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People v. Wambolt

Court of Appeals of Colorado, First Division

June 28, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Jason Lee Wambolt, Defendant-Appellant.

          Elbert County District Court No. 13CR66 Honorable Jeffrey K. Holmes, Judge

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

          Douglas K. Wilson, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          TAUBMAN JUDGE

         ¶ 1 What happens when someone repeatedly drinks, drives, and, as a result, loses his or her driver's license, and then drinks and drives again? This case presents two novel issues that call on us to answer this question. The issues are not novel because they have not arisen before; they are novel because they have arisen in a new context. In recent years the General Assembly has twice amended one applicable statute, and our appellate courts have issued multiple, sometimes inconsistent, decisions.

         ¶ 2 Addressing the issues presented here is more challenging because of the unusual procedures followed by the trial court. Defendant, Jason Lee Wambolt, was tried twice for multiple offenses, and the second trial was divided into two parts. Consequently, the two principal issues in this appeal concern Wambolt's right to be free from double jeopardy and whether two convictions merge. In a third issue, Wambolt challenges the trial court's denial of his motion to suppress certain evidence used against him.

         ¶ 3 We affirm in part, vacate in part, and remand with directions.

         I. Background

         ¶ 4 In November 2013, police in Agate, Colorado, were dispatched to respond to a potential menacing incident. The reporting party communicated that a man riding a motorcycle had chased him and threatened him, possibly with a weapon. When police arrived at the scene, Wambolt admitted that he had been the man riding the motorcycle. The officers observed that Wambolt appeared intoxicated, and he confessed that he had been drinking prior to riding the motorcycle.

         ¶ 5 Wambolt was eventually charged with aggravated driving after revocation prohibited (ADARP), driving under the influence (DUI), driving under restraint (DUR), and two counts of violating a civil protection order. He did not dispute that his driver's license had been revoked or that he had been deemed a habitual traffic offender. However, the defense's theories of the case were that Wambolt did not know that his driver's license had been previously revoked and, as to the DUI charge, that he drank only after he drove his motorcycle. At the first trial, the jury was instructed on the elements of driving after revocation prohibited (DARP) and given a special interrogatory verdict form on the ADARP charge. The jury returned guilty verdicts on DARP and DUR, but hung on the DUI charge, and thus did not complete the ADARP special interrogatory. At the second trial, Wambolt was convicted of driving while ability impaired (DWAI), and the second jury completed an interrogatory finding the People had proved ADARP. Ultimately, the trial court entered convictions on ADARP, DUR, and DWAI, and Wambolt later pleaded guilty to the protection order violations.

         ¶ 6 Wambolt appeals the judgment of conviction entered on the jury verdicts finding him guilty of ADARP, DUR, and DWAI. Specifically, he contends that (1) he was tried twice for the same offense in violation of double jeopardy protections; (2) the trial court plainly erred in entering convictions for DUR and DARP because those convictions should have merged; and (3) the trial court's erroneous denial of his motion to suppress requires reversal. We agree with his first contention and therefore vacate the conviction for ADARP. However, we disagree with his final two contentions and thus affirm in all other respects.

         II. Double Jeopardy

         ¶ 7 Wambolt contends that he was unconstitutionally tried twice for the same offense when, after the first jury did not complete the ADARP special interrogatory, the People retried him on that charge. We agree that the second prosecution was in violation of the Double Jeopardy Clauses of the United States and Colorado Constitutions and therefore vacate the ADARP conviction and remand for the trial court to reinstate the first jury's verdict.

         ¶ 8 The Double Jeopardy Clauses of the United States and Colorado Constitutions protect an accused against being twice placed in jeopardy for the same crime. U.S. Const. amends. V, XIV; Colo. Const. art. II, § 18. Axiomatically, the federal Double Jeopardy Clause "protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165 (1977) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Wambolt invokes both of these protections. We review double jeopardy claims de novo. People v. Frye, 2014 COA 141, ¶ 30, 356 P.3d 1000, 1006.

         ¶ 9 As we noted at the outset, this case presents a unique set of circumstances, both because of the unusual way in which the prosecution proceeded and because the relevant statutes and case law have changed over the course of the last few years. We will therefore set forth the facts in some detail, as well as the evolution of the law.

         A. The Trials

         ¶ 10 As noted, Wambolt was charged with ADARP under section 42-2-206(1)(b), C.R.S. 2013, along with DUI and DUR. Wambolt was first tried on these charges in July 2014.

         ¶ 11 At the beginning of voir dire, the trial court instructed the jury that the People had charged Wambolt with ADARP. However, in the final jury instructions, the jury was instructed that Wambolt was charged with DARP, not ADARP. The jury also received an elemental instruction on DARP, not ADARP.

         ¶ 12 Additionally, the jury was given a special interrogatory stating that it was to be completed only if the jury found Wambolt guilty of DARP and either DUI or DWAI.[1] There were then two possible options: first, "We, the jury, find that it has been proven beyond a reasonable doubt that the defendant committed the crimes of [DARP] AND either [DUI] or the lesser offense of [DWAI] as part of the same criminal episode"; and, second, "We, the jury, do not so find."

         ¶ 13 After deliberating for almost seven hours, the jury sent a note to the trial court stating that it had reached a verdict on the DARP and DUR charges, but could not reach a verdict as to the DUI charge. The jury did not complete the special interrogatory. The court declared a mistrial on the DUI offense.

         ¶ 14 After the jury was dismissed, the prosecutor argued that the jury had returned "only . . . half of one of the verdicts" because the jury had found Wambolt guilty of DARP, but not ADARP. The trial court asked the parties to address whether Wambolt could be retried on the ADARP charge. After a hearing, the trial court asked that the parties brief the issue.

         ¶ 15 In response, the People submitted a "Memorandum regarding operation of the same criminal episode penalty enhancer under C.R.S. § 42-2-206(1)(b)(I)(A) and (B)." The People argued that the aggravated portion of ADARP was a sentence enhancer, not a substantive element of the offense, and thus resubmitting the ADARP charge to the jury would not violate the Double Jeopardy Clauses. The People concluded, "There is only one offense: [DARP]." However, in the alternative, the People argued that even assuming DARP was a lesser included offense of ADARP, retrial on the ADARP charge was permissible because the jury hung on that count.

         ¶ 16 In reply, Wambolt argued that DARP was a lesser included offense of ADARP and that section 18-1-301(1)(a), C.R.S. 2017, precluded retrial on a greater offense after conviction of a lesser offense. However, Wambolt argued in the alternative that if the trial court permitted the People to retry the ADARP count, the second jury should be required to decide every element of the offense to protect his right to have a single tribunal decide that charge. See People v. Segovia, 196 P.3d 1126, 1133 (Colo. 2008) ("Double jeopardy prevents the government from repeatedly trying to obtain a conviction against an accused, but also protects a defendant's right to have a verdict returned by a particular jury.").

         ¶ 17 In a thorough bench ruling issued before the second trial, the trial court concluded that the enumerated aggravating offenses in section 42-2-206(1)(b)(I), C.R.S. 2013, established a sentence enhancer of DARP. It determined that Wambolt could be constitutionally retried on ADARP and announced that the second trial would be conducted in two phases. First, the jury would decide only the DUI charge. If it returned a guilty verdict, the same jury would then consider the ADARP charge, again via a special interrogatory. The trial court stated:

[T]he jury will not be asked to find guilt or not guilt as to DARP, but, rather, to make a finding with regard to the interrogatory. So they will be given the elements. They will be told that they must find beyond a reasonable doubt that the elements have been established for purposes of a determination that -- of a "yes" decision regarding the interrogatory, that is, there has been proof beyond a reasonable doubt the elements of DARP, of DUI, and that they were part of the same criminal proceeding. But the jury will not be asked to return a verdict, again, regarding the offense of DARP.

         ¶ 18 In October 2014, the second trial proceeded according to that bench ruling. During the first "phase," the jury found Wambolt guilty of DWAI, a lesser included offense of DUI. Then, the trial court revealed to the jury that it would consider a second charge, which the trial court described as "the offense of driving after revocation prohibited and driving with ability impaired as part of the same criminal episode."

         ¶ 19 Once again, the jury was not given an ADARP instruction. Instead, the jury was given an instruction listing the elements of DARP.[2] Additionally, the jury was given an interrogatory, again with two possible choices: first, "We, the jury, unanimously find that the prosecution has proven beyond a reasonable doubt that defendant committed all the elements of [DARP], as defined in [the elemental instruction], and that the prosecution has proven beyond a reasonable doubt that defendant committed [DARP] and [DWAI] as a part of the same criminal episode"; and, second, "We, the jury, do not so find." The jury checked the first line of the special interrogatory.

          ¶ 20 As a result, the trial court entered convictions for ADARP, DUR, and DWAI.

         B. Section 42-2-206

         ¶ 21 Section 42-2-206, the statute establishing DARP and ADARP, has been amended since Wambolt was charged and tried.

         ¶ 22 The definition of DARP has not changed: "Any person found to be an habitual offender, who operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect, commits a class 1 misdemeanor." § 42-2-206(1)(a)(I), C.R.S. 2017; see also § 42-2-206(1)(a)(I), C.R.S. 2013.

         ¶ 23 In contrast, the definition of ADARP has been amended. Prior to legislative amendments in 2015, the statute stated that a person committed ADARP "if he or she is found to be an habitual offender and thereafter operates a motor vehicle in this state while the revocation of the department prohibiting such operation is in effect and, as a part of the same criminal episode, also commits . . . DUI or DUI per se; [or] DWAI." § 42-2-206(1)(b)(I)(A)-(B), C.R.S. 2013. Under that version of the statute, ADARP was a class 6 felony. § 42-2-206(1)(b)(II), C.R.S. 2013.

         ¶ 24 However, subsections 206(1)(b)(I)(A) and (B) were repealed in 2015. See Ch. 262, sec. 4, § 42-2-206(1)(b), 2015 Colo. Sess. Laws 996. Thus, under the statute in effect today, Wambolt could not have been convicted of ADARP on the basis of the aggravating DWAI offense. ADARP is now a class 1 misdemeanor. § 42-2-206(1)(b)(II), C.R.S. 2017.

         ¶ 25 Additionally, a 2010 amendment to section 42-2-206 clarified that, if a defendant was convicted of both ADARP and the aggravating offense of DUI, DUI per se, or DWAI, the convictions should not merge. Ch. 258, sec. 3, § 42-2-206(1)(b), 2010 Colo. Sess. Laws 1158; see § 42-2-206(1)(b)(III), C.R.S. 2017. That provision superseded several decisions from divisions of this court that had held that the underlying aggravating offense should merge into an ADARP conviction. See People v. Valdez, 2014 COA 125, ¶¶ 28-32, 411 P.3d 94, 100-01 (summarizing cases). This provision was also amended in 2015 to address the repeal of section 42-2-206(1)(b)(I)(A) and (B). Ch. 262, sec. 4, § 42-2-206(1)(b)(III), 2015 Colo. Sess. Laws 996; see § 42-2-206(1)(b)(III)(A) ("If a defendant is convicted of [ADARP] based upon the commission of DUI, DUI per se, or DWAI . . . as that crime existed before August 5, 2015 . . . [t]he court shall convict and sentence the offender for each offense separately . . . .").

         C. Case Law

         ¶ 26 Just as the relevant statutory law has changed, so too has the relevant case law.

         ¶ 27 First, our appellate courts have disagreed whether the aggravating offenses set forth in ADARP are sentence enhancers to the offense of DARP or, in the alternative, whether they are elements of the offense of ADARP.

         ¶ 28 In People v. Wilson, a division of this court rejected the People's contention that the aggravating offenses establishing ADARP are "merely sentence enhancers" to the offense of DARP and instead held that section 42-2-206(1)(b) sets forth the elements of the separate crime of ADARP, which includes six enumerated aggravating offenses. 114 P.3d 19, 26 (Colo.App. 2004). Thus, the Wilson division concluded that the aggravating offenses listed in that subsection are essential elements of the crime of ADARP. Id.

         ¶ 29 In contrast, another division agreed with the People that the aggravating offenses were sentence enhancers of DARP. People v. Zubiate, 2013 COA 69, ¶ 40, 411 P.3d 757, 765, aff'd, 2017 CO 17, 390 P.3d 394. Specifically, in Zubiate, the division held that, because under the pre-2015 version of section 42-2-206 "the other driving offenses listed in section 42-2-206(1)(b)(I) raise[d] DARP's offense level, they [we]re sentence enhancers." Id. at ¶ 40, 411 P.3d at 765. The supreme court affirmed the Zubiate division's holding, but did not address whether DARP and ADARP were distinct offenses.[3]

         ¶ 30 Second, apart from the specific issue of whether DARP is a lesser included offense of ADARP, the case law has changed with regard to the test for whether one offense is a lesser included of another. In 2017, the supreme court decided a series of cases, including Zubiate, in an effort to clarify the statutory elements test. The test, as stated in Reyna-Abarca v. People, is as follows: "[A]n offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense." 2017 CO 15, ¶ 3, 390 P.3d 816, 818; see also People v. Rock, 2017 CO 84, ¶ 16, 402 P.3d 472, 478 (clarifying the meaning of "contains" as used in Reyna-Abarca), reh'g denied (Oct. 2, 2017).

         ¶ 31 Third, double jeopardy analysis from divisions of this court has also seen recent change. Two decisions are of particular relevance here. In People v. Aguilar, a division of this court held, as a matter of first impression, that the Double Jeopardy Clauses do "not bar retrial of a greater offense when a jury deadlocks on that charge but convicts on a lesser included offense." 2012 COA 181, ¶ 17, 317 P.3d 1255, 1259. More recently, in People v. Beller, the division concluded that the Double Jeopardy Clauses did not bar retrying a defendant on a felony murder charge when a first jury acquitted him of the predicate offenses of aggravated robbery, but hung on the felony murder count. 2016 COA 184, ¶ 2, 411 P.3d 1145, 1148. The Beller division relied on a "continuing jeopardy" theory, reasoning that "the greater and lesser included offenses were tried together under the same indictment, jeopardy terminated as to one of the offenses, but did not end on the charge sought to be retried." Id. at ¶ 24, 411 P.3d at 1151 (quoting United States v. Jose, 425 F.3d 1237, 1245 (9th Cir. 2005)). In so holding, the Beller division rejected ...


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