People v. Schreiber
Decision Date | 15 October 2009 |
Docket Number | No. 08CA1721.,08CA1721. |
Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Timothy Edward SCHREIBER, Defendant-Appellant and Cross-Appellee. |
Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, CO, for Plaintiff-Appellee and Cross-Appellant.
Leslie A. Goldstein, L.L.C., Leslie A. Goldstein, Steamboat Springs, CO, for Defendant-Appellant and Cross-Appellee.
Opinion by Judge WEBB.
We affirm the judgment of conviction of defendant, Timothy E. Schreiber, entered on a jury verdict finding him guilty, as relevant here, of felony indecent exposure, see section 18-7-302(1), (4), C.R.S.2009.
Because Schreiber's assertions of evidentiary error do not warrant publication under C.A.R. 35(f), we begin with the Attorney General's contention on cross-appeal that the trial court erred by requiring the prosecution to prove Schreiber's prior indecent exposure convictions to the jury beyond a reasonable doubt. This question is unresolved in Colorado. We disapprove of the trial court's ruling because the statute is a sentence enhancer and prior convictions are exempt from the jury requirement imposed by Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Schreiber was charged with felony indecent exposure under section 18-7-302(4), based on five prior convictions. Before trial, the court ruled that those convictions constituted elements of felony indecent exposure, which had to be proven to the jury beyond a reasonable doubt. As a consequence of the indictment, Schreiber enjoyed all procedural protections attendant to a felony prosecution and trial.
According to the prosecution's evidence, Schreiber exposed his genitalia while masturbating in front of an employee at a laundromat. During the guilt phase, the prosecution offered evidence that Schreiber had previously exposed himself as evidence of other sexual acts under section 16-10-301(1), C.R.S. 2009, but not that he had been convicted of such offenses. After Schreiber was found guilty of the substantive offenses, the prosecutor presented evidence of his five prior convictions, and the jury found beyond a reasonable doubt that he had five prior convictions.
Whether a statutory provision is a sentence enhancer or a substantive element of the offense presents a legal question that we review de novo. See People v. Hogan, 114 P.3d 42, 57 (Colo.App.2004). We ask whether "its proof, while raising the felony level of an offense, is not necessarily required to secure a conviction." People v. Leske, 957 P.2d 1030, 1039 (Colo.1998).
Section 18-7-302(1) provides, "[a] person commits indecent exposure if he knowingly exposes his genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person." Under section 18-7-302(4), "[i]ndecent exposure is a class 6 felony if the violation is committed subsequent to two prior convictions of a violation of this section or of a violation of a comparable offense...." Otherwise, it is a class 1 misdemeanor. § 18-7-302(2)(b).
We conclude that section 18-7-302(4) establishes a sentence enhancer, not a substantive offense, because: (1) a defendant may be convicted of the underlying offense without any proof regarding the sentence enhancer; and (2) the sentence enhancement provision only increases the potential punishment. Vega v. People, 893 P.2d 107, 112 (Colo.1995) (§ 18-18-107); see People v. Whitley, 998 P.2d 31, 34 (Colo.App.1999) (§ 18-18-405(2)(a)(II)).
We further conclude that the court decides this sentence enhancer because, under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely, 542 U.S. at 303, 124 S.Ct. 2531, a defendant People v. French, 165 P.3d 836, 841 (Colo.App.2007); see People v. Fiske, 194 P.3d 495, 496 (Colo.App.2008) (citing People v. Huber, 139 P.3d 628, 632-33 (Colo.2006)) ("A prior conviction, even if the conviction is for a misdemeanor, is a Blakely-exempt fact.").
We reject Schreiber's argument—based on Justice Thomas' concurring opinion in Apprendi and Justice Scalia's dissent in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) ( )—that section 18-7-302(4) should not be read as a sentence enhancer because increasing a misdemeanor to a felony subjects a defendant to serious collateral consequences. Such consequences include being prevented from voting or registering to vote, see section 1-2-103(4), C.R.S.2009, and being potentially subject to sentencing as a habitual criminal, see section 18-1.3-801(2), C.R.S.2009.
The majority of other state courts to have addressed similar collateral consequences arguments still follow Apprendi and Almendarez-Torres. See State v. Palmer, 189 P.3d 69, 76 (Utah Ct.App.2008) ( )(collecting cases), aff'd, 220 P.3d 1198 (Utah2009); but see United States v. Rodriguez-Gonzales, 358 F.3d 1156, 1160 (9th Cir. 2004) () . Moreover, while acknowledging "some doubt about the continued validity of the prior conviction exception," our supreme court has held "that it remains valid after Blakely." Lopez v. People, 113 P.3d 713, 723 (Colo. 2005); see Huber, 139 P.3d at 631 ( ).
Accordingly, we disapprove of the trial court's ruling requiring the prosecution to prove Schreiber's prior convictions under section 18-7-302(4) to the jury rather than to the court. We further conclude that because section 18-7-302(4) does not establish the burden of proof, in a trial to the court the prosecution need only prove the existence of prior conviction facts by a preponderance of the evidence. See People v. Lacey, 723 P.2d 111, 114 (Colo.1986); Whitley, 998 P.2d at 34. However, we express no opinion whether a defendant who was denied the procedural protections required in felony trials could challenge elevation of his conviction to felony status at the time of sentencing on this basis.
We reject Schreiber's evidentiary contentions based on the trial court's broad discretion in such rulings. See Yusem v. People, 210 P.3d 458, 463 (Colo.2009).
Under section 16-10-301(1), "evidence of other sexual acts is typically relevant and highly probative, and it is expected that normally the probative value of such evidence will outweigh any danger of unfair prejudice, even when incidents are remote from one another in time." The prosecution must also satisfy the four-part test in People v. Spoto, 795 P.2d 1314, 1318 (Colo.1990). People v. Underwood, 53 P.3d 765, 769 (Colo. App.2002).
Here, the record supports the trial court's findings that:
• Evidence Schreiber had exposed himself to women on other occasions was relevant to the material issue of whether Schreiber knowingly, as opposed to accidentally, exposed himself in this case;
• Such evidence made it more probable that he was aware exposure was likely to cause affront or alarm to the victim;
• Thus, the evidence was relevant independent of the intermediate inference that defendant was a person of bad character; and
• Under CRE 403, the prejudicial effect of this evidence did not exceed its probative value, People v. Salas, 902 P.2d 398, 401 (Colo.App.1994) (), especially because the court gave a limiting instruction, People v. Vialpando, 954 P.2d 617, 623 (Colo.App.1997).
Schreiber's statement to the victim, "do you have problems with women masturbating in the bathroom," made on the day after the offense, was admissible as res gestae because:
• This statement was proximate in time to the alleged offense and was useful to complete the story for the jury. See People v. Quintana, 882 P.2d 1366, 1373 (Colo.1994) ( ).
• It was logically relevant to prove Schreiber's motive to cause affront or alarm to the victim and was not so inflammatory as to require exclusion under CRE 403. See Quintana, 882 P.2d at 1373-75.
Evidence of similar containers of lubricating jelly found in the laundromat restroom and in Schreiber's backpack when he was arrested was relevant based on his admission to using lubricating jelly in his "daily masturbating sessions," which makes the alleged indecent exposure at the laundromat "more probable ... than it would be without the evidence." See CRE 401.
Affording this evidence "the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected," People v. Gibbens, 905 P.2d 604, 607 (Colo.1995), it was not excludable under CRE 403. See also People v. District Court, 785 P.2d 141, 146 (Colo. 1990) ().
The judgment is affirmed and the trial court's ruling disapproved.
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