People v. Green

• Decision Date: 07 June 2012
• Docket Number: No. 08CA2439.,08CA2439.
• Citation: 296 P.3d 260
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Jeffrey Dewayne GREEN, Defendant–Appellant.
• Court: Colorado Court of Appeals

296 P.3d 260

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

v.Jeffrey Dewayne GREEN, Defendant–Appellant.

No. 08CA2439.

Colorado Court of Appeals, Div. II.

April 26, 2012.

As Modified on Denial of Rehearing June 7, 2012.

John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Rebecca R. Freyre, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge J. JONES.

¶ 1 Defendant, Jeffrey Dewayne Green, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree criminal trespass, his sentence on that conviction, and his adjudication and sentencing as a habitual criminal. We affirm.

I. Background

¶ 2 Defendant travelled from Colorado Springs to Denver to visit the victim, with whom he was in an intimate relationship. The victim's friend D.H. had been staying at the victim's house for the previous three nights.

¶ 3 After spending several hours at the victim's house, defendant and D.H. accompanied the victim to the restaurant where she worked. While there, defendant and the victim had a physical altercation, after which the victim told defendant “to leave [her] alone and never talk to [her] again.” One of the victim's friends brought defendant's belongings from the victim's house to the restaurant, and defendant left the restaurant. Later, D.H. also left the restaurant and went to the victim's house.

¶ 4 When the victim finished working, she picked up D.H. from her house, and drove him to his girlfriend's house. She returned home around 3:45 a.m. After she undressed, defendant emerged from her living room and approached her, asking to talk to her. She told him to get out of her house, and called 9–1–1. After defendant left, the victim discovered that the window screen in her son's bedroom had been broken.

¶ 5 The People charged defendant with second degree burglary, first degree criminal trespass, third degree assault, unlawful sexual contact, criminal mischief, harassment, and three habitual criminal counts. The People later added a criminal impersonation count, to which defendant pled guilty before trial.

¶ 6 A jury found defendant guilty of first degree criminal trespass, but acquitted him of the other charges. After several hearings, the district court adjudicated defendant a habitual criminal, and sentenced him to twelve years in the custody of the Department of Corrections for the trespass conviction, plus two years mandatory parole; and six years in prison for the criminal impersonation conviction, to be served concurrently with the twelve-year sentence.

II. Discussion

¶ 7 On appeal, defendant contends that the district court erred by (1) twice refusing to give a jury instruction saying that a person who has possessory rights in or occupies a premises may authorize another person to enter; (2) violating his constitutional and statutory speedy trial rights during post-trial proceedings; (3) denying his motion for a jury trial on the habitual criminal charges; and (4) declining to conduct an extended proportionality review of his sentence. We address and reject each contention in turn.

A. Possessory Rights Instruction

1. Background

¶ 8 The court instructed the jury on the elements of first degree trespass as follows:

The elements of the crime of First Degree Criminal Trespass are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. knowingly and unlawfully entered or remained in a dwelling of another.

In Instruction 23, the court defined “[u]nlawfully [e]nter or [r]emain” as to “enter or remain in or upon premises when [the person] is not licensed, invited, or otherwise privileged to do so.” The court further instructed the jury that “[defendant] maintains he is Not Guilty of ... First Degree Criminal Trespass because he had permission to enter, and therefore did not enter unlawfully.”

¶ 9 Defendant's counsel also tendered the following instruction:

It is a defense to the charge[ ] of ... First Degree Criminal Trespass that a defendant had permission to enter.

Previously granted permission to enter premises must be withdrawn before a defendant can be convicted of ... First Degree Criminal Trespass.

A person who has possessory rights or occupies the dwelling is authorized to give another person permission to enter; ownership is not required.

¶ 10 As relevant here, defendant's counsel argued that the instruction was justified because the victim had testified that defendant had told her D.H. had let him in, D.H. had stayed at the house for three nights, and there was evidence D.H. had a key to the house.

¶ 11 The court refused to give the instruction, ruling that the other instructions would “accurately and completely advise the jury,” and noting, “I'm not satisfied that this instruction is an accurate statement of the law ... particularly in connection with the facts ... in this case and the reasonable inferences that can be drawn from them.”

¶ 12 During deliberations, the jury submitted the following questions: “Would [D.H.] letting [defendant] into [the victim]'s home be considered an unlawful entry? Even without [the victim]'s permission? If he had a key?” Defense counsel again asked the court to give the possessory rights instruction. The court refused, instructing the jury, “Please refer to the definition of ‘unlawfully enter or remain’ in instruction no. 23. You must consider this instruction and all the other instructions as a whole.”

2. Analysis

¶ 13 The district court “has a duty to instruct the jury on all matters of law applicable to the case.” Riley v. People, 266 P.3d 1089, 1092 (Colo.2011). However, a defendant is not entitled to an instruction on a theory of defense unless there is “a scintilla of evidence” (or “some credible evidence”) supporting it. People v. Saavedra–Rodriguez, 971 P.2d 223, 228 (Colo.1998); People v. Platt, 170 P.3d 802, 806 (Colo.App.2007), aff'd,201 P.3d 545 (Colo.2009).

¶ 14 We review de novo whether the defendant has met this burden, considering the evidence in the light most favorable to the defendant. See Saavedra–Rodriguez, 971 P.2d at 228;see also Mata–Medina v. People, 71 P.3d 973, 979 (Colo.2003); People v. DeWitt, 275 P.3d 728, –––– – –––– (Colo.App.2011).¹

¶ 15 The victim testified that she had not given D.H. permission to let defendant into her house, and that D.H. told her he had not let defendant in. D.H. testified that he did not let defendant into the house and that the victim had not given him permission to let defendant into the house. There was unrebutted testimony that when the victim came home at 3:15 a.m., D.H. was at the house, but that the victim then took D.H. to his girlfriend's house. There was no evidence that defendant was in the house when the victim first came home at 3:15 a.m. or before she left very shortly thereafter with D.H. to take D.H. to his girlfriend's house. The victim returned to the house at about 3:45 a.m.

¶ 16 Nonetheless, defendant contends that because the victim testified that defendant had told her that D.H. had let him in, and because none of the other instructions addressed whether D.H. could legally give defendant permission to enter the victim's house, the court erred by refusing to give the possessory rights instruction.

¶ 17 However, earlier in the victim's testimony about her conversations with D.H., defense counsel made a hearsay objection. The prosecutor responded that the testimony was being offered to show the victim's response, “not for the truth of the matter.” The court then instructed the jury that “any statement that the witness testifies to having been made by another person is being offered only for a limited purpose to show the effect that statement had ... on her and for no other purpose.” Later, defense counsel objected to the victim's testimony that she had not believed that D.H. had let defendant in. The court overruled the objection after the prosecution reiterated that the testimony was “relevant to her state of mind at the time, not for the truth of the matter asserted.”

¶ 18 Consequently, considered in context, it is clear that the victim's testimony about what defendant had said was offered only to show the statement's effect on the victim, not for the truth of the matter asserted. See People v. Robinson, 226 P.3d 1145, 1151 (Colo.App.2009); see alsoCRE 801(c).² Thus, it was not evidence that D.H. had let defendant into the victim's house. See Golob v. People, 180 P.3d 1006, 1010 (Colo.2008) (noting that expert witness testimony offered only to show the basis for the expert's findings and opinions is not hearsay because it is not evidence of the matters stated (citing CRE 703 and Houser v. Eckhardt, 168 Colo. 226, 233, 450 P.2d 664, 668 (1969))); Pomeroy v. People, 116 Colo. 518, 522, 182 P.2d 139, 140–41 (1947) (where a statement is offered for the purpose of impeaching a witness's testimony, it is not evidence of anything other than that the witness's testimony is not credible); Beverly v. State, 795 S.W.2d 846, 846–47 (Tex.App.1990) (police officer's testimony that an apartment manager had “trespass warned” the defendant was not hearsay because it was offered to explain the officer's subsequent actions; thus, it was not evidence of any element of the charged offense); cf. Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 56 L.Ed. 500 (1912) (hearsay evidence admitted without objection must be given its probative effect as if it were admissible).³

¶ 19 Because there was no evidence that D.H. had let defendant into the victim's house, we conclude that the district court did not err by refusing to give the requested instruction. In any event, we also conclude that the instructions given by the court adequately explained to the jury that if defendant had been invited into the house, he could not be guilty of unlawful entry. This was consistent with d...