People v. Trujillo, Court of Appeals No. 11CA1660
| Decision Date | 12 March 2015 |
| Docket Number | Court of Appeals No. 11CA1660 |
| Citation | 369 P.3d 693 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Ruby Lynn TRUJILLO, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee
Douglas K. Wilson, Colorado State Public Defender, Rachel C. Funez, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant
Opinion by JUDGE LICHTENSTEIN
¶ 1 Defendant, Ruby Lynn Trujillo, appeals the judgment of conviction entered on a jury verdict finding her guilty of identity theft and theft of less than $500 from an at-risk adult. We affirm.
¶ 2 Trujillo worked at an assisted living facility and, one weekend, took $250 in cash and a debit card from a resident. Trujillo used the debit card to spend approximately $270 at several stores. Trujillo claimed that the resident had given her permission to make these purchases, but denied taking any cash from the resident. The resident claimed that she had not given Trujillo cash or the debit card.
¶ 3 Trujillo was initially charged with identity theft, theft from an at-risk adult, and unauthorized use of a financial transaction device. The charge for unauthorized use of a financial transaction device was dismissed. And, before trial, Trujillo moved to dismiss the identity theft charge, arguing that, as applied to her, it violated her right to equal protection because the identity theft statute punished the same conduct as the unauthorized use of a financial transaction device statute, but carried a harsher penalty. The trial court denied the motion.
¶ 4 After Trujillo was convicted, the trial court sentenced her to three years of probation and ninety hours of community service.
¶ 5 On appeal, Trujillo contends that (1) the trial court abused its discretion when it admitted the resident's testimony that she never gave her debit card to anyone, and (2) her conviction for identity theft violates her right to equal protection of the laws.
¶ 6 We address and reject each contention in turn.
¶ 7 Trujillo contends that the trial court abused its discretion when it admitted the resident's testimony that she never gave her debit card to anyone. Trujillo contends that this testimony constituted inadmissible character evidence. We are not persuaded.
¶ 8 We review a trial court's ruling on the admissibility and relevance of evidence for an abuse of discretion, and will only reverse the ruling if it was manifestly arbitrary, unreasonable, or unfair. People v. Arzabala, 2012 COA 99, ¶ 83, 317 P.3d 1196 ; see People v. Ibarra, 849 P.2d 33, 38 (Colo.1993). Moreover, where, as here, the defendant did not object to the admission of the evidence, we review for plain error. Arzabala, ¶ 83 ; see People v. Greenlee, 200 P.3d 363, 366 (Colo.2009). Plain error is error that is both obvious and substantial. Hagos v. People, 2012 CO 63, ¶ 41, 288 P.3d 116 ; People v. Ujaama, 2012 COA 36, ¶¶ 42–43, 302 P.3d 296.
¶ 9 To be admissible, evidence must be relevant. CRE 401. Evidence is relevant where it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."Id. ; accord Greenlee, 200 P.3d at 366.
¶ 10 One type of admissible evidence is habit evidence, which is relevant to prove that the conduct of a person on a particular occasion was in conformity with the habit. See CRE 406 ; People v. T.R., 860 P.2d 559, 562 (Colo.App.1993). A habit "denotes one's regular response to a repeated situation" and "is the person's regular practice of responding to a particular kind of situation with a specific type of conduct." 2 Kenneth S. Broun, McCormick on Evidence § 195, at 1080–81 (7th ed.2013) ; see T.R., 860 P.2d at 562.
¶ 11 Character evidence, however, is not admissible for the purpose of proving that a person acted in conformity with his or her character on a particular occasion. CRE 404(a) ; see People v. Ayala, 919 P.2d 830, 832 (Colo.App.1995). "Character is a generalized description of a person's disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness, that usually is regarded as meriting approval or disapproval." McCormick on Evidence § 195, at 1080 ; see T.R., 860 P.2d at 562.
¶ 12 Trujillo contends that the following testimony from the resident constituted inadmissible character evidence:
Trujillo contends that this testimony constituted character evidence because it "was only relevant to show that [the resident] is a person who is generally careful and guarded with her debit card, and it was offered to prove that she acted in conformity with her character in the charged incident and did not loan out her debit card to Ms. Trujillo."
¶ 13 Yet, while it is possible to infer from this testimony that the resident had a careful and guarded character with respect to her debit card, the prosecution did not offer the testimony as character evidence. The prosecution did not elicit, and the resident did not give, a generalized description of her disposition or a general trait, such as carefulness or guardedness. Instead, the resident described her regular response to the situation of needing people to buy things for her—her habit was to never give them her debit card. Thus, we conclude that this testimony was habit evidence, not character evidence, and that the trial court did not abuse its discretion in admitting it. See T.R., 860 P.2d at 562 ; McCormick on Evidence § 195, at 1080–81.
¶ 14 Trujillo next contends that her conviction for identity theft violates her right to equal protection of the laws because, as applied to her, the identity theft statute punishes the same conduct as the unauthorized use of a financial transaction device statute, but carries a harsher penalty. We disagree that the statutes violate the equal protection guarantee as applied to her.
¶ 15 We review the constitutionality of a statute, as applied to a defendant, de novo. People v. Lovato, 2014 COA 113, ¶ 12, –––P.3d –––– ; People v. Perez–Hernandez, 2013 COA 160, ¶ 10, ––– P.3d ––––. Because we presume that statutes are constitutional, to succeed on an as-applied challenge, a defendant must establish the unconstitutionality of a statute, as applied to him or her, beyond a reasonable doubt. Lovato, ¶ 12.
¶ 16 It is the prerogative of the General Assembly to establish the penalties for particular criminal offenses. Smith v. People, 852 P.2d 420, 421 (Colo.1993) ; People v. Montoya, 196 Colo. 111, 113, 582 P.2d 673, 675 (1978). Legislative enactments, however, are always subject to constitutional constraints. Smith, 852 P.2d at 421.
¶ 17 One constraint is that equal protection of the law is guaranteed by the United States Constitution and by the Due Process Clause of the Colorado Constitution. U.S. Const. amend. XIV ; Colo. Const. art. II, § 25 ; see People v. Stewart, 55 P.3d 107, 114 (Colo.2002). The equal protection guarantee "require[s] like treatment of persons who are similarly situated." People v. Young, 859 P.2d 814, 816 (Colo.1993).
¶ 18 Under the Colorado Constitution, a defendant may bring an equal protection challenge where two or more statutes carry different penalties for identical conduct, and the defendant is convicted under the statute carrying the harsher penalty. Stewart, 55 P.3d at 114 ; Young, 859 P.2d at 816 .
¶ 19 The statutory classification of crimes must be based on differences that are both real in fact and reasonably related to the general purposes of the criminal legislation. Stewart, 55 P.3d at 114. Thus, the legislature may "establish more severe penalties for acts that it believes have graver consequences, even if the differences are only a matter of degree." People v. Mozee, 723 P.2d 117, 126 (Colo.1986). And, statutory classifications need not be perfect. See Ferguson v. People, 824 P.2d 803, 810 (Colo.1992) ; see also Passarelli v. Schoettler, 742 P.2d 867, 870 (Colo.1987).
¶ 20 This challenge may be brought facially or as-applied. See People v. Onesimo Romero, ...
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