People v. Smith, 01CA0548.

• Decision Date: 02 January 2003
• Docket Number: No. 01CA0548.,01CA0548.
• Citation: 77 P.3d 751
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony Jerome SMITH, Defendant-Appellant.
• Court: Colorado Court of Appeals

77 P.3d 751

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony Jerome SMITH, Defendant-Appellant.

No. 01CA0548.

Colorado Court of Appeals, Div. V.

January 2, 2003.

Rehearing Denied April 17, 2003.

Certiorari Denied October 6, 2003.

Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, Anthony Jerome Smith, appeals the judgment of conviction entered on a jury verdict finding him guilty of felony escape. We affirm.

Defendant was serving a sentence of incarceration for first degree assault and attempted escape and was paroled in November 1998. Approximately one month later, the parole board found defendant guilty of several parole violations, but continued his parole with the added condition that he complete 180 days in the Intensive Supervision Program (ISP).

Under ISP, defendant was subject to additional parole conditions, such as remaining at his residence every day during certain "curfew" hours and wearing an electronic monitor (ankle bracelet) at all times. On December 21, 1998, defendant signed a statement indicating that he had a "full and intelligent understanding" of the additional ISP conditions. Defendant also signed a statement pursuant to § 17-27.5-104, C.R.S., 2002, which advised him that failure to remain within the extended limits of his confinement as established by ISP would be deemed an escape from custody and punishable as provided in § 18-8-208, C.R.S.2002, the felony escape statute.

Defendant did not return to his residence on January 1, 1999, and his whereabouts remained unknown until he was arrested in Las Vegas, Nevada, on January 11, 1999.

After a trial, the jury found defendant guilty of felony escape.

I. Conflict Between Statutory Provisions

Defendant contends he was liable only for a parole violation, rather than felony escape, when he did not remain within the limits of his home detention, because he was on home detention as a condition of his parole. We disagree.

Appellate courts review interpretations of statutes de novo. When construing statutes, a court's primary purpose is to ascertain and give effect to the intent of the General Assembly. People v. Robertson, 56 P.3d 121, 123 (Colo.App.2002). Courts must construe each provision of a comprehensive statutory scheme to effectuate the overall legislative intent. People v. Garcia, 64 P.3d 857, 2002 WL 58926 (Colo. App. No. 99CA2360, Jan. 17, 2002). To determine intent, courts give statutory terms their commonly accepted meaning. Where the statutory language is unambiguous and the legislative intent reasonably clear, courts do not apply other rules of statutory construction. People v. Triantos, 55 P.3d 131, 134 (Colo.2002). In addition, courts should not presume the General Assembly used language idly. People v. J.J.H., 17 P.3d 159 (Colo.2001).

A person commits felony escape when, as relevant here, he or she knowingly escapes from custody or confinement while in custody or confinement for a conviction of a felony. The classification of the escape offense depends on the class of the underlying felony for which the defendant was in custody or confinement. See § 18-8-208(1)-(2), C.R.S.2002.

Two other escape statutes are pertinent to our discussion here. First, under the escape provision in the ISP statutes, an offender who does not remain "within the extended limits on his confinement" as established by the ISP is deemed to have escaped from custody and if convicted, is sentenced as provided in the felony escape statute. Section 17-27.5-104.

Second, the statutory provisions governing escape for offenders in a Home Detention Program (HDP) differentiate between offenders directly sentenced to home detention, who are liable for an escape charge if they "fail[ ] to remain within the extended limits of a home detention program," and offenders on parole, who are liable for a parole violation if they do not "remain within the limits of a home detention program." Section 17-27.8-106, C.R.S.2002.

For the purposes of the HDP statutes, "home detention" is defined as:

an alternative correctional sentence or term of probation supervision wherein a defendant ... is allowed to serve his sentence... or a portion thereof, within his home or other approved residence. Such sentence ... shall require the offender to remain within his approved residence at all times except for approved employment, court-ordered activities, and medical needs.

Section 17-27.8-101(1), C.R.S.2002 (emphasis added).

Under HDP, an offender must be personally monitored by a home detention officer and supervised by electronic monitoring devices capable of detecting and reporting the offender's absence from his or her residence, workplace, or court-approved activity. The offender also must be available to attend any court-ordered counseling, substance abuse treatment, vocational rehabilitation, training, or education. Section 17-27.8-103(2)(a)-(c), C.R.S.2002. An offender may be placed in HDP by a sentencing judge or the state board of parole as a condition of parole or modified parole. Sections 17-27.8-104, 17-27.8-105, C.R.S.2002.

In contrast, under ISP, an offender must receive the minimum services consistent with public safety, including (1) highly restricted activities; (2) weekly face-to-face contact; (3) daily telephone contact; (4) monitored curfews at the offender's residence at least once a month; (5) employment visitation and monitoring at least twice each month; (6) home visitation; (7) drug and alcohol screening; (8) treatment referrals and monitoring; and (9) payment of restitution and community service in a manner that minimizes any risk to the public. Section 17-27.5-102(2), C.R.S. 2002. Only the state parole board is authorized to place an offender in ISP as a condition of his or her parole. Section 17-27.5-106, C.R.S.2002.

A. Escape Provisions

Defendant contends that the escape provision in the ISP statute conflicts with the statutory provision governing escape by offenders in HDP. Thus, he argues, under the rules of statutory construction, including the rule of lenity, when a parolee on home detention leaves the limits of his or her confinement, the parolee commits a parole violation, not a felony escape. The People contend that the trial court properly concluded that defendant was charged with escape from ISP and that the HDP escape statute did not apply to him. We agree with the People.

While a defendant may be placed at home under either HDP or ISP, each program has distinct substantive provisions. Compare § 17-27.5-101, et seq., C.R.S. 2002(ISP), with § 17-27.8-101, et seq., C.R.S.2002(HDP).

By their plain language, the HDP and ISP statutes concern distinct programs. First, only the parole board can place an offender in ISP. Section 17-27.5-106. In contrast, either the sentencing court or the parole board may place an offender in HDP. Section 17-27.8-104. Second, ISP also contains more stringent and extensive standards than HDP. Compare § 17-27.5-102(2)(ISP), with § 17-27.8-103(2)(a)-(c)(HDP).

The trial court must make a factual determination whether a defendant has been placed in HDP or ISP. Because HDP and ISP are mutually exclusive programs, once the court determines that a defendant was in ISP, we discern no conflict between the statutory provisions of HDP and ISP.

Contrary to the requirements of HDP, defendant's curfew condition here did not require him to remain within his residence at all times, except for approved employment, court-ordered activities, and medical needs. Instead, his ISP condition required him to be at his residence during "curfew" hours, unless a change was approved by his parole officer. Specifically, defendant's curfew hours were Monday through Friday, 7:00 a.m. to 6:00 p.m., except Wednesday 7:00 a.m. to 10:00 p.m., Saturday 12:00 p.m. to 6:00 p.m., and Sunday 10:00 a.m. to 6:00 p.m. In addition, as the trial court found, defendant signed a document entitled "Intensive Supervision Program Englewood Parole," which did not refer to HDP. Therefore, we conclude that the trial court's finding that defendant was placed in ISP, rather than HDP has record support, and we will not disturb it on review.

B. Jury Instruction on HDP Escape

Defendant further argues that the trial court erred in refusing to instruct the jury on the HDP escape provision because it directly related to his mens rea. We disagree.

A defendant is entitled to a jury instruction on his or her theory of the case if the record contains any evidence to support the theory and it is not embodied in other instructions. The trial court has an affirmative obligation either to correct the tendered theory of the case instruction or to incorporate the substance of the tendered instruction into the final jury instructions. People v. Nunez, 841 P.2d 261, 264-66 (Colo.1992). However, a trial court may refuse to give a defendant's theory of the case instruction that misstates the law, is argumentative, or improperly emphasizes specific evidence. People v. Inman, 950 P.2d 640, 645 (Colo. App.1997).

Appellate courts consider the jury instructions as a whole when determining whether the jury has been adequately informed of the defendant's theory of the case. The court also considers whether defense counsel's closing statement fairly represented the defendant's theory to the jury. People v. Dore, 997 P.2d 1214, 1222 (Colo.App. 1999).

Here, defendant proceeded to trial pro se, and one of his tendered jury instructions quoted the HDP escape statute, § 17-27.8-106, and stated that it was "a statute binding in this state." The trial court refused the instruction, concluding that only the felony escape statute and the ISP escape statute were applicable. The court determined that the HDP escape statute did...