People v. Sherwood, 99CA0260.

• Decision Date: 08 June 2000
• Docket Number: No. 99CA0260.,99CA0260.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Glover SHERWOOD, Defendant-Appellant.
• Court: Colorado Court of Appeals

5 P.3d 956

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Glover SHERWOOD, Defendant-Appellant.

No. 99CA0260.

Colorado Court of Appeals, Div. I.

June 8, 2000.

Ken Salazar, Attorney General, Dawn M. Weber, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Kyle Ipson, Durango, Colorado, for Defendant-Appellant.

Opinion by Judge KAPELKE.

Defendant, William Glover Sherwood, appeals from the judgment of conviction entered on a jury verdict finding him guilty of vehicular eluding. We affirm.

The criminal charges against defendant stem from a police chase. A police officer, driving an unmarked patrol car, saw a pickup truck driven by defendant enter the opposite traffic lane and weave between lanes. The officer began to follow the truck.

The officer called for assistance to initiate a stop. The truck continued to travel erratically, passing two cars and weaving between lanes. In the process of making a turn, the truck partially crossed over the double yellow line, forcing a car traveling in the opposite direction onto the shoulder of the road. By this time, a marked patrol car had joined the pursuit.

The driver of the marked patrol car turned on his overhead lights. When the driver of the truck failed to respond, the marked patrol car activated his siren. Again, the truck did not respond. The truck then crossed the solid double yellow line, started to travel in the opposite direction, and forced another car onto the shoulder. By this time, another marked patrol car had joined the pursuit, and it also had its siren and overhead lights activated. After driving a few blocks further, the truck again crossed the double yellow lines, forcing a third car onto the shoulder.

Traveling at speeds between 30 and 40 miles an hour, the three patrol cars attempted a rolling roadblock to try to bring the truck to a stop. A rolling roadblock involves surrounding the vehicle being pursued and gradually bringing it to a stop.

The rolling roadblock was unsuccessful. Although the patrol cars were able to bring the truck to "almost a complete stop," defendant nevertheless managed to squeeze the truck between the patrol cars and continue driving. Shortly thereafter, the patrol cars attempted a second rolling roadblock, which proved successful.

The distance from the point at which the first marked patrol car had joined the pursuit to where defendant's truck finally came to a stop was approximately sixteen blocks. Defendant was identified as the driver of the truck. His blood alcohol content following his arrest was determined to be .213.

Defendant was charged with vehicular eluding, driving under the influence (DUI), driving under the influence per se, and weaving. He pled guilty to all charges but the vehicular eluding charge, which was tried to a jury.

At trial, following the close of the prosecution's case-in-chief, defendant moved to dismiss, arguing that the evidence of the element of elusive behavior was insufficient. Defendant also argued that, even assuming that squeezing through the patrol cars during the first rolling roadblock could be said to have constituted elusive behavior, there was no showing that this conduct created a substantial risk of bodily injury to the police officers driving the patrol cars since it occurred while the patrol cars and defendant's truck were traveling at a slow speed. The court denied the motion, finding that (1) defendant's "refusal to pull over" could amount to elusive behavior; (2) defendant's conduct in weaving in and out of traffic lanes was elusive and created a substantial risk of harm to oncoming traffic; and (3) defendant's "pulling out and around" the two marked patrol cars was also elusive and created a substantial risk of bodily injury to the officers driving the patrol cars.

In his rebuttal closing argument, the prosecutor, referring to the case as being "more than just a DUI case," stated that "this crime occurred not just at one particular point, but it occurred [over a span of several blocks], and if you find that the risk of bodily injury [occurred in two separate blocks] but the eluding occurred [later in another block] at the rolling roadblock, that's fine."

Defendant objected to the prosecutor's statements, arguing that they misstated the law. The court held a bench conference off the record, but did not rule on the objection. The prosecutor then continued with his argument, saying, in effect, that the crime of vehicular eluding did not require proof that the act of eluding was simultaneous with the reckless driving.

At the end of the closing arguments, defendant again objected to the prosecutor's description of the requirements of vehicular eluding and urged that, for purposes of the statute, "reckless driving has to occur at the same time that the eluding occurs." In overruling defendant's objection, the trial court stated, "it was my ruling at the bench conference that the episode began at the time it became arguable that the defendant knew or should have known that he was being pursued by peace officers," and "after that time, I believe it is not essential that the remaining elements occur in any particular order."

I.

Defendant initially contends that the trial...