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People v. Trujillo

Court of Appeals of Colorado, First Division

February 8, 2018

The People of the State of Colorado, Plaintiff-Appellee,
Michael Floyd Trujillo, Defendant-Appellant.

         Mesa County District Court No. 11CR447 Honorable Valerie J. Robison, Judge

          Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          TAUBMAN, JUDGE

          ¶ 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.

         I. Background

          ¶ 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.

          II. Jury Instructions

         ¶ 6 Trujillo asserts that the trial court erred in rejecting various jury instructions regarding his theory of the case. We disagree.

         A. Additional Facts

         ¶ 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."

         B. 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. Id.

         ¶ 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)).

         C. Applicable Law

         ¶ 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 other instructions).

          ¶ 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. 1999).

         D. Analysis

         ¶ 15 Trujillo contends that the trial court abused its discretion in rejecting the tendered instructions. We disagree.

         ¶ 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 did.

         ¶ 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.

         III. 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.

          A. Additional Facts

         ¶ 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.

         B. 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. Id.

          ¶ 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. 1986)).

         C. Applicable Law

         ¶ 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 ...

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