People v. Rhodus

• Decision Date: 23 August 2012
• Docket Number: No. 09CA2634.,09CA2634.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Tonya Ann RHODUS, Defendant–Appellant.
• Court: Colorado Court of Appeals

303 P.3d 109

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

v.Tonya Ann RHODUS, Defendant–Appellant.

No. 09CA2634.

Colorado Court of Appeals, Div. IV.

Aug. 2, 2012.

Rehearing Denied Aug. 23, 2012.

John W. Suthers, Attorney General, Jillian Price, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge LICHTENSTEIN.

¶ 1 Defendant, Tonya Ann Rhodus, appeals the judgment of conviction following jury verdicts finding her guilty of first degree criminal trespass, theft by receiving, and vehicular eluding. On appeal, Rhodus claims (1) there was insufficient evidence to sustain each of her convictions, (2) the trial court erred by allowing a police officer to provide expert testimony in the guise of lay opinion testimony, and (3) the prosecutor improperly argued facts not in evidence during closing arguments. Answering a question of first impression regarding what conduct must be proven to establish “entry” of a motor vehicle, we vacate her conviction for first degree criminal trespass, and affirm the judgment in all other respects.

I. Sufficiency of the Evidence

¶ 2 We conclude that there was insufficient evidence to support the first degree criminal trespass conviction, but the evidence was sufficient as to the remaining convictions.

A. Standard of Review

¶ 3 We review a sufficiency of the evidence challenge de novo. Clark v. People, 232 P.3d 1287, 1291 (Colo.2010). In doing so, we must determine, after viewing all the evidence as a whole and in the light most favorable to the prosecution, whether there was sufficient evidence to prove the charges beyond a reasonable doubt. Id.

B. Factual Background

¶ 4 At trial, the jury was presented with the following evidence. Between November 26 and 28, 2008, C.M.'s 1996 silver Honda Prelude was stolen. The car was worth approximately $2,675. In the early morning hours of December 1, 2008, the police informed her that her car had been recovered.

¶ 5 Meanwhile, a silver Honda Prelude was involved in an incident on November 30, 2008, and recovered by police late that night. Earlier that evening, B.C. saw a female driving the Honda slowly down the street in front of her house. After the Honda turned the corner, B.C. heard a door slam. She saw a tall man walk in front of her house and come toward her driveway. B.C.'s son, who was also at home, told her that he could see the man attempting to break into B.C.'s car. After B.C. yelled at the man, he walked away.

¶ 6 B.C. and her son then saw what B.C. described as the same Honda slowly passing her home. B.C. testified that she saw the car's door open as if it were picking someone up. She could not say whether the man who walked toward her house was the same person who got into the car. The son testified that he could not see whether anyone got into the car, nor could he see where the man went.

¶ 7 The man was never identified or apprehended. However, when B.C. checked on her own car, the car door was open. She recalled that she had locked the door earlier that night.

¶ 8 A police officer dispatched to the area searched for the Honda that had just left the area. He found it parked on a residential street near B.C.'s home with the motor running. As he approached the car, he saw a single occupant, who was subsequently identified as Rhodus, in the driver's seat. When the officer walked up to the car, Rhodus sped away.

¶ 9 Another officer, who had just arrived in his cruiser, turned on his lights and sirens and pursued the fleeing car. During the chase, Rhodus drove well over the speed limit and around several sharp corners, crossing into the opposite lane. Twice, she suddenly slammed on her brakes, “brake-checking” the officer. She eventually turned into a cul-de-sac, drove over a residential front lawn and between a home and a large tree, and exited the cul-de-sac. Throughout the chase, no pedestrians or traffic were in the area.

¶ 10 The pursuing officer briefly lost sight of the car, but then found it abandoned on the front lawn of another home. It was partially obscured by a large pickup truck, the driver's door was open, and the car was running with no key in the ignition.

¶ 11 Shortly thereafter, a third officer spotted Rhodus standing by a van in the area near where the chase had occurred. The officer detained her until the pursuing officer arrived and identified her as the driver of the car.

¶ 12 The prosecution charged Rhodus with first degree criminal trespass of B.C.'s car, theft by receiving of C.M.'s 1996 Honda Prelude, and vehicular eluding. A jury found her guilty as charged and the court sentenced her to eight years intensive supervision probation on the theft by receiving count, with a suspended six-year term in the Department of Corrections. The court imposed concurrent six-year intensive supervision probation terms on the remaining two convictions.

¶ 13 This appeal followed.

C. First Degree Criminal Trespass

¶ 14 Rhodus contends there was insufficient evidence to support her conviction for first degree criminal trespass of B.C.'s car because there was no evidence that anyone had entered it, which is an element of the crime. We agree with this contention.

¶ 15 “A person commits the crime of first degree criminal trespass ... if such person enters any motor vehicle with intent to commit a crime therein.” § 18–4–502, C.R.S.2011. Additionally, under a complicity theory, “[a] person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense.” § 18–1–603, C.R.S.2011.

¶ 16 At trial, the prosecution argued that the tall man seen by B.C. had committed criminal trespass by opening the locked car door and Rhodus was guilty of that offense under a complicity theory. According to a witness's testimony at trial, “[The man] was standing next to [B.C.'s car]. And he was like looking inside. It looked like he was trying to either mess with the door hinge or the window itself, the bottom.... He was at the window doing something.” However, no evidence was presented indicating that anything inside the car had been moved, damaged, or taken.

¶ 17 The criminal trespass statute requires that a person “enters” a motor vehicle. § 18–4–502. Neither statute nor Colorado case law has defined what specific conduct must be proven to establish an “entry” of a motor vehicle. However, a few Colorado cases have addressed “entry” in the context of the burglary statutes. Therefore, we turn to these cases for guidance.

¶ 18 Our supreme court has held in a burglary case that the act of opening a trailer door that had been latched is insufficient to constitute an entry of the trailer. People v. Simien, 656 P.2d 698, 700 (Colo.1983). In Simien, the owner of a roofing company closed and latched a trailer full of roofing materials that was on a job site. Later that night, the defendant and his brother went to the site to steal roofing materials. The defendant or his brother opened the trailer door. A roll of roofing material was found on the ground, but the owner was unable to say whether the roll had been there when he latched the trailer. The supreme court concluded that this evidence was insufficient to prove beyond a reasonable doubt that the structure had been entered. Id. At most, the opening of the trailer door constituted a substantial step toward the commission of the offense, and as such, was sufficient to establish only an attempted burglary. Id.

¶ 19 A division of this court also considered “entry” in a case involving second degree burglary of a building. While not addressing the sufficiency of the evidence, the division approved, as a correct statement of the law, a jury instruction stating, “The intrusion of any body part into the prohibited premises is sufficient to constitute entry.” See People v. Gonyea 195 P.3d 1171, 1174–75 (Colo.App.2008). The division concluded that the instruction was supported by People v. Gomez, 189 Colo. 91, 94, 537 P.2d 297, 299 (1975), “which implied that merely reaching a hand inside [a] store window was sufficient to constitute entry into the store.” Gonyea, 195 P.3d at 1175. The division stated that this implication was consistent with the great weight of authority in other jurisdictions holding, under their burglary statutes, that an “entry” occurs when any part of the defendant's person passes the line of the threshold into the protected premises. Id. (citing Charles E. Torcia, Wharton's Criminal Law § 322 (15th ed. 1995)).

¶ 20 We discern no meaningful difference between the requisite conduct constituting wrongful “entry” for purposes of burglary of structures and for purposes of criminal trespass of motor vehicles. Consequently, we are persuaded that an “entry” for purposes of criminal trespass of a motor vehicle requires an intrusion into the protected area of the motor vehicle.¹

¶ 21 Other jurisdictions have likewise required the crossing of a threshold into the protected area of the motor vehicle under statutes similar to ours. These cases generally recognize an “entry” of the vehicle so long as there is an intrusion into the interior space of the vehicle, either with the whole or any part of the body or with an instrument appurtenant to the person's body, if it is introduced for the purpose of committing a crime therein. See, e.g., State v. Sneed, 38 N.C.App. 230, 247 S.E.2d 658, 659 (1978) (leaning through an open door with the upper body actually in the vehicle constitutes entry); Richardson v. State, 888 S.W.2d 822, 824 (Tex.Crim.App.1994) (reaching into the open bed of a pickup, which was construed to be an interior portion of the truck, constitutes an entry); cf. Gant v. State, 640 So.2d 1180, 1182 (...