People v. Terhorst

Decision Date13 August 2015
Docket NumberCourt of Appeals No. 13CA1133
PartiesThe PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Mark Allen TERHORST, Defendant–Appellant.
CourtColorado Court of Appeals

Cynthia H. Coffman, Attorney General, Ethan E. Zweig, Assistant Attorney General, Denver, Colorado, for PlaintiffAppellee.

Mark Allen Terhorst, Pro Se.

Opinion

Opinion by JUDGE BOORAS

¶ 1 Defendant, Mark Allen Terhorst, appeals his judgment of conviction entered on jury verdicts finding him guilty of four counts of contributing to the delinquency of a minor. We affirm.

I. Background

¶ 2 Defendant held a birthday party for his seventeen-year-old son at their large multi-story home in Lakewood. Hundreds of teenagers attended the party. Police responded to the party after being called three separate times by a neighbor who reported that “underage kids” were there drinking alcohol. This neighbor also told the police that he believed there were many guns in the house.

¶ 3 Because of previous contacts at the residence and concern about possible firearms, the police felt that it was necessary to have several officers respond instead of only a two-person team. The officers arrived at a staging area near the house about an hour after the first call and planned their approach.

¶ 4 As they approached the residence, a number of juveniles fled the residence. One officer, who was covering the perimeter of the house, tried to talk to some of the juveniles to assess the situation. One group included an “extremely intoxicated” sixteen-year-old who said that she had consumed six beers at the party. Another seventeen-year-old stated that the residence had alcohol and kegs of beer, which had not been brought by the guests. Through the windows, the officer could see a number of people inside the house running and panicking. The officer agreed during the suppression hearing that panic was a typical response from teenagers when the police broke up a party.

¶ 5 As the officers approached the residence, a different officer saw beer cans lying outside the house. He testified that the people fleeing the home appeared to be “high school age.”

¶ 6 Defendant opened his front door when the officers knocked. He attempted to shut the door behind him as he stepped out to talk with the officers, but one officer put his foot in the doorway to keep the door from closing completely. Defendant said that he was having a birthday party for his son and denied that any juveniles had been drinking alcohol. However, one of the officers said that he could see what appeared to be underage juveniles drinking inside.1At this point, defendant became confrontational and the police handcuffed him and placed him in a patrol car. The officers then went into defendant's home and cleared it of teenagers. Approximately 150 to 200 teenagers left the home. Officers went floor to floor checking the rooms to “make sure there is nobody sick or unconscious, needing ... medical attention.” At the home, they found many cups, bottles, and beer cans containing alcohol.

¶ 7 Defendant was charged with eight counts of contributing to the delinquency of a minor and one count of child abuse. The People later dismissed the child abuse charge and four counts of contributing to the delinquency of a minor. Defendant was tried on the remaining four counts.

¶ 8 At trial, defendant claimed that two separate parties had occurred that night. He hosted the first party, which was a birthday party for his son. He claimed that there had been no alcohol at that party. Defendant testified that he left home to go on a date as the first party was winding down, and that he returned home to the second party that the police eventually broke up. He testified that he was shocked to find that a second party with alcohol was going on, and that he had been trying to remove the teenagers when the police showed up and arrested him.

II. Discussion

¶ 9 Defendant makes two primary contentions on appeal. First, he argues that he was improperly denied a fifth peremptory challenge in violation of section 16–10–104, C.R.S.2014, and Crim. P. 24(d)(2). Second, he argues that the trial court erred in denying his motion to suppress evidence obtained after the warrantless entry and search of his home.

A. Peremptory Challenges
1. Standard of Review and Preservation

¶ 10 During jury selection, defendant's counsel used peremptory challenges to strike two potential jurors, but waived defendant's third challenge. After the trial court filled the seat of the fourth juror the People struck, defendant's counsel waived defendant's fourth peremptory challenge. The prosecutor then accepted the jury as empaneled. The trial court asked, “Anything further from the defense?,” to which defense counsel responded, “I think I get a fifth” peremptory challenge. At a bench conference, the trial court explained that it did not think defendant was permitted to use his last peremptory challenge “after having passed on the people that are in there.” After further discussion between trial counsel and the court, defense counsel said, “Okay. Never [m]ind.”

¶ 11 The People argue that defendant both waived and failed to preserve his argument for appeal that the trial court erred by denying him his fifth peremptory challenge. We disagree and conclude that defendant's counsel made a sufficient argument before the trial court to preserve this issue for appeal. We also conclude that counsel's statement at the end of the bench conference—“Okay. Never [m]ind”—did not amount to a waiver of the argument.

¶ 12 At some point after receiving an adverse ruling on an objection or argument at trial, trial counsel must accept the trial court's decision and move on. This acquiescence is not akin to a waiver, but instead permits the party adversely affected by the ruling to seek appellate relief—as defendant does here. SeePeople v. Rhea,2014 COA 60, ¶ 55, 349 P.3d 280(objection that sufficiently alerts trial court to a particular issue to correct any error preserves issue for appellate review).

¶ 13 Thus, we review the trial court's decisions regarding peremptory challenges for an abuse of discretion. People v. Reese,670 P.2d 11, 13 (Colo.App.1983). To the extent defendant makes a statutory or rules interpretation argument, we review the trial court's interpretation of statutes and the Colorado Rules of Criminal Procedure de novo. Kazadi v. People,2012 CO 73, ¶ 11, 291 P.3d 16.

2. Discussion

¶ 14 Defendant argues that he was denied his right to use a fifth peremptory challenge during jury selection in violation of section 16–10–104and Crim. P. 24(d)(4). We disagree.

¶ 15 Defendant was entitled to five peremptory challenges pursuant to section 16–10–104. The Colorado Rules of Criminal Procedure govern the mechanics of exercising peremptory challenges. § 16–10–104(2). Crim. P. 24(d)(4)provides the applicable procedure governing the exercise of peremptory challenges:

Peremptory challenges shall be exercised by counsel, alternately, the first challenge to be exercised by the prosecution. A prospective juror so challenged shall be excused, and another juror from the panel shall replace the juror excused. Counsel waiving the exercise of further peremptory challenges as to those jurors then in the jury box may thereafter exercise peremptory challenges only as to jurors subsequently called into the jury box without, however, reducing the total number of peremptory challenges available to either side.

(Emphasis added.)

¶ 16 As noted, defendant's counsel used peremptory challenges to strike two potential jurors, but waived his third challenge. After the trial court filled the seat of the fourth juror the prosecutor struck, defendant's counsel waived his fourth peremptory challenge. The prosecutor then accepted the jury as empaneled, and the court denied defendant any further peremptory challenges.

¶ 17 Under Crim. P. 24(d)(2), after having previously waived the use of a peremptory challenge, counsel can only make peremptory challenges “as to jurors subsequently called into the jury box.” Thus, when defendant's counsel waived his fourth peremptory challenge, he risked that the prosecutor would not use a fifth peremptory challenge—thus resulting in no change to the composition of the jury box. Because no jurors were called into the jury box after defendant's counsel's waiver, defense counsel lost his ability to use any additional peremptory challenges.

¶ 18 Defendant argues that the trial court's ruling misapplied Crim. P. 24(d)(4)because the rule “very specifically states that any side waiving use of peremptory challenges will not have its total amount of peremptory challenges reduced.” However, we do not interpret the last clause of the rule as broadly as defendant advocates.

¶ 19 The rule specifically eliminates counsel's opportunity to utilize peremptory challenges if counsel has waived a challenge and no new jurors have entered the jury box. The rule further provides that no reduction in challenges shall occur as a result of such a waiver. We conclude that there is no conflict between the number of peremptory challenges provided by the statute and the provision of the rule regarding nonreduction of peremptory challenges where there has been a waiver. Interpreting the rule otherwise results in the conflict defendant asserts. People v. Trujillo,251 P.3d 477, 480–81 (Colo. App. 2010)([C]ourts should give effect to every provision of a statute while avoiding conflicts....”).

¶ 20 In other words, where counsel waives a peremptory challenge, counsel does not lose that challenge and can still take advantage of all available peremptory challenges to which the party is entitled, so long as, after waiver, at least one new juror is called into the jury box. By way of example, if defendant's counsel had used his fourth peremptory challenge, and a new juror had then come into the box, even if the prosecutor did not utilize the People's fifth peremptory challenge, defendant's counsel could still...

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  • People v. Butson, Court of Appeals No. 14CA2417
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    • Court of Appeals of Colorado
    • 20 Abril 2017
    ...different than the district court, that CRE 408 does not bar the admission of Butson's statements to the detective.5 See People v. Terhorst , 2015 COA 110, ¶ 24, 360 P.3d 239 (appellate court may affirm the denial of a suppression motion on any ground supported by the record, even if it is ......

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