instructions, we do
not address whether the rejected instructions were accurate
statements of the law.
18 The jury instructions, as a whole, "fairly and
adequately cover[ed] the issues presented." People
v. Pahl, 169 P.3d 169, 183 (Colo.App. 2006). Thus, we
conclude that the trial court did not abuse its discretion in
rejecting in part the defense-tendered jury instructions.
Evidence of Prior Foreclosure
19 Trujillo next asserts that the trial court erred in
allowing the People to introduce evidence that another
property of his had been foreclosed. We disagree.
20 Before trial, Trujillo filed a motion to exclude evidence
of other acts or res gestae evidence. Trujillo's motion
addressed several categories of other acts evidence,
including evidence related to any "financial and/or
legal problems" unrelated to the charged offenses.
During a motions hearing, the People stated that they did not
intend to introduce any other acts or res gestae evidence. In
a written ruling, the trial court granted Trujillo's
motion to exclude evidence of his unrelated financial and
legal problems "unless the prosecution fe[lt] that the
'door ha[d] been opened.'" The trial court
further ordered that, if the People felt Trujillo introduced
evidence of his other financial and legal problems, the
People could request a bench conference during trial.
21 On the first day of trial, defense counsel stated that she
was withdrawing her motion to exclude other acts evidence
insofar as it pertained to evidence of Trujillo's
bankruptcy proceedings. During her opening statement, defense
counsel then mentioned those proceedings.
22 Later, the People called the bank's former vice
president as an expert witness. During direct examination,
the prosecutor asked the witness why the bank had declined to
restructure Trujillo's loan. The prosecutor also asked
about Trujillo's demeanor during interactions with the
bank. Trujillo objected. After a bench conference, the trial
court allowed the witness to testify on both matters.
23 Specifically, the witness testified that, during a
conversation about restructuring the loan, Trujillo
"seemed like he was very upset." The witness
recalled, "He got into [that] he had a piece of property
that [another bank] had foreclosed on and it sounded like
they had sold it for what [Trujillo] believed was a lot less,
leaving him a large deficiency balance."
24 During closing argument, the People alluded to the
witness's testimony and referred several times to
Trujillo's general animosity against banks.
Standard of Review
25 We review a trial court's decision to admit other acts
or res gestae evidence for an abuse of discretion. People
v. Jimenez, 217 P.3d 841, 846 (Colo.App. 2008). A court
abuses its discretion if its decision to admit such evidence
is manifestly arbitrary, unreasonable, or unfair.
26 We review a preserved claim of nonconstitutional error for
harmless error, reversing only if any error
"substantially influenced the verdict or affected the
fairness of the trial proceedings." Hagos v.
People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119
(quoting Tevlin v. People, 715 P.2d 338, 342 (Colo.
27 Evidence is relevant if it has "any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence." CRE 401.
Generally speaking, "[t]he Colorado Rules of Evidence
strongly favor the admission of relevant evidence."
People v. Brown, 2014 COA 155M-2, ¶ 22, 360
P.3d 167, 172. However, relevant evidence is nevertheless
inadmissible when "its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury." CRE 403. Similarly,
evidence of "other crimes, wrongs, or acts" is
inadmissible to prove a person's character "in order
to show that he acted in conformity therewith, " though
it may be admissible for other purposes, including proving
intent. CRE 404(b).
28 "Res gestae is a theory of relevance which
recognizes that certain evidence is relevant because of its
unique relationship to the charged crime." People v.
Greenlee, 200 P.3d 363, 368 (Colo. 2009). However,
"there is no need to consider an alternative theory of
relevance, such as res gestae, where ...