People v. McIntier

• Decision Date: 01 December 2005
• Docket Number: No. 03CA2276.,03CA2276.
• Citation: 134 P.3d 467
• Parties: The PEOPLE of the State Of Colorado, Plaintiff-Appellee, v. Jimmy Dale McINTIER, Defendant-Appellant.
• Court: Colorado Court of Appeals

134 P.3d 467

The PEOPLE of the State Of Colorado, Plaintiff-Appellee, v. Jimmy Dale McINTIER, Defendant-Appellant.

No. 03CA2276.

Colorado Court of Appeals, Division II.

December 1, 2005.

Certiorari Dismissed March 31, 2006.

COPYRIGHT MATERIAL OMITTED

John W. Suthers, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Shann Jeffery, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

LOEB, J.

Defendant, Jimmy Dale McIntier, appeals from a judgment of conviction, entered after a trial to the court, on one count of retaliation against a witness, a class three felony. We affirm.

In 1999, defendant pleaded guilty to felony drug possession and was sentenced to five years in the Department of Corrections (DOC), plus mandatory parole. He was scheduled to be released on parole in late 2002. Defendant's preference was to finish serving his sentence in prison, because he was convinced he could not complete the three-year parole period without having his parole revoked and being reincarcerated, thereby losing certain prison privileges which he then possessed. Therefore, he sent a series of letters to the parole board requesting permission to serve out his term while incarcerated. He was dissatisfied with the responses he received from the parole board.

On November 19, 2002, defendant wrote a letter to the chief trial deputy district attorney who obtained the conviction against him for drug possession. Defendant's letter read in pertinent part:

Another result was you had to disclose the Confidential Informant [the witness's name]. Who by the way still lives in the same trailer in [a specified] Trailer Park there in Brighton . . . . My father died and I couldn't bury him . . . . Since my father passed on all I do is fantasize about violence. I fantasize I go buy a machete kick [the witness's] door in handcuff her and her husband duct tape their mouths. Make em watch while I cut thier little girls head off that's just the start of the fantasy. I further fantasize I cut her husbands dick and balls off shove them in his mouth then cut his head off. My fantasy gets really good with [the witness] I take a hammer break her back in pieces to where she is paralyzed, cut her eyeballs out heat grease to as hot as I can get it and dump it in her ears. Take anything worth any money I dial 911 on the way out cause I want her to live paralyzed, blind and deaf thinking about what I done to her family all because she made a living selling dope setting people up once in a while. . . . Eventually you are going to run for District Attorney, well unless I act out my fantasy and the press finds out you disclosed who the CI was and left her living in the same place. So enjoy the holidays. I'll be enjoying XMAS this year as you . . . have no choice but to let me go December 18 and give me a ride to Adams County.

The confidential informant referred to in the letter had provided information to the police that led to defendant's arrest in the drug case.

A special prosecutor charged defendant by information with one count of retaliation against a witness under the applicable version of § 18-8-706, C.R.S.2005 (amended in 2003 with language not pertinent here), and with four habitual criminal counts. Defendant waived his right to a jury trial and testified at the trial to the court. The court found him guilty of retaliation against a witness and entered judgment on the conviction. This appeal followed.

As pertinent here, § 18-8-706(1) provides:

An individual commits retaliation against a witness . . . if such person uses a threat. . ., which action is directed to or committed upon a witness . . . to any crime, an individual whom the person believes has been or would have been called to testify as a witness . . ., a member of the witness' family . . ., an individual in close relationship to the witness . . ., [or] an individual residing in the same household with the witness . . . as retaliation or retribution against such witness . . . .

In People v. Hickman, 988 P.2d 628, 644 (Colo.1999), the supreme court, in interpreting § 18-8-706(1), held that, to prove retaliation against a witness by threat, the prosecution must prove (1) the defendant threatened or committed harmful or injurious conduct toward a person protected by the statute; (2) the defendant made a threat or engaged in the conduct because the defendant knew or believed that the victim of the threat or conduct was a member of the class of protected persons; and (3) the defendant intended the threat or conduct as retaliation or retribution for the defendant's perception of the victim's relationship to criminal proceedings.

I.

Defendant contends that the information charging him with retaliation against a witness was insufficient to invoke the jurisdiction of the trial court because it omitted the requisite specific intent mens rea for the offense. We are not persuaded.

The sufficiency of a charge in an information is a question of law that we review de novo. People v. Melillo, 25 P.3d 769, 777 (Colo.2001).

An information is sufficient if it advises the defendant of the charge he or she is facing so that he or she can adequately defend himself or herself and be protected from further prosecution for the same offense. People v. Melillo, supra, 25 P.3d at 778; People v. Moore, 200 Colo. 481, 484, 615 P.2d 726, 728 (1980). When an information fails to charge a crime, the court acquires no jurisdiction. People v. Moore, supra, 200 Colo. at 485, 615 P.2d at 729. Crim. P. 7(b)(2) sets forth the requirements for determining whether an information is sufficient and thus invokes jurisdiction of the court. People v Melillo, supra, 25 P.3d at 777. Crim. P. 7(b)(2) provides:

The information shall be deemed technically sufficient and correct if it can be understood therefrom:

(I) That it is presented by the person authorized by law to prosecute the offense;

(II) That the defendant is identified therein, either by name or by the defendant's patterned chemical structure of genetic information, or described as a person whose name is unknown to the informant;

(III) That the offense was committed within the jurisdiction of the court, or is triable therein;

(IV) That the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction.

An information may be filed using the language of the statute defining the offense. See § 16-5-202(3), C.R.S.2005. The requirement that the information identify the essential elements of the crime charged is satisfied if the language in the charge tracks the statutory language. People v. Melillo, supra, 25 P.3d at 778.

Relying on People v. Hickman, supra, defendant argues that the information was insufficient to confer jurisdiction on the trial court because it did not expressly allege that he acted with specific intent. We disagree.

In Hickman, the supreme court held that § 18-8-706(1) is a specific intent offense and stated:

[B]oth the terms "retribution" and "retaliation" by definition require intentional conduct. A person can act in a retributive or retaliatory fashion only if she has a conscious objective to do so. Thus, the statute by the plain meaning of its terms requires the defendant to have as her conscious objective . . . the specific intent to retaliate or to seek retribution against a person protected by the statute because of that person's relationship to a criminal proceeding. Because the statute requires that the defendant act with a specifically defined conscious objective, we infer the culpable mental state of "intentional" even though the legislature deleted the term from the statute.

People v. Hickman, supra, 988 P.2d at 644-45.

Here, it is conceded that the information tracked the language of § 18-8-706(1). Under Hickman, the language of the statute necessarily encompasses the essential mens rea element of the offense that the threat be made with a conscious objective to retaliate against a protected person. Accordingly, we conclude the offense in the information here was charged with such degree of certainty as to confer jurisdiction on the trial court and allow it to pronounce judgment on the conviction. See Crim. P. 7(b)(2); People v. Melillo, supra.

II.

Defendant contends that the trial court erred in concluding that the evidence was sufficient to prove beyond a reasonable doubt that he was guilty of retaliating against a witness under § 18-8-706(1). We disagree.

When the sufficiency of the evidence is challenged on appeal, the reviewing court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. People v. Sprouse, 983 P.2d 771, 777 (Colo.1999); Kogan v. People, 756 P.2d 945, 950 (Colo. 1988).

The prosecution must be given the benefit of every reasonable inference that might be fairly drawn from the evidence. Further, the determination of the credibility of the witnesses is solely within the province of the fact finder, and it is the fact finder's function in a criminal case to consider and determine what weight should be given to all parts of the evidence and to resolve conflicts, testimonial inconsistencies, and disputes in the evidence. An appellate court is not permitted to act as a thirteenth juror and set aside a verdict because it might have drawn a different conclusion had it been the trier of fact. See Kogan v. People, supra; People v. Martinez, 36 P.3d 154, 163 (Colo.App.2001).

A.

Defendant first asserts that the evidence was insufficient to prove that the letter to the deputy district attorney explicitly communicated a threat as opposed to a description of a fantasy. We disagree.

A threat is a statement of purpose or intent to cause injury or harm to the person,...