People v. Sims
| Decision Date | 07 May 2020 |
| Docket Number | Court of Appeals No. 18CA0528 |
| Citation | 474 P.3d 189 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dustin Robert SIMS, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Danny Rheiner, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE VOGT*
¶ 1 In 2014, a jury convicted defendant, Dustin Robert Sims, of eluding or attempting to elude a police officer, aggravated driving after revocation prohibited (aggravated DARP), and two lesser offenses. On direct appeal, a division of this court concluded that police officers had given improper opinion testimony at trial about whether Sims's conduct amounted to "eluding," which was an ultimate issue to be decided by the jury. The division reversed in part and remanded for a new trial on the charges of eluding or attempting to elude and aggravated DARP. See People v. Sims , 2017 WL 2615474 (Colo. App. No. 15CA0475, June 15, 2017) (not published pursuant to C.A.R. 35(e) ).
¶ 2 At the second trial, Sims was again found guilty on those counts, and he now appeals. Sims first contends that the evidence was insufficient to sustain his conviction for eluding or attempting to elude a police officer (without that conviction, his DARP conviction would not be aggravated). Second, he contends that his eluding or attempting to elude conviction should have been merged into his conviction for aggravated DARP.
¶ 3 We disagree with his first contention but agree with the second. We therefore affirm the judgment in part, vacate it in part, and remand for further proceedings.
¶ 4 The evidence at the second trial in this case showed the following.
¶ 5 Sims was told to leave a rodeo in Estes Park, Colorado, when he became irate and belligerent following an unfounded allegation about a theft of a cowboy hat. Sims then drove to a local police station to lodge a complaint against the police officer who had been involved in the incident at the rodeo.
When the station was initially unable to provide Sims with a complaint form, he became frustrated and left. He described his mental state upon leaving the station as "enraged."
¶ 6 Meanwhile, the officer involved in the rodeo incident had been dispatched to bring a complaint packet to the station for Sims to fill out. The officer had learned through a records check after the incident that Sims's driving status had been revoked as a habitual traffic offender. When the officer was driving into the station parking lot, he observed Sims backing out of a parking space, and he saw that one brake light on Sims's car was out.
¶ 7 The officer, driving a marked patrol vehicle, tried to initiate a traffic stop of Sims's car by activating the vehicle's emergency lights. Sims did not pull over but continued driving, within the speed limit. The officer then sounded his siren, using three different siren tones, but Sims still did not respond. Another officer joined the pursuit, also activating his emergency lights and sirens, and other drivers pulled their cars off to let the officers pass. Sims kept driving, all the while within the speed limit. After pursuing Sims for just over three miles, the officers discontinued the pursuit at the city limits based on the local police department's policy.
¶ 8 A sergeant with the county sheriff's department heard about the pursuit over dispatch. After the local officers stopped their pursuit and asked the sheriff's department for help, the sergeant began pursuing and eventually caught up to Sims's car two-and-a-half miles down the road. He activated his emergency lights and sounded different sirens, including a very loud air horn. Sims kept driving, within the speed limit. During the sergeant's pursuit, he noticed Sims smoking a cigarette and flicking the ashes out the window. After pursuing Sims's car for two miles, the sergeant conducted a precision immobilization technique maneuver, causing Sims's car to spin off the road. Sims was arrested at the scene.
¶ 9 Sims testified that he was driving with loud music on and with an earbud in one ear and that he did not hear or see any police cars behind him.
¶ 10 The jury found Sims guilty on both counts.
¶ 11 Sims contends that the evidence was insufficient to sustain his conviction for eluding or attempting to elude a police officer because eluding or attempting to elude requires some type of "trick" or "evasive action" that makes it harder for the police to follow. He cites the following as possible examples: increasing one's speed, turning off one's headlights, swerving around other cars, or ducking onto a side road. He argues that "the prosecution has to show that a person did something more than simply refuse to stop," and that because "he just continued to drive normally, and he followed all applicable traffic regulations while doing so," the evidence was insufficient to sustain his conviction. We disagree.
¶ 12 When assessing the sufficiency of the evidence supporting a conviction, we review the record de novo to determine whether the relevant evidence, viewed as a whole and in the light most favorable to the prosecution, was sufficient to support the conclusion by a reasonable juror that the defendant was guilty beyond a reasonable doubt. Butler v. People , 2019 CO 87, ¶ 20, 450 P.3d 714.
¶ 13 We review issues of statutory construction de novo. Garcia v. People , 2019 CO 64, ¶ 33, 445 P.3d 1065.
¶ 14 The General Assembly has defined the crime of eluding or attempting to elude a police officer as follows:
Any operator of a motor vehicle who the officer has reasonable grounds to believe has violated a state law or municipal ordinance, who has received a visual or audible signal such as a red light or a siren from a police officer driving a marked vehicle showing the same to be an official police, sheriff, or Colorado state patrol car directing the operator to bring the operator's vehicle to a stop, and who willfully increases his or her speed or extinguishes his or her lights in an attempt to elude such police officer, or willfully attempts in any other manner to elude the police officer, or does elude such police officer commits [the] class 2 misdemeanor traffic offense [of eluding or attempting to elude a police officer].
§ 42-4-1413, C.R.S. 2019 (emphasis added).
¶ 15 The evidence required to establish eluding or attempting to elude under section 42-4-1413 has been addressed in two published Colorado cases, neither of which involves the same circumstances as those presented here.
¶ 16 In People v. Espinoza , 195 P.3d 1122, 1125 (Colo. App. 2008), after a police officer activated his emergency lights and siren to conduct a traffic stop of the defendant's car, the defendant drove slowly for four blocks and then fled on foot. In concluding that the evidence of eluding or attempting to elude was sufficient, the division relied primarily on the defendant's attempted flight on foot. See id. at 1128-29.
¶ 17 In People v. Procasky , 2019 COA 181, ¶¶ 3-5, 18-25, 467 P.3d 1252, after officers activated their lights and sirens to conduct a traffic stop of the defendant's car, the defendant drove for two blocks, pulled into a parking lot, stopped his car, and followed the officers' directions thereafter. Finding Espinoza distinguishable because that case focused on the defendant's flight on foot, the Procasky division concluded that the evidence of eluding or attempting to elude was insufficient. See id. at ¶¶ 18-25.
¶ 18 The word "elude" is not defined in the relevant statutory scheme, nor is it defined in the Colorado Model Criminal Jury Instructions. The jury in this case was not provided with a definition for the word.
¶ 19 When jury instructions do not provide a definition for a particular term, the jury is presumed to apply the common meaning or meanings of the term. People v. Walden , 224 P.3d 369, 379 (Colo. App. 2009). Although jurors are of course not permitted to consult a dictionary for such information, see People v. Holt , 266 P.3d 442, 446-47 (Colo. App. 2011) (), we may do so to determine how a reasonable juror might construe the meaning of a term, see Cowen v. People , 2018 CO 96, ¶ 14, 431 P.3d 215 ().
¶ 20 In this case, however, dictionary definitions do not provide a definitive answer. On the one hand, some definitions support Sims's contention that eluding requires proof that the defendant took some kind of evasive action. Both Webster's Ninth New Collegiate Dictionary 405 (1990) and the online Merriam-Webster Dictionary, https://perma.cc/GP67-7ZYZ, define "elude" as "to avoid adroitly." The term "adroitly," in turn, is defined as using "skill, cleverness, or resourcefulness." Merriam-Webster Dictionary, https://perma.cc/5UQF-9GB7. See also The American Heritage Dictionary of the English Language 582 (4th ed. 2000) (defining "elude" as "to evade or escape from, as by daring, cleverness, or skill").
¶ 21 On the other hand, some definitions of elude do not require evasive action. See Cambridge Dictionary, https://perma.cc/47AL-5DNH (defining "elude" as simply "to not be caught by someone"); see also Collins English Dictionary, https://perma.cc/XJ6A-YJL4 ("If you elude someone or something, you avoid them or escape from them."); Macmillan Dictionary, https://perma.cc/N3AF-YE49 (defining elude as "to manage to escape or hide from someone or something").
¶ 22 Relying on dictionary definitions, then, does not show that a reasonable juror...
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