People v. Lahr
| Decision Date | 25 April 2013 |
| Docket Number | Court of Appeals No. 10CA0501,Court of Appeals No. 10CA0527 |
| Citation | 2013 COA 57 |
| Parties | The People of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Jacob John Lahr, Defendant-Appellant and Cross-Appellee. |
| Court | Colorado Court of Appeals |
Jefferson County District Court Nos. 08CR1439 & 08CR2280
JUDGMENT AFFIRMED, SENTENCE VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Opinion by JUDGE J. JONES
¶1 Defendant, Jacob John Lahr, appeals the judgment of conviction entered on jury verdicts finding him guilty of aggravated robbery, menacing, aggravated motor vehicle theft, possession of a controlled substance, and possession of a weapon by a previous offender (POWPO). The People appeal the district court’s sentence. We affirm the judgment, vacate the aggravated robbery sentence, and remand the case for entry of a corrected sentence.
¶2 According to the prosecution’s evidence, defendant stole a car. After stealing and exchanging a series of license plates, he drove that car, with stolen plate 787NAZ, to a Motel 6. He walked into the lobby, lifted his jacket to reveal a black-handled handgun near his left chest area, and told an employee, S.H., “Give me the money.” S.H. put the register drawer on the counter, and defendant placed the bills in his pocket and left. S.H. read the license plate number on the car as defendant drove away, and she reported the robbery to police.
¶3 S.H. described the robber as being five feet ten inches tall with a medium build, and wearing a black beanie hat and a dark coat that fell below his hip. She later identified defendant as the robber from a photo array.
¶4 About three hours after the Motel 6 robbery, defendant walked into Fascinations, a store less than five miles away from the Motel 6.1 He shopped for fifteen to twenty minutes before approaching the counter with several items. At the counter, he opened his jacket to show a black-handled gun in a shoulder holster under his left arm, and told an employee, E.O., “Hurry, give me the money in the drawer, hurry up.” She put cash from the drawer into a Fascinations bag, along with four videos defendant had brought to the counter. Defendant took the bag and left the store, while E.O. went to the back of the store to report the robbery to her supervisor.E.O. described the robber as having dreadlock-style hair, wearing a black beanie hat, a black muscle shirt, and a black jacket that went past his waist. But she was later unable to identify the robber from a photo array that included defendant’s picture.
¶5 Fascinations’ supervisor, J.S., had twice offered assistance to defendant while he was shopping in the store, and described him as being six feet tall with a medium build, wearing a fleece beanie, a black jacket, and a black shirt, and having medium-length hair.J.S. later identified defendant as the robber from a photo array.
¶6 Defendant stole an SUV about twelve hours after the Fascinations robbery. He put a stolen license plate on the SUV, and parked it near the place at which he was arrested shortly thereafter. In the SUV, the police found, as relevant here, a gun holster, a revolver, a dark coat with keys to the stolen car, a black tank top, a brown wig, baggies containing methamphetamine, two videos consistent with those taken from Fascinations, a Fascinations store bag, and defendant’s fingerprints.
¶7 Police later recovered the stolen car likely used in the Motel 6 robbery, then bearing stolen license plate 871HBG. In the car they found, as relevant here, cigarette butts with defendant’s DNA and a hair matching the wig found in the SUV.
¶8 The People charged defendant, in two separate cases in Jefferson County, with two counts of aggravated robbery (of the Motel 6), one count of menacing, one count of aggravated motor vehicle theft (of the SUV), one count of POWPO, one count of possession of a controlled substance, and eight habitual criminal counts. The district court granted the People’s motion to join the cases. The court also granted defense counsel’s motion to bifurcate the trial of the POWPO charge from the trial on the other charges.
¶9 The People moved to introduce evidence of the Fascinations robbery. At a pretrial hearing, the People argued that the evidence was relevant and admissible under CRE 404(b) as res gestae evidence, to identify defendant as the perpetrator of the Motel 6 robbery, and to show a common plan, scheme, or design. The court ruled that evidence of the Fascinations robbery was admissible to prove identity under the four-part Spoto test. See People v. Spoto, 795 P.2d 1314, 1319 (Colo. 1990).
¶10 The jury first found defendant guilty of aggravated robbery, menacing, aggravated motor vehicle theft, and possession of a controlled substance. The People then presented evidence on the bifurcated POWPO charge. The jury found defendant guilty of that offense as well. The court adjudicated defendant a habitual criminal, and sentenced him to two terms of forty-eight years in the custody of the Department of Corrections, to be served concurrently.
¶11 On appeal, defendant contends that the district court erred by (1) allowing evidence of the Fascinations robbery; and (2) denying his motion for a new trial after the court mistakenly referred to the POWPO charge before the jury deliberated on the other charges. The People contend on cross-appeal that the district court erred in its interpretation of the statutory presumptive range for an aggravated robbery sentence. We address each contention in turn.
¶12 Defendant first contends that the district court erred by incorrectly applying the second part of the Spoto test for admission of other act evidence.2 We are not persuaded.
¶13 We review a district court’s decision to admit other act evidence for an abuse of discretion, and we will not disturb that ruling on appeal unless it was manifestly arbitrary, unreasonable, or unfair. Yusem v. People, 210 P.3d 458, 463 (Colo. 2009); People v. Rowe, 2012 COA 90, ¶35.
¶14 Evidence of other crimes, wrongs, or acts is admissible for purposes independent of an inference of bad character, subject to a four-part test initially articulated in Spoto. Yusem, 210 P.3d at 463; People v. Herdman, 2012 COA 89, ¶43; see CRE 404(b). Before admitting such evidence, the court must find that (1) the evidence relates to a material fact; (2) the evidence is logically relevant; (3) the evidence’s logical relevance is independent of the prohibited inference that the defendant committed the crime charged because he was acting in conformity with his bad character; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Spoto, 795 P.2d at 1318.
¶15 Evidence is logically relevant if it has “any tendency to make the existence of [a material fact] more probable or less probable than it would be without the evidence.” CRE 401; see Yusem, 210 P.3d at 463; Spoto, 795 P.2d at 1318. In this case, the district court ruled that evidence of the Fascinations robbery was logically relevant because it tended to make more probable the material fact that defendant was the person who robbed the Motel 6 and/or stole the SUV. We find no abuse of discretion in that ruling.
¶16 Defendant’s theory of the case was that another person committed both the Motel 6 robbery and the SUV theft. At trial, defendant challenged S.H.’s identification because she had been only ninety-five percent sure of the identification from the photo array. Defendant admitted that he had been in the car where his DNA was found, but denied that the car had been used in the Motel 6 robbery (in part because the plate found on the recovered car was not the same as the plate S.H. had seen). Defendant also admitted that he had been in the SUV, but denied that he had stolen it. Thus, identity was a material fact in dispute at trial.
¶17 Citing People v. Rath, 44 P.3d 1033 (Colo. 2002), defendant argues that the robberies of the Motel 6 and Fascinations were too dissimilar and insufficiently unique for evidence of the Fascinations robbery to be logically relevant to the identity of the perpetrator of the Motel 6 robbery. See id. at 1042 n.7 . Defendant points to the following dissimilar facts about the perpetrator of the Fascinations robbery: (1) he was described as having dreadlocks, and (2) he shopped for a while before robbing the store.
¶18 But, for evidence of another crime to be admissible for the purpose of proving identity, the other crime need not be identical in all respects. People v. Garner, 806 P.2d 366, 375 (Colo. 1991). Rather, the evidence of another crime and the crime charged, considered in its totality, must manifest distinctive features that make it more likely that the person who committed the other crime also committed the crime charged. Id. And a court may consider numerous less unique factors in determining the degree of similarity between the “other act” and the crime charged. See United States v. Shumway, 112 F.3d 1413, 1420 (10th Cir. 1997) (); see also United States v. LaFlora, 146 Fed. App’x...
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