People v. Caswell
| Decision Date | 19 August 2021 |
| Docket Number | Court of Appeals No. 18CA0464 |
| Citation | 2021 COA 111,499 P.3d 361 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Constance Eileen CASWELL, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE ROMÁN
¶ 1 A jury found defendant, Constance Eileen Caswell, guilty of forty-three counts of cruelty to animals. § 18-9-202, C.R.S. 2020. The trial court sentenced her to forty-three days in jail, eight years of probation, and community service, and assessed fines and costs. Caswell contends on appeal that reversal is required because the trial court erred by (1) entering felony convictions even though the People did not prove beyond a reasonable doubt, to a jury, that Caswell had a prior conviction for cruelty to animals; (2) denying three for-cause challenges to potential jurors; (3) denying Caswell's pretrial motion to suppress evidence of dead dogs; and (4) admitting the evidence of dead dogs at trial contrary to CRE 403 and CRE 404(b). We affirm.
¶ 2 Investigators from the Lincoln County Sheriff's Office seized twenty-nine dogs, four cats, five birds, and five horses from Caswell's property after observing no food or water available for the dogs; no water or fresh air for the cats; no food, drinkable water, or fresh air for the birds; and no drinkable water and insufficient food for the horses. In addition, enclosed spaces holding animals were covered in trash and feces and smelled strongly of ammonia. Further, the majority of the seized animals were underweight, some were dehydrated, and some had untreated medical conditions, including lacerations. Investigators also exhumed five dead dogs, although the investigators could not discern when or how the dogs had died.
¶ 3 The People charged Caswell with forty-three counts of cruelty to animals. The jury convicted her on all counts. At sentencing, Caswell conceded that she had previously been convicted of cruelty to animals.1 During sentencing, the trial court treated Caswell's prior convictions as sentence enhancers rather than as elements of the offense of cruelty to animals that a jury must find beyond a reasonable doubt. The court's finding that Caswell had prior convictions elevated her misdemeanor offenses to felonies.
¶ 4 As a matter of first impression, we consider whether the Colorado legislature intended that prior convictions constitute a penalty enhancer rather than a substantive element of the offense of cruelty to animals. Because we conclude the trial court applied the correct standard when it determined whether Caswell was entitled to a jury determination of the prior conviction, we affirm her sentence and consider her for-cause challenges, motion to suppress, and evidentiary challenges.
¶ 5 Caswell contends the General Assembly intended prior convictions to constitute elements of the offense of felony cruelty to animals and, therefore, her conviction must be reversed because her prior conviction was not proven to a jury beyond a reasonable doubt. She relies on the analysis in our supreme court's recent decision in Linnebur v. People , 2020 CO 79M, 476 P.3d 734. We agree that the analysis in Linnebur is instructive, but we disagree that it requires a reversal in this case.
¶ 6 "Whether a statutory provision constitutes a sentence enhancer or a substantive element of an offense presents a question of law that we review de novo." Id. at ¶ 9. Because "[t]he General Assembly has plenary authority to define criminal conduct and to establish the elements of criminal liability," we construe the cruelty to animals statute to ascertain and give effect to the legislature's intent. Id.
¶ 7 To discern the legislature's intent, "we look first to the language of the statute, giving its words and phrases their plain and ordinary meanings." Id. (quoting McCoy v. People , 2019 CO 44, ¶ 37, 442 P.3d 379 ). "If the plain language of the statute demonstrates a clear legislative intent, we look no further in conducting our analysis." Id. (quoting Springer v. City & Cnty. of Denver , 13 P.3d 794, 799 (Colo. 2000) ).
¶ 8 If a statute does not explicitly designate whether a fact is an element of a crime or a sentencing factor, we look to the "(1) language and structure [of the statute], (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative history" to determine the General Assembly's intent. Id. at ¶ 10 (quoting United States v. O'Brien , 560 U.S. 218, 225, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010) ).
¶ 9 Section 18-9-202 — the cruelty to animals statute — provides, in relevant part, as follows:
¶ 10 While the cruelty to animals statute does not explicitly specify whether prior convictions are an element of the offense or a penalty enhancer, our statutory analysis leads us to the conclusion that the language and structure of the statute clearly signal the General Assembly's intent to designate prior convictions as penalty enhancers.
¶ 11 What persuades us the most is that the provision at issue is included in the subsection of the statute that enumerates penalties and sentencing provisions, as opposed to the subsection containing the substantive elements of the crime. Compare § 18-9-202(1)(a)-(c) (), with § 18-9-202(2)(a)-(c) ().
¶ 12 In addition, the cruelty to animals statute does not require that the prior convictions be charged in the indictment or information.
¶ 13 Caswell argues the supreme court's analysis and conclusion in Linnebur compel a different result. There, the court concluded that the language and structure of the statutes outlining the elements and penalties for felony and misdemeanor DUI clearly indicated the General Assembly's intent to make prior DUI convictions elements of the offense of felony DUI. Linnebur , ¶¶ 22-24.
¶ 14 In support of its conclusion, the Linnebur court specifically noted (1) the legislative history of constructive amendments to the DUI statute "suggest[ed] that the General Assembly intended prior convictions to be treated differently when the defendant is charged with a felony than when he is charged with a misdemeanor," id. at ¶¶ 21-22 ; (2) the General Assembly included a provision that prior DUI and DWAI convictions must be charged in the indictment or information, id. at ¶ 22 ; (3) the statutory language escalating the penalty is in the same provision as the other elements of the substantive offense, rather than in the statutory provision setting forth penalties, id. at ¶ 23 ; and (4) the General Assembly provided "numerous additional protections ... for defendants charged with felony DUI," including a preliminary hearing, a trial by a twelve-person jury, and the right to a unanimous verdict, id. at ¶ 24.
¶ 15 And, while the court recognized that, "[i]n a vacuum, tradition would certainly weigh in favor of considering the fact of prior convictions to be a sentence enhancer," the clear language and structure of the felony DUI statute compelled its conclusion that the prior convictions were elements of felony DUI. Id. at ¶¶ 26-27.
¶ 16 Finally, the court contemplated the risk of unfairness and when to consider whether, under the Sixth Amendment, a jury must decide if the defendant had prior convictions:
[T]here are good reasons to question the legitimacy of proving prior convictions only to a judge when the prescribed penalties (and attendant collateral consequences) for felony [driving under the influence (DUI)] are so significant. Ultimately though, subject to constitutional limitations, whether the fact of prior convictions constitutes an element of the offense or a sentence enhancer depends on legislative intent. As such, if we can glean a clear legislative intent in either direction, then we may leave aside the Sixth Amendment issue and simply resolve this case as a matter of statutory interpretation.
¶ 17 In our view, the language and structure of the cruelty to animals statute are different than those of the DUI statutory scheme, compelling a different result. Unlike the structure of the felony DUI statute, the prior conviction language in the cruelty to animals statute appears in a different subsection from that setting forth the elements of the substantive offense. Compare § 18-9-202(1) - (2), with § 42-4-1301(1)(a), C.R.S. 2020. And, unlike the prior conviction penalty enhancer provisions of the DUI statutory scheme, which omit the prior convictions required for felony DUI,...
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Summaries of Published Opinions
...trial. Accordingly, the court committed reversible error. Gutierrez's convictions were reversed and the case was remanded for a new trial. 2021 COA 111. No. 18CA0464. People v. Caswell. Cruelty to Animals—Prior Convictions. A jury found defendant guilty of 43 counts of cruelty to animals. D......