People v. Fuller

• Decision Date: 21 May 1990
• Docket Number: No. 89SA288,89SA288
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas Burt FULLER, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 702

791 P.2d 702

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Douglas Burt FULLER, Defendant-Appellant.

No. 89SA288.

Supreme Court of Colorado En Banc.

May 21, 1990.

As Amended on Denial of Rehearing July 9, 1990.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and John J. Krause, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David Vela, State Public Defender, and Kathleen A. Lord, Deputy State Public Defender, Denver, for defendant-appellant.

Justice ERICKSON delivered the Opinion of the Court.

The defendant, Douglas Burt Fuller, was convicted of aggravated robbery, ¹ second degree kidnapping, ² and also, pursuant to section 16-11-309, 8A C.R.S. (1986), of two violent crime sentence enhancement counts. Fuller was sentenced to consecutive sentences of twenty years on the aggravated robbery conviction and thirty years on the second degree kidnapping conviction. As a result of the robbery and kidnapping convictions, Fuller's deferred sentence on a prior conviction for theft by receiving ³ was revoked and he was resentenced to a term in the custody of the Department of Corrections. On appeal, ⁴ Fuller claims that: (1) the mandatory consecutive sentencing provision of section 16-11-309 violates his constitutional right to equal protection of the law, (2) there was insufficient evidence to support his conviction of second degree kidnapping, (3) the trial court erred by denying his challenges for cause to two prospective jurors, (4) the trial court improperly denied his tendered instructions on eyewitness identification, (5) the trial court abused its discretion in imposing sentence, and (6) the statute providing for the defense of impaired mental condition violated his constitutional rights to effective assistance of counsel, his constitutional rights to due process of law, and his constitutional rights against self-incrimination. Fuller also contends that his deferred sentence for theft by receiving must be reinstated since the deferred sentence was revoked on the basis of invalid convictions. We affirm in part, reverse in part, and remand with directions.

On July 30, 1987, at approximately 2:00 a.m., a young man robbed a convenience store in Greeley. In the course of the robbery, he grabbed the store clerk, put a knife to her throat and demanded the contents of the store's cash register. The clerk gave him the money from the register, which was approximately twenty dollars, and offered to give him the money from the store's safe and from her purse. The robber refused, and with the knife still at the clerk's throat, took the clerk out the front door and toward the dark side of the building. While the pair were still in front of the store, a car pulled into the store's parking lot and the clerk broke away from her captor. After a brief confrontation with the driver of the car, the robber fled on a bicycle and the driver pursued him to a nearby trailer park. Twenty minutes later, the police stopped Fuller while he was riding his bicycle out of the trailer park and detained him until the store clerk was brought to the scene. The clerk identified Fuller as the man who robbed her and took her out of the store. Fuller was searched. The search produced a knife and money, including a marked two dollar bill from the store's cash register.

Fuller was charged with aggravated robbery, second degree kidnapping and two sentence enhancement counts of violent crime, section 16-11-309. Prior to arraignment, Fuller challenged the constitutionality of Colorado's statutory requirements for the defense of impaired mental condition. ⁵ After the trial court found the statutory provisions constitutional, Fuller did not assert the defense of impaired mental condition.

The jury found Fuller guilty of aggravated robbery, second degree kidnapping and two counts of crime of violence. Fuller was sentenced to the Department of Corrections for consecutive terms of thirty years on the kidnapping conviction and twenty years on the aggravated robbery conviction. In addition, the trial court revoked the deferred sentence on the theft by receiving conviction and resentenced Fuller to a term of six years to be served consecutively to the other sentences.

I.

Fuller contends that the mandatory consecutive sentencing provision of section 16-11-309 violates his constitutional right to equal protection of the law. Section 16-11-309(1)(a) provides in part that "[a] person convicted of two separate crimes of violence arising out of the same incident shall be sentenced for such crimes so that sentences are served consecutively rather than concurrently." Fuller contends that section 16-11-309(1)(a) violates equal protection of the law because it requires consecutive sentences for crimes of violence arising "from the same incident" and not when a defendant commits separate violent crimes in different incidents, in which case the sentencing court may sentence a defendant to concurrent terms in its discretion. See, e.g., Brinklow v. Riveland, 773 P.2d 517, 520 (Colo.1989). Fuller asserts that the legislative decision to punish a defendant who commits crimes arising out of one incident more harshly than a defendant who commits identical crimes, but in separate incidents, bears no reasonable relationship to any legitimate governmental interest.

Equal protection of the law requires like treatment of all those who are similarly situated. E.g., People v. Calvaresi, 188 Colo. 277, 281, 534 P.2d 316, 318 (1975). Statutory classification of crimes must be based on substantial differences that are based on fact and reasonably related to the purposes of the legislation. Id. at 281-82, 534 P.2d at 318. Statutes that call for different penalties for the same conduct violate a defendant's right to equal protection of the law. People v. Young, 758 P.2d 667, 669 (Colo.1988); People v. Calvaresi, 188 Colo. at 282, 534 P.2d at 318. However, " '[t]he General Assembly [is] free to prescribe different punishments for conduct it may have rationally perceived to have different degrees of social reprehensibility.' " People v. Thatcher, 638 P.2d 760, 766 (Colo.1981) (quoting People v. Johnson, 195 Colo. 350, 578 P.2d 226 (1978)). Moreover, a statute is presumed to be constitutional and a person challenging the statute has the burden of proving that the statute is unconstitutional beyond a reasonable doubt. E.g., People v. French, 762 P.2d 1369, 1372 (Colo.1988).

The General Assembly could have rationally decided that violent crimes committed as part of the same incident pose a greater threat to society than the same criminal conduct committed separately in different violent criminal episodes. In our view, the differing punishments have a reasonable relationship to the prevention of crime, which is a legitimate governmental purpose. Since the classification is based on a rational distinction and is reasonably related to prevention of crime, the consecutive sentencing provision of section 16-11-309(1)(a) does not violate the constitutional requirements of equal protection of the law.

II.

Fuller asserts that the record does not support his conviction of second degree kidnapping since there was no evidence presented at trial that established that the store clerk was subjected to a greater risk of harm when Fuller forced her out of the store at knifepoint.

Section 18-3-302(1), 8B C.R.S. (1989 Supp.) provides "[a]ny person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping." The jury in this case was given an instruction on second degree kidnapping that tracked the language of the statute. To satisfy the elements of second degree kidnapping, substantial movement of the victim is not required. The prosecution must establish that the victim was moved and that the movement substantially increased the risk of harm to the victim. Apodaca v. People, 712 P.2d 467, 475 (Colo.1985). Fuller argues that the prosecution failed to establish the asportation element of second degree kidnapping since his conduct in taking the clerk out of the store did not expose the clerk to a substantially greater risk of harm.

On appellate review, a conviction based on a jury verdict must be upheld if there is substantial evidence in the record, viewed in the light most favorable to the prosecution, that supports the verdict. People v. Schoondermark, 699 P.2d 411, 414 (Colo.1985). We will not set aside a conviction for lack of evidence because a conclusion different from that reached by the jury might be reached on the same evidence. People v. Rosenberg, 194 Colo. 423, 427, 572 P.2d 1211, 1214 (1978). The prosecution in this case presented evidence that the store clerk was taken from the store by Fuller at night and that she was being taken to the dark side of the building. From the evidence, the jury could have fairly concluded that the clerk was placed at a substantially greater risk of harm. The evidence, viewed in the light most favorable to the prosecution, supports Fuller's conviction of second degree kidnapping.

III.

In attacking his aggravated robbery and second degree kidnapping convictions, Fuller argues that the trial court erred by denying his challenges for cause to two prospective jurors. During voir dire, one prospective juror stated that, because of her job in a laundromat where at times she feared for her safety, she sympathized with the victim in this case and that she could not promise that this sympathy would not affect her decision. Upon subsequent questioning by the trial judge, however, she said that she would decide the case on the merits and would not let her sympathy for the victim influence her decision. After his challenge for cause was denied, Fuller exercised one of his peremptory challenges to exclude that prospective juror. Another prospective juror stated that he had been a victim of...