People v. McMinn
| Decision Date | 20 June 2013 |
| Docket Number | Court of Appeals No. 10CA0734 |
| Citation | 412 P.3d 551 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Glenn MCMINN, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Douglas K. Wilson, Colorado State Public Defender, Andrea R. Gammell, Deputy State Public Defender, Britta Kruse, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.
Opinion by JUDGE GABRIEL
¶ 1 Defendant, Glenn McMinn, appeals the judgment of conviction entered on a jury verdict finding him guilty of, among other things, four counts of vehicular eluding, four counts of eluding a police officer, and one count of menacing. We conclude that (1) under double jeopardy principles, the four convictions for vehicular eluding are separate and do not merge, and the four convictions for eluding a police officer are separate and do not merge; (2) there was no plain error in the admission of a police sergeant's testimony regarding certain calculations that he made and his opinion that McMinn's truck was a deadly weapon; and (3) there was no plain error in the prosecutor's closing argument. Accordingly, we affirm.
¶ 2 McMinn and his girlfriend got into a fight, and he called the police. When a police officer, Officer Anderson, arrived at his house, McMinn was already in his pickup truck. He backed out of his driveway and accelerated. Because there was packed snow and ice on the road, the truck slid sideways, striking the officer. McMinn then drove away.
¶ 3 Thereafter, a second officer, Officer Berry, spotted McMinn's truck and followed it. Officer Berry did not immediately pull McMinn over, however, because he wanted backup. A third officer, Officer Clements, then arrived, and Officer Berry signaled for McMinn to stop. McMinn did not do so but rather accelerated, with the two officers, in separate cars, now in pursuit. During this chase, McMinn drove into a residential neighborhood, ending in a cul-de-sac. The two officers positioned their cars to prevent him from exiting the cul-de-sac, but McMinn managed to drive out, and the officers again pursued him.
¶ 4 Thereafter, Officer Clements lost sight of McMinn, and Officer Berry took the lead in the pursuit. McMinn entered another neighborhood, turned into a dead-end street, and stopped. Officer Berry again tried to block the street with his car, and he exited his vehicle and walked toward the truck. McMinn, however, who was still in the truck, accelerated in Officer Berry's general direction. Officer Berry yelled at McMinn to stop, but McMinn continued coming toward the officer at what the officer estimated to be approximately twenty miles per hour. The officer then fired two shots into McMinn's vehicle, but McMinn drove away.
¶ 5 Shortly thereafter, a fourth officer, Deputy Glassburner, saw McMinn's vehicle and became the primary officer in pursuit. Deputy Glassburner activated his siren, but McMinn did not stop. Deputy Glassburner then tried an offensive maneuver called a precision immobilization technique (PIT), which was designed to end the pursuit by hitting the nose of the deputy's vehicle into the back fender of McMinn's truck, which would cause the truck to rotate. The PIT was unsuccessful, however, because McMinn was able to "power out" of the maneuver by accelerating.
¶ 6 Officer Anderson then became the primary officer in pursuit. During this portion of the chase, McMinn spun into the oncoming lane of traffic and drove in that lane for approximately four or five blocks. Shortly after returning to the correct lane, he slid off the right-hand side of the road onto the shoulder. Officer Anderson pushed his vehicle into McMinn's truck to force it further downhill, and although McMinn tried to pull away, his truck got caught in the snow, and he was arrested.
¶ 7 The entire chase lasted approximately eighteen minutes.
¶ 8 Based on these events, the prosecution initially charged McMinn, as pertinent here, with four counts of vehicular eluding, one for each of the pursuing officers, and with menacing of Officer Berry, based on the incident in the dead-end street.
¶ 9 At trial, the jury heard testimony from the four officers who had pursued McMinn and from Sergeant Pinson, who, among other things, had investigated the incident in the dead-end street. Although Sergeant Pinson was purportedly testifying as a lay witness, he described his training in accident reconstruction at some length. He then proceeded to testify to various calculations that he made concerning the incident in the dead-end street, including calculations as to the acceleration rate of McMinn's truck, its speed as it approached Officer Berry, and the fact that when accelerating past Officer Berry, it was exerting approximately 171,000 foot pounds of force and would likely kill a pedestrian if it hit him or her. Based on the foregoing, Sergeant Pinson testified that in his opinion, McMinn's truck, when driven at the speed McMinn was driving when he approached Officer Berry, was a deadly weapon.
¶ 10 Before closing arguments, McMinn moved for a judgment of acquittal on three of the four counts of vehicular eluding, arguing that the law could not support four separate charges of vehicular eluding when, in his view, there was only one continuing and uninterrupted course of conduct. The prosecution responded, in pertinent part:
¶ 11 The court agreed with this portion of the prosecution's argument, ruling that the charges did not merge because "each officer, Officer Berry, Officer Clements, Officer Anderson and Officer Glassburner, ... testified about being eluded during separate times at separate locations, and they all had separate facts to them."
¶ 12 McMinn then requested that the court instruct the jury on the lesser nonincluded offense of eluding a police officer. He specifically requested that the court add one count of eluding a police officer for each count of vehicular eluding. The court granted this motion.
¶ 13 The case proceeded to closing arguments, and the prosecutor argued, as pertinent here, that although McMinn's theory of defense instruction stated that he had attempted to elude the officers safely, the concept of such safe eluding is "an oxymoron," "a contradiction in terms." The prosecutor also argued that the lesser nonincluded offenses were proffered as part of a defense strategy to play into people's "natural tendency to want to compromise."
¶ 14 The jury convicted McMinn of the four counts of vehicular eluding, the four counts of eluding a police officer, and the menacing count, among other charges.
¶ 15 McMinn now appeals.
¶ 16 McMinn contends that under double jeopardy principles, his four convictions for vehicular eluding must merge with one another and his four convictions for eluding a police officer must also merge with one another. We are not persuaded.
¶ 17 By moving on double jeopardy grounds for a judgment of acquittal on three of the four vehicular eluding counts, McMinn preserved his present challenge to those convictions, notwithstanding the People's argument that the motion had to be made before trial. See People v. Gordon, 160 P.3d 284, 286 (Colo.App.2007) (). As to the lesser nonincluded offenses of eluding a police officer, we view the preservation issue as close, but we will assume without deciding that McMinn's motion as to the vehicular eluding counts was sufficient to preserve the identical issue as to the eluding a police officer counts.
¶ 18 We review de novo a claim that a conviction violates a defendant's constitutional protection against double jeopardy. People v. Arzabala, 2012 COA 99, ¶ 19, 317 P.3d 1196, 1203, 2012 WL 2353784.
¶ 19 Multiplicity is the charging of the same offense in several counts, culminating in multiple punishments. People v. Vigil, 251 P.3d 442, 448 (Colo.App.2010). Multiplicitous convictions are prohibited because they violate the constitutional prohibition against double jeopardy. Id.
¶ 20 To determine whether a defendant's conduct may support multiple convictions, we first identify the legislatively defined unit of prosecution. Id. "The unit of prosecution is the manner in which a criminal statute permits a defendant's conduct to be divided into discrete acts for purposes of prosecuting multiple offenses." Woellhaf v. People, 105 P.3d 209, 215 (Colo.2005).
¶ 21 To determine the unit of prosecution, we look exclusively to the statute and, where possible, seek to discern the legislative intent from the plain and ordinary meaning of the statutory language. Id. If, however, the statutory language is ambiguous, then we look to principles of statutory construction to ascertain legislative intent. Id.
¶ 22 Once we have identified the unit of prosecution, we then examine the evidence to determine whether the defendant's conduct constituted factually distinct offenses. Vigil, 251 P.3d at 448. To determine whether offenses are factually distinct, courts have considered (1) whether the acts occurred at different times and were separated by intervening events; (2) whether there were separate volitional acts or new volitional departures in the defendant's course of conduct; and (3) factors such as temporal proximity, the...
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