People v. Esparza–Treto, 08CA2101.

• Decision Date: 25 August 2011
• Docket Number: No. 08CA2101.,08CA2101.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Ezequiel ESPARZA–TRETO, Defendant–Appellant.
• Court: Colorado Court of Appeals

282 P.3d 471

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

v.Ezequiel ESPARZA–TRETO, Defendant–Appellant.

No. 08CA2101.

Colorado Court of Appeals,

Div. I.

July 21, 2011.

Rehearing Denied Aug. 25, 2011.^*

John W. Suthers, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge GABRIEL.

Defendant, Ezequiel Esparza–Treto (Esparza), appeals his judgment of conviction and sentence on numerous counts arising from a high-speed chase through Grand Junction, Colorado that ended when Esparza collided with another vehicle, causing serious bodily injury to both Esparza's passenger and the driver of the other vehicle. On the evidence presented here, we conclude that Esparza did not use his vehicle as a deadly weapon and therefore reverse his convictions for second and third degree assault. We further conclude that Esparza's reckless driving conviction must merge into his vehicular eluding conviction and therefore vacate the reckless driving conviction. In all other respects, we affirm the judgment and sentence, although we remand for correction of the mittimus.

I. Background

On the morning of December 6, 2006, Esparza was driving his car with a passenger through Grand Junction. A trooper with the Colorado State Patrol activated his patrol car's strobe lights and siren in an attempt to stop Esparza to ticket him for speeding, but Esparza did not stop. Instead, a high-speed chase ensued, during which Esparza sped through residential neighborhoods and ignored red lights and stop signs. The chase ended when Esparza drove through a red light at a busy intersection and collided with another vehicle. The crash caused serious bodily injury to both Esparza's passenger and the driver of the other vehicle.

As pertinent here, Esparza was ultimately convicted of (1) one count of first degree assault with extreme indifference as to both the driver of the other vehicle and his passenger; (2) one count of second degree reckless assault as to the other driver; (3) one count of third degree assault as to his passenger; (4) two counts of vehicular assault (one as to the other driver and one as to his passenger); (5) one count of vehicular eluding; (6) one count of reckless driving; (7) one count of speeding; and (8) one count of violation of a traffic control device. The trial court sentenced Esparza on these various counts, and Esparza now appeals.

II. Sufficiency of the Evidence

Esparza first contends that the evidence at trial was insufficient to prove beyond a reasonable doubt that he committed the crimes of first, second, and third degree assault. We conclude that the evidence was sufficient to support Esparza's first degree assault conviction. We agree with Esparza, however, that the evidence was insufficient to establish second and third degree assault, because the evidence did not support a finding that Esparza used his vehicle as a deadly weapon.

A. Standard of Review

The issue of the sufficiency of the evidence is a question of law that we review de novo. People v. Kriho, 996 P.2d 158, 172 (Colo.App.1999). We must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. People v. Sprouse, 983 P.2d 771, 777 (Colo.1999); People v. McIntier, 134 P.3d 467, 471 (Colo.App.2005).

The prosecution must be given the benefit of every reasonable inference that might be fairly drawn from the evidence. McIntier, 134 P.3d at 471. Further, the determination of the credibility of the witnesses is solely within the province of the fact finder, and it is the fact finder's function to consider and determine the weight to be accorded all parts of the evidence, and to resolve conflicts, inconsistencies, and disputes in the evidence. Id. An appellate court may not act as a thirteenth juror and set aside a verdict because it might have drawn a different conclusion were it the trier of fact. Id. at 471–72.

B. First Degree Assault

A person commits the crime of assault in the first degree with extreme indifference when “[u]nder circumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct which creates a grave risk of death to another person, and thereby causes serious bodily injury to any person.” 18–3–202(1)(c), C.R.S.2010.

At trial, three state troopers testified regarding their pursuit of Esparza's vehicle. A trooper flying a traffic enforcement operation observed Esparza speed through a fifty mile per hour zone at sixty-six miles per hour and then sixty-nine miles per hour. A trooper on the ground testified that Esparza's vehicle was traveling well over the posted speed limit when it passed him. The same trooper watched Esparza approach an intersection with a red light, veer to the right of an intersecting vehicle, and collide with it in the intersection.

A third trooper testified that he pursued Esparza while in a marked patrol car. The trooper followed Esparza off of the highway and through the bay of a car wash before Esparza returned to the northbound lane of the road. Despite the trooper's activating his sirens and lights, Esparza did not slow down or stop. Indeed, at one point, he increased his speed to seventy miles per hour while traveling through a forty mile per hour zone. The trooper testified that Esparza cut through traffic, passed vehicles in an unlawful manner, and continued through a red light at an intersection. This trooper followed Esparza to a residential area and observed Esparza speed through three posted stop signs without stopping.

The chase ended when Esparza attempted to speed through a red light. The third trooper testified that he observed Esparza enter the intersection, attempt to swerve without braking around a vehicle passing through that intersection, and collide with that vehicle. The trooper then used his patrol car to pin Esparza's vehicle so that he could not drive back into traffic.

A trooper estimated Esparza's speed at the moment of impact as seventy-five miles per hour, and a bystander described Esparza as driving “like a bat out of hell.” As noted above, the collision inflicted serious bodily injury on the driver of the other vehicle and on the passenger in Esparza's vehicle.

We conclude that the foregoing evidence amply establishes that Esparza drove recklessly and with extreme indifference through business and residential areas of Grand Junction. Moreover, the evidence shows that Esparza knowingly engaged in conduct that created a grave risk of death to those around him and ultimately caused a collision that resulted in serious bodily injury to two other people. Viewing the evidence in the light most favorable to the prosecution, we thus conclude that the record supports the jury's determination that Esparza committed the crime of first degree assault with extreme indifference.

C. Second and Third Degree Assault

A person commits second degree reckless assault when he or she “recklessly causes serious bodily injury to another person by means of a deadly weapon.” 18–3–203(1)(d), C.R.S.2010. As charged here, a person commits third degree assault when he or she “with criminal negligence ... causes bodily injury to another person by means of a deadly weapon.” 18–3–204(1)(a), C.R.S.2010.

Relying on People v. Stewart, 55 P.3d 107, 112 (Colo.2002), Esparza argues that there was insufficient evidence to show that he used his motor vehicle as a deadly weapon. Specifically, he asserts that unlike in Stewart, the evidence here was insufficient to allow a reasonable jury to conclude that he used or intended to use his vehicle as a deadly weapon. We agree.

Section 18–1–901(3)(e), C.R.S.2010, provides:

“Deadly weapon” means any of the following which in the manner it is used or intended to be used is capable of producing death or serious bodily injury:

(I) A firearm, whether loaded or unloaded;

(II) A knife;

(III) A bludgeon; or

(IV) Any other weapon, device, instrument, material, or substance, whether animate or inanimate.

Our supreme court has “consistently held that whether an object is a deadly weapon for the purposes of section 18–1–903(e)(IV) depends on the manner in which the object is used.” Stewart, 55 P.3d at 117. Implicit in the supreme court's deadly weapon analysis of subpart (IV) “is the requirement that the object be used or intended to be used as a weapon.” Id. To determine whether an object is a deadly weapon, we employ a two-step inquiry:

First, the object must be used or intended to be used as a weapon. Grass v. People, 172 Colo. 223, 228, 471 P.2d 602, 604 (1970) (adopting the view that the instruments that are not per se deadly weapons “must ... mean some article or object, which could be and was used as a weapon”). Second, the object must be capable of causing serious bodily injury.

Id.

Thus, the fact that an object is capable of causing serious bodily injury is not alone enough. That an object was capable of producing serious bodily injury “would be irrelevant for purposes of section 18–1–901(3)(e) had [the object] not been deployed as a weapon. The defendant need not intend to cause serious bodily injury; he must merely use as a weapon an object or instrument that is capable of causing such injury.” Id. (emphasis added).

Although in Stewart, our supreme court repeatedly emphasized that to be a “deadly weapon,” an object must be used or deployed as a weapon, neither that court nor the General Assembly has defined the word “weapon.” In common usage, however, a “weapon” is defined as “an instrument of offensive or defensive combat: something to fight with: something (as a club, sword, gun, or grenade) used in destroying, defeating, or physically injuring an enemy.” Webster's Third...