People v. Smith, No. 02CA1515.

Docket NºNo. 02CA1515.
Citation121 P.3d 243
Case DateOctober 11, 2005
CourtSupreme Court of Colorado
121 P.3d 243
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Adrianna L. SMITH, Defendant-Appellant.
No. 02CA1515.
Colorado Court of Appeals, Div. I.
February 24, 2005.
Rehearing Denied April 28, 2005.
Certiorari Denied October 11, 2005.*

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COPYRIGHT MATERIAL OMITTED

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John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, John D. Seidel, Assistant Attorney General on Supplemental Answer brief, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

TAUBMAN, J.


Defendant, Adrianna L. Smith, appeals the judgment of conviction entered on jury verdicts finding her guilty of "attempted criminally negligent homicide," vehicular assault, theft from a person, forgery, and unauthorized use of a financial transaction device. She also appeals the sentence. We affirm in part, vacate in part, and remand for further proceedings.

In July 2001, defendant drove her two teenage companions to a grocery store. They entered the store while defendant waited in the vehicle.

While shopping inside the store, the victim left her shopping cart at the end of an aisle. When she saw defendant's companions hovering around her cart, she returned to the cart and found that her fanny pack, containing money and credit cards, had been taken. The victim followed the girls out of the store and yelled at them to return her fanny pack.

One of the girls tossed the fanny pack into defendant's car window, and both girls got into the vehicle. Just as they did so, the victim grabbed the driver's doorpost and reached into the car. One of the girls shouted, "Go, go, go, go!" Defendant accelerated, but then swerved right and hit the brakes, throwing the victim backwards at about fifteen to twenty miles per hour into a parked vehicle.

The victim then fell to the ground in a seated position. One of the girls said, "You killed her." Defendant drove away.

Within a few hours, defendant and her companions charged hundreds of dollars worth of merchandise on the victim's credit cards at various clothing stores in the Denver area. The victim suffered shattered vertebrae, a punctured lung, broken ribs, a bruised liver, and head injuries.

The jury convicted defendant of "attempted criminally negligent homicide," vehicular assault, theft from a person, forgery, unauthorized use of a credit card, and lesser nonincluded driving offenses.

In June 2002, at sentencing, the prosecution conceded that "attempted criminally negligent homicide" was not an offense in Colorado, see People v. Eggert, 923 P.2d 230 (Colo.App.1995), and, thus, the court did not sentence defendant for that offense.

The trial court sentenced defendant to six years for vehicular assault; a consecutive sentence of three years for theft from a

Page 246

person; and lesser sentences on the other offenses. The court also imposed fines for some of the driving offenses, but suspended them on condition of payment of restitution. However, the court did not order restitution at sentencing.

In July 2002, defendant filed a notice of appeal, and in August 2002, while this appeal was pending, the trial court amended the mittimus to add $130,842.57 in restitution.

In 2004, we remanded the case to the trial court to determine five issues: (1) whether the original mittimus constituted a final appealable judgment, even though it did not reflect consideration of restitution; (2) whether the trial court had jurisdiction to enter the amended mittimus; (3) whether § 18-1.3-603, C.R.S.2004, authorized consideration of restitution on remand or whether the People were prohibited, on the basis of waiver or invited error, from asserting that the trial court did not comply with § 18-1.3-603; (4) whether the trial court could impose an order of restitution without violating defendant's constitutional right to be free from double jeopardy; and (5) whether the People could rely on Crim. P. 35(a) to assert that the original mittimus must be corrected, or whether this rule protects only defendants in criminal cases.

On remand, the trial court concluded that the original judgment lacking a restitution order was final and appealable and that it had lacked jurisdiction to enter the subsequent restitution order because this appeal was pending. The court also determined that § 18-1.3-603 was a mandatory provision which required the court's consideration of restitution, and therefore, the People could not have waived the right to request restitution. The court further determined that defendant's double jeopardy rights would not be violated by a restitution order entered on remand. Ultimately, the court issued a new mittimus which included a restitution order in the amount of $113,676.

Following recertification of the appeal, the parties submitted supplemental briefs on the remand issues, as well as on whether defendant's aggravated range sentence for vehicular assault was unconstitutional under the Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

I. Motion to Sever

Defendant argues the trial court erred by denying her motion to sever the forgery and credit card counts because they were not relevant to the other charges and were unfairly prejudicial. We disagree.

Crim. P. 8(a) authorizes the joinder of offenses based on a series of acts arising from the same criminal episode. Colorado courts have allowed joinder of offenses committed at different times and places but constituting part of a schematic whole. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976).

A motion for severance of counts is generally addressed to the sound discretion of the trial court, whose decision will be reversed only upon a showing of abuse of discretion. An abuse of discretion will be found where the joinder caused actual prejudice to the defendant and the trier of fact was not able to separate the facts and legal principles applicable to each offense. People v. Aalbu, 696 P.2d 796, 806 (Colo.1985).

CRE 403 provides that evidence should be excluded if its probative value is substantially outweighed by its prejudicial effect. We review a determination under this rule for abuse of discretion and must afford the evidence the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice reasonably to be expected. People v. Dist. Court, 869 P.2d 1281 (Colo.1994).

Here, defendant failed to demonstrate any prejudice. As the trial court concluded, even if the counts had been tried separately, evidence of the subsequent use of the stolen credit cards was relevant and would have been admissible to prove that defendant was involved in the parking lot incident and to demonstrate defendant's intent regarding the theft.

Further, the jury did not convict defendant of the most serious offenses: it acquitted her of attempted murder and first degree assault and convicted her of lesser offenses, attempted

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negligent homicide and vehicular assault. Accordingly, the jury was able to separate the facts and legal principles applicable to each count.

Thus, we conclude, as did the trial court, that the incidents at the grocery store and the subsequent shopping sprees were a continuous criminal episode and that defendant was not prejudiced by denial of the motion to sever. Therefore, we perceive no abuse of discretion.

II. Theft from a Person

Defendant contends that because the victim was a substantial distance from the shopping cart containing her fanny pack when it was stolen, the evidence does not support her conviction as a complicitor for theft from a person. We agree.

When the sufficiency of the evidence is challenged on appeal, a reviewing court must determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crime charged beyond a reasonable doubt. People v. McAfee, 104 P.3d 226 (Colo.App.2004).

Section 18-4-401(5), C.R.S.2004, provides: "Theft from the person of another by means other than the use of force, threat, or intimidation is a class 5 felony without regard to the value of the thing taken."

In People v. Warner, 801 P.2d 1187 (Colo.1990), the defendant argued that his actions did not constitute theft from the person. The defendant had utilized a series of short-change transactions to steal money from a cashier. In distinguishing between theft from a person under § 18-4-401(5) and theft by deception pursuant to § 18-4-401(1), C.R.S.2004, the supreme court looked to the legislative history of the statute defining theft from the person of another and concluded as follows:

[S]ubsection (5) was designed to cover those situations that would otherwise constitute robbery, but for the lack of force, threats, or intimidation.... [T]heft from the person of another involves circumstances, such as pickpocketing, where something of value is taken from one who is unconscious or unaware of the theft. The invasion of the victim's person presents an element of danger absent in other theft offenses, which justifies the greater penalty accorded those who violate subsection (5). Reading the general theft statute together with the robbery statute, we conclude that theft from the person of another is intended to cover those thefts involving an invasion of the victim's person of which the victim is unaware, but which are not accomplished through the use of force, threats, or intimidation.

People v. Warner, supra, 801 P.2d at 1191 (footnotes omitted).

The question here is whether the theft from the victim's shopping cart, when the victim is a substantial distance from the cart, constituted an "invasion of the victim's person" as contemplated by the statute. We conclude it did not.

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32 practice notes
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • 19 Noviembre 2009
    ...below would “conserve[ ] judicial resources by ensuring that trial judges will have an opportunity to correct any error,” People v. Smith, 121 P.3d 243, 253 (Colo.App.2005) (Webb, J., specially concurring), doing so would not “increase[ ] the likelihood that a sufficient record will exist f......
  • People v. Smith-Anthony, Docket No. 145371.
    • United States
    • Supreme Court of Michigan
    • 30 Julio 2013
    ...54. Perkins & Boyce, p. 342 (emphasis added). 55.State v. Barnes, 345 N.C. 146, 150–151, 478 S.E.2d 188 (1996). 56.People v. Smith, 121 P.3d 243, 247–248 (Colo.App., 2005). 57.Garland v. Commonwealth, 18 Va.App. 706, 710, 446 S.E.2d 628 (1994). 58.Banks, 74 Ga.App. at 450–452, 40 S.E.2d......
  • People v. Pena-Rodriguez, No. 11CA0034.
    • United States
    • Colorado Court of Appeals of Colorado
    • 8 Noviembre 2012
    ..."constitutional dimension," reversal is required unless the error is harmless beyond a reasonable doubt. People v. Smith, 121 P.3d 243, 249 (Colo.App.2005).B. Preservation ¶ 65 The Attorney General's assertion that defendant failed to preserve this issue is unpersuasive. Defendant......
  • People v. Bondsteel, Court of Appeals No. 11CA1784
    • United States
    • Colorado Court of Appeals of Colorado
    • 19 Noviembre 2015
    ...convicts on a lesser charge. See People v. Garcia, 2012 COA 79, ¶ 30, 296 P.3d 285 ; Pasillas–Sanchez, 214 P.3d at 530 ; People v. Smith, 121 P.3d 243, 246–47 (Colo. App. 2005).¶ 52 In the absence of an acquittal or conviction on a lesser charge, other divisions of this court have looked at......
  • Request a trial to view additional results
32 cases
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • 19 Noviembre 2009
    ...below would “conserve[ ] judicial resources by ensuring that trial judges will have an opportunity to correct any error,” People v. Smith, 121 P.3d 243, 253 (Colo.App.2005) (Webb, J., specially concurring), doing so would not “increase[ ] the likelihood that a sufficient record will exist f......
  • People v. Smith-Anthony, Docket No. 145371.
    • United States
    • Supreme Court of Michigan
    • 30 Julio 2013
    ...54. Perkins & Boyce, p. 342 (emphasis added). 55.State v. Barnes, 345 N.C. 146, 150–151, 478 S.E.2d 188 (1996). 56.People v. Smith, 121 P.3d 243, 247–248 (Colo.App., 2005). 57.Garland v. Commonwealth, 18 Va.App. 706, 710, 446 S.E.2d 628 (1994). 58.Banks, 74 Ga.App. at 450–452, 40 S.E.2d 103......
  • People v. Pena-Rodriguez, No. 11CA0034.
    • United States
    • Colorado Court of Appeals of Colorado
    • 8 Noviembre 2012
    ...of a sufficient "constitutional dimension," reversal is required unless the error is harmless beyond a reasonable doubt. People v. Smith, 121 P.3d 243, 249 (Colo.App.2005).B. Preservation ¶ 65 The Attorney General's assertion that defendant failed to preserve this issue is unpersuasive. Def......
  • People v. Bondsteel, Court of Appeals No. 11CA1784
    • United States
    • Colorado Court of Appeals of Colorado
    • 19 Noviembre 2015
    ...convicts on a lesser charge. See People v. Garcia, 2012 COA 79, ¶ 30, 296 P.3d 285 ; Pasillas–Sanchez, 214 P.3d at 530 ; People v. Smith, 121 P.3d 243, 246–47 (Colo. App. 2005).¶ 52 In the absence of an acquittal or conviction on a lesser charge, other divisions of this court have looked at......
  • Request a trial to view additional results

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