People v. Cooper, 02CA2078.

• Decision Date: 07 October 2004
• Docket Number: No. 02CA2078.,02CA2078.
• Citation: 104 P.3d 307
• Parties: THE PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael COOPER, Defendant-Appellant.
• Court: Colorado Court of Appeals

104 P.3d 307

THE PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael COOPER, Defendant-Appellant.

No. 02CA2078.

Colorado Court of Appeals, Division V.

October 7, 2004.

Certiorari Denied January 18, 2005.

Ken Salazar, Attorney General, Laurie A. Booras, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

RUSSELL, J.

Defendant, Michael Cooper, appeals the judgment of conviction entered upon a jury verdict finding him guilty of unlawful possession of a schedule II controlled substance. Defendant also appeals his adjudication as an habitual criminal. We affirm the judgment of conviction and the trial court's findings as to two habitual criminal counts. Because we conclude that the trial court erred in its determination as to the third habitual criminal count, we vacate defendant's sentence and remand for a new hearing as to that count and subsequent resentencing.

Police officers suspected that methamphetamine was being manufactured at a local auto body shop. While conducting surveillance, the police saw defendant contacting drivers who pulled into the parking lot outside the building.

The following day, the officers saw defendant drive away from the area in a car belonging to another person. One of the officers stopped defendant for a license plate violation and arrested him for driving while his license was revoked. Defendant offered to provide the arresting officer with information about a methamphetamine manufacturer in exchange for dismissal of the traffic charges.

While this conversation was taking place, a second police officer searched the car and discovered a small amount of methamphetamine concealed inside the leather housing surrounding the gearshift.

In a post-arrest interview, defendant admitted he had used methamphetamine the day before. Defendant also told the officer that the car had been in his possession for several weeks. Later that day, police officers executed a search warrant at the auto body shop and discovered evidence of methamphetamine manufacturing.

At trial, defendant's theory of defense was that he had been repairing the car for the owner and had no knowledge of the methamphetamine concealed in the car.

I.

Defendant first argues that the trial court abused its discretion by admitting evidence of his actions the day before he was arrested. We disagree.

Under CRE 404(b), evidence of other crimes, wrongs, or acts is inadmissible if its relevance depends upon an inference that the person has a bad character and acted in conformity with that character. People v. Spoto, 795 P.2d 1314, 1318 (Colo.1990). A trial court's decision to admit evidence under CRE 404(b) is reviewed only for an abuse of discretion. Masters v. People, 58 P.3d 979, 996 (Colo.2002).

Here, the prosecution sought to admit evidence of two other acts: (1) defendant's admission that he had used methamphetamine the day before he was arrested; and (2) the police officers' observations and photographs of defendant outside the methamphetamine manufacturing facility the day before he was arrested. The trial court concluded that this evidence was logically relevant to the issue of whether defendant knew the methamphetamine was in the car. And it found that the probative value of the evidence would not be substantially outweighed by the danger of unfair prejudice.

On this record, we cannot say the trial court abused its discretion. The logical relevance of this evidence did not depend on an inference that defendant acted in conformity with bad character. See People v. Warren, 55 P.3d 809, 815 (Colo.App.2002)

(evidence that defendant had previously supplied methamphetamine to her roommate was relevant — independent of an inference of bad character — to prove that she knew of methamphetamine found in her dresser). And the probative value of this evidence was not outweighed by the danger of unfair prejudice, especially because the court gave a limiting instruction. See People v. Vialpando, 954 P.2d 617, 623 (Colo.App.1997) (limiting instruction alleviates danger of unfair prejudice).

II.

Defendant next argues that the evidence is insufficient to support the trial court's finding that he had previously been convicted of three felonies as alleged in the information. We agree that, as to one count, a new evidentiary hearing is necessary.

Defendant was charged as an habitual criminal under the following provision:

Every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, either in this state or elsewhere, of a felony ... shall be adjudged an habitual criminal and shall be punished for the felony offense of which such person is convicted by imprisonment in the department of corrections for a term of four times the maximum of the presumptive range pursuant to section 18-1.3-401 for the class of felony of which such person is convicted.

Section 18-1.3-801(2), C.R.S.2003.

Under § 18-1.3-803(5)(b), C.R.S.2003, the prosecution bears the burden of proving the prior convictions beyond a reasonable doubt. Section 18-1.3-802, C.R.S.2003, which governs the admission of evidence in habitual criminal proceedings, provides that a duly authenticated copy of the record of a former conviction and judgment is prima facie evidence of the conviction and may be used as evidence at the habitual offender sentencing.

In addition, the prosecution must prove beyond a reasonable doubt that the accused is the person named in the prior convictions. People v. Martinez, 83 P.3d 1174 (Colo.App.2003).

A challenge to the sufficiency of the evidence requires a reviewing court to determine whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable fact finder that the defendant is guilty of the crimes charged beyond a reasonable doubt. People v. Sprouse, 983 P.2d 771, 777 (Colo.1999).

Here, the People filed four habitual criminal counts based on allegations that defendant had been convicted of the following: (1) second degree assault in case 91CR1672 on September 12, 1991; (2) unlawful possession of a controlled substance in case 95CR3091 on September 8, 1995; (3) driving after revocation as an habitual traffic offender in case 97CR1080 on November 10, 1997; and (4) driving after revocation as an habitual traffic offender in case 97CR2229 on November 10, 1997.

There were three types of evidence supporting the habitual criminal charges.

First, the People presented the testimony of the probation officer who had supervised cases 97CR1080 and 97CR2229. This witness, who had never met defendant, identified defendant as the person whose photograph was attached to the probation file for case 97CR1080. He also testified that defendant was the person whose photograph was attached to case 98CR878 (a felony conviction for which no habitual criminal count had been filed).

Second, the People presented written exhibits. For the conviction in case 95CR3091, the People introduced Colorado Department of Corrections (DOC) records that included a photograph of the person convicted. And the People introduced certified court records of all four convictions alleged in the information:

• The records for case 91CR1672 indicated that, on November 1, 1991, a person named Michael Clayton Cooper, who was born on January 2, 1961, was sentenced for second degree assault.

• The records for cases 97CR1080 and 97CR2229 indicated that, on November 10, 1997, a person named Michael Clayton Cooper, who was born on January 2, 1961, received concurrent probationary sentences for separate convictions of driving after license revoked as an habitual traffic offender. These records also indicated that, when the probationary sentences were subsequently revoked, the trial court imposed concurrent sentences to community corrections and ordered that they be served concurrently with a sentence imposed in case 98CR878 (the felony conviction for which no habitual criminal count was filed in this case, but which was linked to defendant through the probation officer's testimony concerning defendant's photograph).

• The records for case 95CR3091 indicated that, on November 28, 1995, a person named Michael Clayton Cooper, who was born on January 2, 1961, was convicted of unlawful possession of a controlled substance on April 24, 1995.

Third, over defendant's objection, the trial court took judicial notice of the presentence report for cases 97CR1080 and 97CR2229. According to the prosecutor, this report made reference to defendant's prior convictions in cases 91CR1672 and 95CR3091. (This report is not part of the record on appeal.)

Although the trial court found that defendant was the person whose photograph was included in the DOC records for case 95CR3091, the court acquitted him of that habitual criminal count, finding a failure of proof as to the date of conviction. Nevertheless, the trial court concluded that the DOC records for case 95CR3091 could be considered as evidence of defendant's identity with respect to the convictions alleged in the other three habitual criminal counts.

Relying on the DOC records from case 95CR3091; the court records for cases 91CR1672, 97CR1080, and 97CR2229; the probation officer's testimony; and the 1997 presentence report, the trial court found that the People had presented sufficient proof that defendant was the person convicted in cases 91CR1672, 97CR1080, and 97CR2229. The court also determined that the prosecution had proved that those three convictions were entered on the dates alleged.

A. Judicial Notice of the Presentence Report

Defendant contends the trial court erred by taking judicial notice of the 1997 presentence report. We agree.

Under CRE 201(b), a court...