People v. Lacallo

• Decision Date: 19 June 2014
• Docket Number: Court of Appeals No. 12CA0001
• Citation: 338 P.3d 442
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Enrique Alejandro LACALLO, Defendant–Appellant.
• Court: Colorado Court of Appeals

338 P.3d 442

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

v.Enrique Alejandro LACALLO, Defendant–Appellant.

Court of Appeals No. 12CA0001

Colorado Court of Appeals, Div. IV.

Announced June 19, 2014

Judgment of conviction affirmed; sentences vacated; case remanded for resentencing.

Roman, J., filed an opinion concurring in part and dissenting in part.

Jefferson County District Court No. 10CR1449, Honorable Ruthanne N. Polidori, Judge

John W. Suthers, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Carolyn A. Blanchard, Crested Butte, Colorado, for Defendant–Appellant

Opinion by JUDGE WEBB

¶ 1 Defendant, Enrique Alejandro Lacallo, appeals the judgment of conviction entered on a jury verdict finding him guilty of obstructing a law enforcement animal, felony menacing, rioting in a detention facility, engaging in a riot, possession of contraband, criminal mischief, and disobeying a public safety order during a riot. He also appeals his sentence.

¶ 2 This appeal primarily involves the conviction for violating the general riot statute, section 18–9–104(1), C.R.S.2013, and the definition of riot included in this statute. Addressing an undeveloped question in Colorado, we consider applying plain error review to a sufficiency of the evidence challenge under narrow circumstances: where trial counsel conceded that the evidence was sufficient (except for a factual issue not raised in this appeal), and appellate review of the evidence depends on a legal interpretation of a statutory element raised for the first time by appellate counsel. In this limited context, we agree with the Attorney General that the sufficiency issue presented was unpreserved, and is subject to only plain error review.¹ We affirm the judgment of conviction, but vacate the sentence and remand for resentencing.

I. Background

¶ 3 According to the prosecution's evidence, defendant and three other inmates refused to leave a common area of the Jefferson County jail and lockdown. Before being returned to their cells, they damaged the common area. During the disruption, visiting members of the public were evacuated from the jail.

II. Sufficiency of the Evidence

¶ 4 Defendant first contends the evidence was insufficient to support his conviction for engaging in a riot under section 18–9–104(1). He argues that because this charge rested solely on acts which occurred inside a detention facility, those acts cannot constitute a “public disturbance” under the definition of “riot” in section 18–9–101(2), C.R.S.2013. Because defendant did not raise this contention below, we apply the plain error standard of review and conclude that the error alleged was not obvious under existing law. Thus, we do not address the merits of this contention.

A. Standard of Review and Preservation

¶ 5 In moving for a judgment of acquittal, defense counsel did not broadly challenge the sufficiency of the evidence. To the contrary, as to the rioting in a detention facility count, he said, “I'm not going to belabor the whole point because I think they['ve] got me on the rioting part ... but they don't have him for purposes of this on employing a deadly weapon ... [because] nobody can put one of those knife-like shards of glass in [defendant's] hand.” (Emphasis added.) Then as to the count for engaging in a riot, he said, “again, my argument is the same, your honor,” and reiterated the shards assertion.

¶ 6 Thus, counsel did not expressly or even impliedly raise the issue now argued—that the evidence was insufficient to show a public disturbance—as a matter of either fact or law.² See People v. Rogers, 2012 COA 192, ¶ 24, 317 P.3d 1280 (“An issue is unpreserved for review when an objection or request was made to the trial court, but on different grounds than those raised on appeal.”). Thus, we must decide whether the trial court plainly erred “in failing sua sponte to direct defendant's acquittal based on that ground.” State v. Serrano, 355 Or. 172, 183–84, 324 P.3d 1274 (2014). ³

¶ 7 Even so, in Colorado sufficiency of the evidence may be raised for the first time on appeal. See Morse v. People, 168 Colo. 494, 498, 452 P.2d 3, 5 (1969) (“The one new matter urged upon us in this court which can be adequately reviewed on the basis of the record now before us concerns the sufficiency of the evidence.”); People v. Garcia, 2012 COA 79, ¶ 35, 296 P.3d 285 (“A defendant may challenge the sufficiency of the evidence without moving for a judgment of acquittal in the trial court.”); People v. Duncan, 109 P.3d 1044, 1045 (Colo.App.2004) (“[A] sufficiency of the evidence claim may be raised for the first time on appeal....”); People v. Peay, 5 P.3d 398, 400 (Colo.App.2000) (“reject[ing] the People's contention that defendant failed to preserve the issue of the sufficiency of the evidence ... because he failed to raise it in his motion for acquittal”).

¶ 8 Despite this uniformity, Colorado courts addressing unpreserved sufficiency challenges have not applied a consistent standard of review. When a criminal defendant fails to raise an issue below, review is limited to plain error. See generally People v. Miller, 113 P.3d 743, 749–50 (Colo.2005).

¶ 9 Even before Miller, some divisions of this court had applied plain error review to sufficiency claims. See People v. Rice, 40 Colo.App. 357, 361, 579 P.2d 647, 650 (1978) (“[D]efendant did not ... make any claims on his motion for acquittal that the evidence was insufficient to link him to these crimes. Since we find no plain error with respect to these convictions, we do not address the issue of the sufficiency of the evidence relative to them.”); see also People v. Harris, 633 P.2d 1095, 1099 (Colo.App.1981) (“[T]o allege insufficiency of evidence as to an indispensable element of a crime is to assert plain error.”). More recently, and despite Miller, other divisions have expressly declined to do so. See People v. Randell, 2012 COA 108, ¶ 30, 297 P.3d 989 (“[W]e reject the People's contention that the insufficient evidence claims defendant failed to raise in the trial court should only be reviewed for plain error.”); People v. McBride, 228 P.3d 216, 226 (Colo.App.2009) (same).

¶ 10 A third category of Colorado cases applies a de novo scope of review to unpreserved sufficiency claims, without considering applicability of the plain error standard of review. See, e.g., Garcia, ¶ 35; Duncan, 109 P.3d at 1045. Such cases do not inform our analysis because de novo review can be applied under plain error. See People v. Wylie, 260 P.3d 57, 60 (Colo.App.2010) (“Because defendant did not raise this issue in the trial court, we review for plain error.... To the extent defendant's arguments require us to interpret statutory provisions, we do so de novo.” (citations omitted)); see also United States v. Garza–Lopez, 410 F.3d 268, 272–73 (5th Cir.2005) (“In reviewing Garza–Lopez's claim of plain error, we begin by determining whether the district court committed an error and whether that error was plain. In resolving Garza–Lopez's claim that the district court erred by misapplying § 2L 1.2(b)(1)(A), we review the district court's interpretation and application of the Guidelines de novo.” (citation omitted)); Whittle v. State, 77 A.3d 239, 243 (Del.2013) (“We review alleged prosecutorial misconduct, such as improper vouching, for plain error where the defendant did not object to the asserted prosecutorial misconduct at trial, and the trial judge failed to intervene sua sponte. In plain error review, we examine the record de novo to determine whether prosecutorial misconduct occurred.”) (footnote omitted).⁴

Our supreme court has not spoken to this question. ⁵ Lacking its guidance, we join with Rice and Harris in applying the plain error standard of review, based on the following four reasons.

¶ 12 First, the wording of Crim. P. 52(b) does not support an exception for sufficiency claims that a defendant fails to bring “to the attention of the court.” True, a conviction based on insufficient evidence would be a very grave error. But analogous Fed.R.Crim.P. 52(b) “does not permit exceptions based on the gravity of the asserted error.” United States v. Turrietta, 696 F.3d 972, 976 n. 9 (10th Cir.2012); see Johnson v. United States, 520 U.S. 461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (“the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure.”).

¶ 13 Second, Rice and Harris are in accord with the position of federal courts. See 2A Charles Alan Wright, Federal Practice & Procedure § 469 (3d ed.2000) (referencing the “well-settled doctrine that if no motion for judgment of acquittal was made ... an appellate court cannot review the sufficiency of the evidence, except under the plain error doctrine”).

¶ 14 Third, many states apply a plain error standard of review to unpreserved sufficiency of the evidence claims.⁶ Much of the seemingly contrary authority—like the third category of Colorado cases—reviews unpreserved sufficiency of the evidence claims under a de novo scope of review, without considering the plain error standard of review.⁷

¶ 15 Fourth, applying only plain error review to unpreserved sufficiency claims furthers the policies supporting this limited review. As explained in Hagos v. People, 2012 CO 63, 288 P.3d 116:

Plain error review reflects “a careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed.” Plain error review allows the opportunity to reverse convictions in cases presenting particularly egregious errors, but reversals must be rare to maintain adequate motivation among trial participants to seek a fair and accurate trial the first time.

Id. at ¶ 23 (citation omitted). Requiring defendants to raise issues before the trial court “conserve[s]...