People v. Caime

• Decision Date: 04 November 2021
• Docket Number: Court of Appeals No. 18CA2423
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeffrey Thomas CAIME, Defendant-Appellant.
• Court: Colorado Court of Appeals

503 P.3d 940

2021 COA 134

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Jeffrey Thomas CAIME, Defendant-Appellant.

Court of Appeals No. 18CA2423

Colorado Court of Appeals, Division IV.

Announced November 4, 2021

Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea A. Mowrer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶ 1 Defendant, Jeffrey Thomas Caime, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of a controlled substance as a special offender. In addition to challenging the conviction and the trial court's adjudication of him as a habitual offender, Caime attacks the adequacy of the trial court's proportionality review of his habitual criminal sentence.

¶ 2 Although we discern no basis to reverse the conviction or the habitual offender adjudication, we conclude that Caime is entitled to a new proportionality review. In reaching this conclusion, we hold as a matter of first impression that vehicular assault (reckless driving) is not a per se grave or serious offense. Thus, we affirm the conviction but vacate the sentence and remand for further proceedings.

I. Factual Background

¶ 3 The following evidence was presented at trial.

¶ 4 Two officers spotted a parked car that had been reported stolen. After an altercation, officers placed both occupants of the vehicle — Caime (the driver) and Mark Penman (the passenger) — in custody. Upon searching the car, officers found a gun in between the driver's seat and center console and a bag of methamphetamine on the driver's side floorboard.

¶ 5 Officers interviewed Caime and Penman. In Caime's interview, a recording of which was played at trial, he admitted that he dealt methamphetamine, possessed methamphetamine that day, and was there to sell some to Penman. Penman testified at trial that he remembered telling officers in his interview that he was there to buy methamphetamine from Caime and that Caime was his only dealer. Penman also testified that there was a gun in the car.

¶ 6 Caime was charged with possession of a controlled substance, possession with intent to manufacture or distribute a controlled substance, and possession of a weapon by a previous offender (POWPO). He was also charged with special offender and habitual criminal sentencing counts. The jury convicted Caime of possession of a controlled substance and found that he was a special offender. The trial court adjudicated Caime a habitual offender and, after conducting an abbreviated proportionality review, imposed the statutorily mandated sixty-four-year sentence for his conviction.¹

¶ 7 Caime now appeals, raising four contentions. He contends that the court reversibly erred by admitting res gestae or prior act evidence at trial. He also contends that the special offender count was constructively amended. He contends the trial court reversibly erred by admitting improper hearsay evidence during the habitual criminal proceeding. And he contends that the trial court conducted an inadequate abbreviated proportionality review of his habitual offender sentence. We reject his first three contentions but agree with his fourth.

II. Admitting Res Gestae or CRE 404(b) Evidence was not Reversible Error

¶ 8 Caime argues that the trial court reversibly erred by admitting evidence of his history of dealing drugs as res gestae evidence and by admitting such evidence without the protective measures required by CRE 404(b). The People assume, without conceding, that the trial court erroneously admitted the evidence but argue that any error was harmless. We agree with the People.

A. Additional Facts

¶ 9 The trial court permitted the jury to hear the following evidence:

• Caime's recorded interview, in which he told police that he would give Penman "dope" in exchange for tools or electronics, and that was "pretty much" their relationship;

• Penman's testimony that he saw Caime "once or twice a year" and that he did not remember making the statement to Officer Jonathan Dennis that he purchased methamphetamine from Caime two or three times a week; and

• Officer Dennis's testimony that Penman told him "[Caime] was his only dealer" and he purchased methamphetamine from Caime "three or four times a month."

¶ 10 Before the jury heard Officer Dennis's testimony, the judge gave the jury the following limiting instruction: "you are only to consider that statement as it relates to Mr. Penman's credibility. You are not to consider it for any other reason." Caime's counsel objected to the three statements but did not object to the limiting instruction.

B. Standard of Review and Applicable Law

¶ 11 We review a trial court's evidentiary rulings for an abuse of discretion. People v. Rath , 44 P.3d 1033, 1043 (Colo. 2002). "[W]e review nonconstitutional trial errors that were preserved by objection for harmless error." Hagos v. People , 2012 CO 63, ¶ 12, 288 P.3d 116. "[W]e reverse if the error ‘substantially influenced the verdict or affected the fairness of the trial proceedings.’ " Id. (quoting Tevlin v. People , 715 P.2d 338, 342 (Colo. 1986) ). Any preserved error will be disregarded as harmless when "there is no reasonable probability that it contributed to the defendant's conviction." Crider v. People , 186 P.3d 39, 42 (Colo. 2008).

C. Analysis

¶ 12 We agree with the People's argument that the relevance of these statements relates to whether Caime had the intent to manufacture or distribute the methamphetamine.

The jury acquitted Caime of that charge. Thus, any error was harmless. See Kreiser v. People , 199 Colo. 20, 24, 604 P.2d 27, 30 (1979).

¶ 13 Even if we were to accept Caime's view that the challenged statements were relevant to the charge of simple possession of methamphetamine, any error would be harmless. The jury heard Caime say in his interview, "I had my, my dope in my hand."² Caime's independent admission that he was holding "dope" is overwhelming evidence that supports his conviction for possession of a controlled substance. Thus, there is no reasonable probability that the challenged statements substantially influenced the verdict or impaired the fairness of the trial. See People v. Herron , 251 P.3d 1190, 1198 (Colo. App. 2010).

¶ 14 Finally, we presume that a jury follows the trial court's limiting instructions. See Cordova v. People , 880 P.2d 1216, 1220 (Colo. 1994). There is nothing in the record to indicate that the jury here did not.

¶ 15 We therefore discern no reversible error.

III. The Special Offender Jury Instruction was not Plainly Erroneous

¶ 16 Caime next contends that the jury instruction regarding the special offender sentencing factor constructively amended that charge. We disagree.

A. Additional Facts

¶ 17 The complaint charged Caime as a special offender as follows:

Between and including July 14, 2015 and July 15, 2015, Jeffrey Thomas Caime committed the felony offenses charged in counts one and two and the defendant or a confederate of the defendant possessed a firearm in a vehicle the defendant was occupying during the commission of the offense ; in violation of section 18-18-407(1)(d)(II), C.R.S.

(Emphasis added.)

¶ 18 To address the special offender component of the charges, the verdict form for each charge instructed the jury that, if it found Caime guilty of that charge, it must decide whether the offense involved a deadly weapon or firearm. And the verdict form further instructed the jury that they could conclude the offense involved a deadly weapon or firearm only if

Mr. Caime or a confederate of Mr. Caime possessed a firearm, as that term is defined in your instructions, to which Mr. Caime or confederate had access in a manner that posed a risk to others or in a vehicle Mr. Caime was occupying at the time of the commission of Possession of a Controlled Substance (Methamphetamine).

(Emphasis added.)

B. Standard of Review and Applicable Law

¶ 19 We review de novo whether a constructive amendment occurred. People v. Carter , 2021 COA 29, ¶ 35, 486 P.3d 473. A constructive amendment occurs when a jury instruction "changes an essential element of the charged offense and thereby alters the substance of the charging instrument." People v. Rodriguez , 914 P.2d 230, 257 (Colo. 1996).

¶ 20 Because Caime's attorney did not object to the special offender language, we review for plain error. See People v. Rediger , 2018 CO 32, ¶ 47, 416 P.3d 893 ; see also Carter , ¶¶ 34-48 (concluding, contrary to prior divisions of this court, that a constructive amendment is not structural error). A plain error is one that is obvious and that "so undermine[d] the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." Hoggard v. People , 2020 CO 54, ¶ 12, 465 P.3d 34 (quoting People v. Weinreich , 119 P.3d 1073, 1078 (Colo. 2005) ).

¶ 21 As relevant here, the special offender statute provides that anyone who commits a felony offense of possession of a controlled substance under certain enumerated "aggravating circumstances commits a level 1 drug felony and is a special offender." § 18-18-407(1)(d)(II), C.R.S. 2020. As it pertains to Caime's charges, there were two ways the special offender count could be pleaded and proved. The first is if "[t]he defendant or a confederate of the defendant possessed a firearm ... to which the defendant or confederate had access in a manner that posed a risk to others ...." Id. The second is if "[t]he defendant or a confederate of the defendant possessed a firearm ... in a vehicle the defendant was occupying at the time of the commission of the violation." Id. While the charging document only included the latter circumstance, the jury instruction in the verdict form included both.

C. Analysis

¶ 22 Caime contends that the addition of the "posed a risk to others" language in the jury instruction was a...