People v. Bossert, Nos. 83SA400

Docket NºNos. 83SA400
Citation722 P.2d 998
Case DateJune 16, 1986
CourtSupreme Court of Colorado

Page 998

722 P.2d 998
PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
John William BOSSERT, Defendant-Appellant. (Two Cases).
Nos. 83SA400, 84SA69.
Supreme Court of Colorado,
En Banc.
June 16, 1986.
Rehearing Denied Aug. 25, 1986.

Page 1000

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Wade H. Eldridge, Denver, for defendant-appellant.

KIRSHBAUM, Justice.

In this consolidated appellate proceeding the defendant, John William Bossert, appeals his convictions by jury in three cases of several counts of unlawful possession of altered motorcycle parts, in violation of section 42-5-102(2), 17 C.R.S. (1981). 1 Two of the cases, docketed at trial as 82CR158 and 82CR449, were tried together. 2 The appeal of that consolidated proceeding, in which the defendant was convicted of seven separate offenses, is denominated 84SA69. The appeal of the third case, docketed at trial as 82CR157, is denominated 83SA400. Because both appeals challenge the constitutionality of section 42-5-102(2), we have consolidated them for review. 3

Pending appeal, the cases were remanded to the trial court, upon the defendant's request, to permit the defendant to file a motion pursuant to Crim. P. 35 challenging his convictions in 82CR449 for failure to join that case with 82CR157. The trial court granted the motion in part and ordered concurrent sentences in all three cases. Both the defendant and the People appeal that ruling.

We affirm the judgments of conviction in both cases, and disapprove the trial court's order imposing concurrent sentences.

I

Case 83SA400--trial court case 82CR157--arose from the defendant's sale of a motorcycle

Page 1001

engine on April 12, 1981, to Jeffrey Hastings. The bill of sale contained a notation written by the defendant that one part of the engine--a crank case--never had a serial number. Several of Hastings' friends informed him that the crank case contained what appeared to be an obliterated identification number. In October of 1981, Hastings informed Lakewood police officer Detective Anthony Bogacz of the April transaction. An information charging the defendant with a single count of unlawful possession of an altered motor vehicle part was filed in November of 1981, and a jury found the defendant guilty of that charge on May 5, 1983.

The defendant's trial attorney filed a motion for new trial on behalf of the defendant asserting, among other grounds, that section 42-5-102(2) was unconstitutional. The defendant, acting pro se, also filed a motion for new trial, asserting that he had received ineffective assistance of counsel.

The trial court denied both new trial motions, and the defendant appealed. Thereafter, while this case was on appeal, the defendant filed three separate motions for relief pursuant to Crim. P. 35 in the trial court, which motions were denied by the trial court. 4

The defendant raises three grounds for reversal of his conviction in 82CR157: section 42-5-102 is unconstitutionally vague; the defendant was denied effective assistance of counsel; and section 42-5-102 permits an unconstitutional delegation of power.

II

In case 84SA69, the defendant appeals seven convictions of unlawful possession of altered motor vehicle parts in the consolidated trial of cases 82CR158 and 82CR449. Case 82CR158 arose when the defendant filed an application with the Department of Motor Vehicles (the Department) for a bond title on a homemade motorcycle in June of 1981. 5 One of the parts to be used in the construction of the motorcycle, as listed on the application, was a part from a motorcycle previously reported to the Department as having been stolen. 6 The Department referred the matter to Colorado State Patrol Officer Lloyd Stewart who, after further investigation, obtained a search warrant for the motorcycle.

On June 19, 1981, Stewart executed the warrant and seized an engine later identified as the engine from the allegedly stolen motorcycle. Stewart also seized a motorcycle frame that generally matched the description of the frame of the allegedly stolen

Page 1002

motorcycle; however, the identification number on the frame had been obliterated, making positive identification impossible. As a result of these events, an information was filed in December 1981, charging the defendant with one count of unlawful possession of an altered motor vehicle part.

Case number 82CR449, initially containing three counts of felony theft by receiving 7 and four counts of unlawful possession of altered motor vehicle parts, 8 was filed on December 18, 1982. This case arose as a result of a search of the defendant's property on January 14, 1982, which search was conducted pursuant to a warrant obtained by officers who initially sought to execute a court order issued the previous day in a civil nuisance action filed by the People against the defendant. 9 In the course of inventorying the defendant's property, two agents of the Lakewood police department observed various motorcycle parts with what appeared to be altered or obliterated identification numbers. The agents left the premises, obtained a search warrant, returned, executed the search warrant and seized the motorcycle parts.

The defendant filed several motions to suppress evidence in cases 82CR158 and 82CR449, which motions were denied by the trial court. The defendant also filed three motions to dismiss case 82CR158, which motions asserted that section 42-5-102(2) was unconstitutional on grounds of vagueness, overbreadth, improper delegation of power and denial of equal protection of the law. The trial court denied these motions. On December 20, 1983, the jury in these consolidated proceedings returned a verdict finding the defendant guilty of the single count of unlawful possession of altered automobile parts charged in 82CR158, not guilty of the theft by receiving count in 82CR449, not guilty of one count of unlawful possession of altered motor vehicle parts in 82CR449, and guilty of six counts of unlawful possession of motor vehicle parts in 82CR449.

The defendant asserts that the June 1981 search in 82CR158 and the January 1982 search in 82CR449 violated his constitutional rights; that section 42-5-102(2) is unconstitutionally vague and overbroad and violates his constitutional guarantee of equal protection of the law; that the trial courts committed numerous errors in rulings on motions filed by the defendant with respect to suppression of evidence, disqualification of a potential juror, recusal of a trial judge, entrapment, a mistake of law defense; and that the evidence was insufficient to support his convictions. We reject these arguments.

III

Because both appeals challenge the constitutionality of section 42-5-102(2), albeit on different grounds, we will address the constitutional issues first. The guidelines for constitutional review of a statute are well-settled. Statutes are presumed to be constitutional, and a defendant challenging the constitutionality of a statute bears a heavy burden of proving the statute unconstitutional beyond a reasonable doubt. People v. Edmonds, 195 Colo. 358, 578 P.2d 655 (1978); People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978).

A

In 83SA400, the defendant asserts that section 42-5-102(2) is unconstitutionally vague, despite our decision to the contrary in People v. Sequin, 199 Colo. 381,

Page 1003

609 P.2d 622 (1980). 10 The defendant raises the identical issue addressed in Sequin-- that section 42-5-102(2) is unconstitutionally vague because it proscribes conduct which is allowed under section 42-6-117. In Sequin we held that section 42-5-102(2) prohibits possession of an automobile part whose identification number has been intentionally altered, 11 whereas section 42-6-117 permits possession of automobile parts whose numbers have been accidentally altered. We adhere to our decision in Sequin, which is dispositive of this issue. See People v. Rautenkranz, 641 P.2d 317 (Colo.App.1982).
B

In 84SA69, the defendant contends that section 42-5-102(2) imposes a higher penalty for the same conduct proscribed by section 18-5-305, 8 C.R.S. (1978), and, therefore, violates his right to equal protection of the law established by the fourteenth amendment to the United States Constitution. 12 Different statutes proscribing the same criminal conduct with disparate criminal sanctions violate equal protection principles. E.g., People v. Marcy, 628 P.2d 69 (Colo.1981) (and cases cited therein). However, the two statutes here at issue proscribe different, albeit related, criminal conduct. See People ex rel. Russel v. District Court, 185 Colo. 78, 521 P.2d 1254 (1974) (second degree murder and first degree extreme indifference murder proscribe different conduct when second degree murder is a specific intent crime and extreme indifference murder is a general intent crime). Section 18-5-305 prohibits the obscuring of an identification number of any article with intent to hinder or prevent identification of the article, and classifies such offense as a class 3 misdemeanor. Section 42-5-102(2) prohibits the alteration of identification numbers on automobile parts and classifies such offense as a class 4 felony. The elements of the crime proscribed by section 18-5-305 are obscuring the identification number of an article, or selling or offering for sale in the course of business an article with knowledge that the identification number is obscured, with the intent to hinder or prevent identification of the article. Although section 18-5-305(4) provides that possession of an article with an obscured identification number is prima facie evidence of the intent to hinder identification and of knowledge of the obscured identification number, possession is not an element of the misdemeanor defined by this statute. Furthermore, section 18-5-305 requires proof of an intent to hinder or prevent...

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52 practice notes
  • Horton v. Suthers, No. 00SA58.
    • United States
    • Colorado Supreme Court of Colorado
    • January 22, 2002
    ...for an order that affects the judgment, in that case a motion under Crim. P. 35(b) for reduction of sentence); see also People v. Bossert, 722 P.2d 998, 1001 n. 4 (Colo.1986) (trial court lacked jurisdiction to rule upon the defendant's Crim. P. 35(c) motions because they were filed after t......
  • People v. Kadell, Court of Appeals No. 13CA2021
    • United States
    • Colorado Court of Appeals of Colorado
    • October 5, 2017
    ...draw the court's attention to the issue, it's not preserved. Martinez v. People , 2015 CO 16, ¶¶ 13-14, 344 P.3d 862 ; People v. Bossert , 722 P.2d 998, 1010 (Colo. 1986) ; People v. Galang , 2016 COA 68, ¶ 11, 382 P.3d 1241 ; People v. Gee , 2015 COA 151, ¶¶ 42-46, 371 P.3d 714.2 Though de......
  • People v. Rodriguez, No. 91SA112
    • United States
    • Colorado Supreme Court of Colorado
    • March 11, 1996
    ...mens rea because the term "knowingly," when offset from other elements, modifies all succeeding conduct elements. See People v. Bossert, 722 P.2d 998, 1011 (Colo.1986); People v. Freeman, 668 P.2d 1371, 1377-78 The requirement of a unanimous jury was not compromised by Paragraph 4 of Instru......
  • People v. Pratt, No. 86SA401
    • United States
    • Colorado Supreme Court of Colorado
    • July 5, 1988
    ...S.Ct. 956, 959, 22 L.Ed.2d 113 (1969); Hutchinson v. People, 742 P.2d 875, 887 (Colo.1987) (Vollack, J., dissenting); People v. Bossert, 722 P.2d 998, 1004 (Colo.1986); People v. Lybarger, 700 P.2d 910, 915 (Colo.1985); Ricci v. Davis, 627 P.2d 1111, 1121 (Colo.1981); Board of County Comm'r......
  • Request a trial to view additional results
52 cases
  • Horton v. Suthers, No. 00SA58.
    • United States
    • Colorado Supreme Court of Colorado
    • January 22, 2002
    ...for an order that affects the judgment, in that case a motion under Crim. P. 35(b) for reduction of sentence); see also People v. Bossert, 722 P.2d 998, 1001 n. 4 (Colo.1986) (trial court lacked jurisdiction to rule upon the defendant's Crim. P. 35(c) motions because they were filed after t......
  • People v. Kadell, Court of Appeals No. 13CA2021
    • United States
    • Colorado Court of Appeals of Colorado
    • October 5, 2017
    ...draw the court's attention to the issue, it's not preserved. Martinez v. People , 2015 CO 16, ¶¶ 13-14, 344 P.3d 862 ; People v. Bossert , 722 P.2d 998, 1010 (Colo. 1986) ; People v. Galang , 2016 COA 68, ¶ 11, 382 P.3d 1241 ; People v. Gee , 2015 COA 151, ¶¶ 42-46, 371 P.3d 714.2 Though de......
  • People v. Rodriguez, No. 91SA112
    • United States
    • Colorado Supreme Court of Colorado
    • March 11, 1996
    ...mens rea because the term "knowingly," when offset from other elements, modifies all succeeding conduct elements. See People v. Bossert, 722 P.2d 998, 1011 (Colo.1986); People v. Freeman, 668 P.2d 1371, 1377-78 The requirement of a unanimous jury was not compromised by Paragraph 4 of Instru......
  • People v. Pratt, No. 86SA401
    • United States
    • Colorado Supreme Court of Colorado
    • July 5, 1988
    ...S.Ct. 956, 959, 22 L.Ed.2d 113 (1969); Hutchinson v. People, 742 P.2d 875, 887 (Colo.1987) (Vollack, J., dissenting); People v. Bossert, 722 P.2d 998, 1004 (Colo.1986); People v. Lybarger, 700 P.2d 910, 915 (Colo.1985); Ricci v. Davis, 627 P.2d 1111, 1121 (Colo.1981); Board of County Comm'r......
  • Request a trial to view additional results

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