People v. Ibarra

Decision Date22 March 1993
Docket NumberNo. 92SA228,92SA228
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tiburcio IBARRA, Defendant-Appellant.
CourtColorado Supreme Court

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John D. Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Eric V. Field, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, for defendant-appellant.

Justice ERICKSON delivered the Opinion of the Court.

The appellant, Tiburcio Ibarra, was convicted by a jury of two counts of felony menacing in violation of section 18-3-206, 8B C.R.S. (1986), and sentenced to four years of incarceration in the Department of Corrections on each count. On appeal, Ibarra asserts the following grounds for reversal of his judgment of conviction:

(1) The felony-menacing statute, section 18-3-206, 8B C.R.S. (1986), unconstitutionally violates his equal protection rights under article II, section 25 of the Colorado Constitution because the conduct proscribed by section 18-3-206, 8B C.R.S. (1986), a class 5 felony, is indistinguishable from the conduct proscribed by section 18-9-106(1)(f), 8B C.R.S. (1986), disorderly conduct with a deadly weapon, a class 2 misdemeanor;

(2) The district court committed reversible error by limiting a defense witness' testimony to knowledge of the victim's reputation under CRE 404(a) and 405(a) rather than allowing similar transaction testimony of past acts perpetrated by the victim against the witness pursuant to CRE 404(b);

(3) That remarks made by the prosecutor during cross-examination of Ibarra were unduly prejudicial and denied him a fair trial; and

(4) That Ibarra's election to testify on his own behalf was not made voluntarily, knowingly, or intelligently.

We accepted jurisdiction over this appeal and now affirm the judgment of conviction entered against Ibarra. 1


The information charged that Ibarra, on October 12, 1990, by threat and physical action, and by use of a deadly weapon, knowingly placed Lupe Lozano and her daughter Lori in fear of imminent serious bodily injury in violation of section 18-3-206. Ibarra entered a not guilty plea to these charges of felony menacing and a trial to a jury commenced on February 14, 1991. The acts for which Ibarra was charged stemmed from an altercation between Ibarra and the Lozanos on October 12, 1990, culminating in Ibarra's firing two shots from a revolver through the screen of his bedroom window while the Lozanos were standing outside the window. In his defense, Ibarra asserted claims of self-defense and defense of property.

The events, which occurred on October 12, 1990, are the subject of conflicting testimony by the parties. The Lozanos both testified that at approximately 2:00 a.m. they left their apartment, accompanied by Gilbert Garcia, to walk to a local convenience store to purchase cigarettes. 2 While returning home, the three heard an individual, later identified as Ibarra, yelling obscenities at them from within his apartment. Ibarra, who the Lozanos claim sounded drunk, threatened to kill the Lozanos and Garcia because Ibarra felt that the Lozano family was responsible for breaking his kitchen window. 3 Garcia, taking offense to Ibarra's threats and obscenities, invited Ibarra outside to fight, which Ibarra declined to do. 4 The Lozanos and Garcia started to walk toward the Lozanos' apartment when they heard two gunshots. The Lozanos and Garcia then ran to the apartment and called the police.

Within ten minutes, the police arrived at the Lozanos' apartment. The police knocked on the apartment door several times and shouted their presence before the Lozanos opened the door. The police testified that the Lozanos appeared very scared, nervous, and excited as they related their version of the events. After taking statements from the Lozanos, the police went to Ibarra's apartment to speak with him. Ibarra answered the door and allowed the police to enter his apartment. The police testified the Ibarra appeared "angry and confused," and that there was the smell of an alcoholic beverage on Ibarra's breath. 5

During a consensual search of Ibarra's apartment, the police discovered a revolver containing two live rounds and two spent rounds of ammunition. Ibarra admitted firing the revolver out of his window, but claimed that he felt threatened by the Lozanos and Garcia, and was merely protecting his property from further damage and himself from a potential attack. Ibarra claimed that he could not telephone the police himself because he did not have a phone in his apartment and that he felt the only way to force the Lozanos and Garcia to leave him alone was to shoot his revolver to scare them away.

At trial, Ibarra offered the testimony of his neighbor, Marvin Roundtree, to show prior acts of harassment by the Lozanos against Roundtree. The trial court refused to allow the admission of this specific act testimony, but allowed Roundtree to testify regarding the Lozanos' reputation in the community. Ibarra, who does not speak English, was also advised at trial, through an interpreter, of his right to testify or not testify in his own defense, and elected to testify. During cross-examination, the prosecution made two separate remarks relating to where Ibarra had purchased the revolver which fired the shots and commented on the fact that it is illegal for convicted felons to possess firearms. 6

Ibarra was convicted by the jury of two counts of felony menacing and was sentenced to the Department of Corrections for two concurrent four-year terms. Ibarra appealed his conviction to the court of appeals, and we accepted jurisdiction over the appeal.


Ibarra claims that the felony-menacing statute, section 18-3-206, 8B C.R.S. (1986), 7 unconstitutionally violates his equal protection rights under article II, section 25 of the Colorado Constitution because the conduct proscribed by section 18-3-206, a class 5 felony, is indistinguishable from the conduct proscribed by section 18-9-106(1)(f), 8B C.R.S. (1986), 8 disorderly conduct with a deadly weapon, a class 2 misdemeanor.

We rejected the same argument in People v. Torres, 848 P.2d 911 (Colo.1993). Torres held that the actus reus of felony menacing is more specific than the actus reus of disorderly conduct with a deadly weapon. Id. at 915. "[C]riminal legislation is not constitutionally infirm simply because the offender's conduct may violate more than one statutory proscription. It is only when 'the same conduct is proscribed in two statutes and different criminal sanctions apply, that problems arise under equal protection.' " People v. Velasquez, 666 P.2d 567, 569 (Colo.1983) (citing People v. Taggart, 621 P.2d 1375, 1382 (Colo.1981)). The fact that the prosecution may exercise discretion as to the statute under which it wishes to prosecute does not violate the tenets of equal protection. People v. Hulse, 192 Colo. 302, 305, 557 P.2d 1205, 1206 (1976). 9 Accordingly, we reject Ibarra's constitutional claim for the reasons set forth in Torres.


Ibarra claims that the district court committed reversible error by limiting Roundtree's testimony to his knowledge of the Lozanos' general reputation for peacefulness rather than allowing Roundtree to testify concerning specific prior acts of harassment committed by the Lozanos against Roundtree. Ibarra claims that Roundtree's testimony was admissible under CRE 404(b) to prove the Lozanos' motive, identification, or opportunity to attack Ibarra and destroy his property on the night of October 12. 10 We disagree.

Trial courts are accorded considerable discretion in deciding questions concerning the admissibility of evidence and they have broad discretion to determine the relevancy of evidence, its probative value and its prejudicial impact. People v. Huckleberry, 768 P.2d 1235, 1242 (Colo.1989). Therefore, absent an abuse of discretion, a trial court's evidentiary rulings will be affirmed. See People v. Lowe, 660 P.2d 1261, 1264 (Colo.1983). To show an abuse of discretion, an appellant must establish that, under the circumstances, the trial court's decision to reject the evidence was manifestly arbitrary, unreasonable, or unfair. See King v. People, 785 P.2d 596, 603 (Colo.1990); People v. Hampton, 758 P.2d 1344, 1348 (Colo.1988).

CRE 404 provides in pertinent part:

(a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:


(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.


(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Ibarra claims that Roundtree's testimony was admissible under CRE 404(b) to prove the Lozanos' motive, opportunity, or identity on the evening in question.

Roundtree's testimony was not competent or relevant for purposes of establishing Ibarra's claims of self-defense and defense of property. 11 Both of Ibarra's defenses rested on his reasonable belief that the Lozanos were threatening either him or his property. See § 18-1-704, 8B C.R.S. (1986) (use of physical force is justified if it is reasonably believed that another person is using unlawful physical...

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