People v. Vialpando

• Decision Date: 19 March 2020
• Docket Number: Court of Appeals No. 17CA1536
• Citation: 490 P.3d 648
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Yolanda Ursula VIALPANDO, Defendant-Appellant.

490 P.3d 648

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Yolanda Ursula VIALPANDO, Defendant-Appellant.

Court of Appeals No. 17CA1536

Colorado Court of Appeals, Division VII.

Announced March 19, 2020

Philip J. Weiser, Attorney General, Elizabeth Ford Milani, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE BERGER

¶ 1 Yolanda Ursula Vialpando exercised her right to a trial by jury. That jury convicted her of aggravated motor vehicle theft and other crimes. During closing arguments, the prosecutor told the jury that Vialpando's "flight continues to this moment," and that her "flight has continued up and to this point." These comments punished Vialpando for exercising her constitutional right to a jury trial. This was plain error, requiring reversal of her convictions.

¶ 2 Moreover, this error and five other errors that occurred over the course of Vialpando's short three-day trial deprived her of her right to a fair trial under the cumulative error doctrine.

I. Relevant Facts and Procedural History

¶ 3 J.A.’s car was stolen from her Denver home.

¶ 4 Eleven days later, around five p.m., two police officers were sitting in their police vehicle in the parking lot of a motel. One of the officers testified that he saw a car, which would later be identified as J.A.’s, drive around the corner of the motel, reverse over a curb, and turn around to exit the motel parking lot. As the officers followed the car, they learned it was stolen. The officer who was driving testified that he activated his emergency lights to make a traffic stop, but that the car "increased its speed." The officer said that he did not pursue the car because of the police's pursuit policy. Shortly after deactivating his lights, the officer "heard a loud bang" and later saw that the stolen car had crashed. Several witnesses told the officers that they saw a male and female flee the car after the crash.

¶ 5 One of the witnesses was R.H. She was in her car, stopped at a traffic light, when she saw the stolen car crash into another, injuring the other driver. After the crash, R.H. watched a man leave the passenger side and a woman exit the driver's side of the stolen car. They ran away in different directions. R.H.’s car was two lanes away from the crash.

¶ 6 After the crash, the police found a purse in J.A.’s stolen car that contained Vialpando's identification card, credit card, medical insurance card, and "miscellaneous female clothing," which Vialpando identified at trial as her clothes.

¶ 7 Based on the items found in the crashed car, the police began investigating Vialpando. Two officers went to R.H.’s home for an out-of-court identification. One of the officers testified that he showed R.H. a series of photographs, and R.H. identified Vialpando's photo thirty seconds later.

¶ 8 Vialpando was charged with vehicular assault, § 18-3-205(1)(a), C.R.S. 2019; vehicular eluding, § 18-9-116.5, C.R.S. 2019; aggravated motor vehicle theft in the first degree, § 18-4-409(2), C.R.S. 2019; and driving under restraint, § 42-2-138(1)(a), C.R.S. 2019.

¶ 9 At trial, R.H. testified that the fleeing woman was "lighter skinned" and had a lot of makeup on. R.H. testified further that, at the time of the crash, the woman was wearing a black and white striped shirt and skinny black jeans; was in her twenties or thirties; was slender; had black, wavy, long hair; and was maybe about 5 feet 5 inches or 5 feet 6 inches tall. According to R.H., the woman's makeup "made her look younger."

¶ 10 An officer testified that some of Vialpando's Facebook photos showed her with long black hair and wearing "a significant amount of makeup," and that she appeared younger than she did at trial. He also told the jury that Vialpando's Division of Motor Vehicles record stated that she was 5 feet 5 inches tall, 155 pounds, with brown hair and brown eyes, and her Colorado identification photograph depicted her with "long dark hair."

¶ 11 R.H. explained that, during the out-of-court identification, she told the officers that several of the women "were definitely not the person, and one ... could be." She told the jury that she selected Vialpando's photo from the lineup and told police that "it could totally be possible" that she was the woman R.H. saw exit the crashed car. R.H. was "seventy-five percent" certain. When asked for an in-court identification, R.H. said that Vialpando "could be" the woman who had fled the stolen, crashed vehicle.

¶ 12 Vialpando explained to the jury that she was robbed of the personal items that were found in the stolen car — including her identification card, purse, insurance card, credit card, and clothing. In fact, Vialpando reported the robbery the day before the car chase and crash occurred. Testimony from a police officer supported Vialpando's account; the officer testified that Vialpando came to the Denver police station the day before the car chase to report that she was robbed at gunpoint, and that several personal items had been stolen.

¶ 13 Vialpando was found guilty as charged and sentenced to four years in community corrections.

II. Analysis

¶ 14 On appeal, Vialpando asserts six claims of error:

• there was insufficient evidence to support her convictions;

• the prosecutor engaged in seventeen instances of prosecutorial misconduct;

• the lead investigating police officer impermissibly testified that she was the "primary suspect";

• the cumulative effect of the errors deprived her of a fair trial;

• R.H.’s identification was unreliable, so it should have been suppressed; and

• the trial court lowered the State's burden of proof when it used analogies to describe reasonable doubt.

A. Sufficiency of the Evidence

¶ 15 We first address Vialpando's sufficiency of the evidence arguments because a reversal due to insufficient evidence "may preclude retrial" on double jeopardy grounds. People v. Coahran , 2019 COA 6, ¶ 40, 436 P.3d 617 (quoting People v. Marciano , 2014 COA 92M-2, ¶ 42, 411 P.3d 831 ).

¶ 16 Vialpando claims that there is insufficient evidence to support her convictions because the prosecution failed to prove identity. She also claims that there is insufficient evidence to support her aggravated motor vehicle theft conviction because the prosecution failed to prove that she knowingly obtained or exercised control over the motor vehicle of another without authorization, or that she obtained or exercised control over the vehicle by threat or deception. Both of Vialpando's sufficiency of the evidence arguments are disproved by the record.

1. The Law

¶ 17 The Attorney General disputes that Vialpando fully preserved her sufficiency of the evidence claims for appeal. But we review the sufficiency of the evidence de novo, including sufficiency claims raised for the first time on appeal, Maestas v. People , 2019 CO 45, ¶ 13, 442 P.3d 394, to determine whether the evidence at trial was sufficient "in quantity and quality to sustain the defendant's conviction." Clark v. People , 232 P.3d 1287, 1291 (Colo. 2010).

¶ 18 The Due Process Clauses of the United States and Colorado Constitutions require proof of guilt beyond a reasonable doubt on every element of a crime. People v. Marko , 2015 COA 139, ¶ 233, 434 P.3d 618, aff'd , 2018 CO 97, 432 P.3d 607. To resolve Vialpando's sufficiency challenge, we must determine whether the direct and circumstantial evidence, when viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable fact finder that Vialpando is guilty of the crimes charged beyond a reasonable doubt. Clark , 232 P.3d at 1291.

¶ 19 "We do not sit as a thirteenth juror to determine the weight of the evidence presented to the jury." Id. at 1293. Instead, we must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence, and we recognize that (1) the jury alone resolves the difficult questions of witness credibility and the weight to be given to conflicting items of evidence; (2) the jury is not required to accept or reject a witness's testimony in its entirety; (3) an actor's state of mind is not normally subject to direct proof and must be inferred from her actions and surrounding circumstances; and (4) if there is evidence on which to reasonably infer an element of the crime, the evidence is sufficient to sustain that element. People v. Kessler , 2018 COA 60, ¶ 12, 436 P.3d 550.

¶ 20 As relevant here, a person commits aggravated motor vehicle theft in the first degree if she "knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception" and one of eight specified aggravating factors is shown. § 18-4-409(2). Vialpando was charged with committing three of the aggravating factors: (1) using a motor vehicle in the "commission of a crime other than a traffic offense"; (2) causing "five hundred dollars or more [in] property damage"; and (3) causing "bodily injury to another person" while exercising control of the motor vehicle." § 18-4-409(2)(d)–(f). "The critical inquiry is whether the defendant exercised dominion over a vehicle in a manner inconsistent with [her] authority." People v. Harper , 205 P.3d 452, 455 (Colo. App. 2008).

¶ 21 To commit aggravated motor vehicle theft, a person must knowingly steal a motor vehicle and use it in the commission of a crime, "regardless of the mens rea associated with the particular crime committed." People v. Marquez , 107 P.3d 993, 997–98 (Colo. App. 2004). The culpable mental state "knowingly" applies to the defendant's exercise of control over the vehicle and her awareness of lack of authority. People v. Stellabotte , 2016 COA 106, ¶ 20, 421 P.3d 1164, aff'd , 2018 CO 66, 421 P.3d 174. A person acts "knowingly"

with respect to conduct or to a circumstance described by a statute

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