The People Of The State Of Colo. v. Barrus, No. 07CA1715.

Docket NºNo. 07CA1715.
Citation232 P.3d 264
Case DateMarch 04, 2010
CourtCourt of Appeals of Colorado

232 P.3d 264

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Tom Wendell BARRUS, Defendant-Appellant.

No. 07CA1715.

Colorado Court of Appeals,
Div.
IV.

Dec. 24, 2009.
As Modified on Denial of Rehearing March 4, 2010.


232 P.3d 265

COPYRIGHT MATERIAL OMITTED

232 P.3d 266
John W. Suthers, Attorney General, Ryan A. Crane, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

McAllister Law Office, P.C., Sean T. McAllister, Breckenridge, Colorado, for Defendant-Appellant.

Opinion by Judge ROMÁN.

Defendant, Tom Wendell Barrus, appeals the judgment of conviction entered on a jury verdict finding him guilty of two counts of vehicular eluding, two counts of driving under suspension, obstructing a peace officer, second degree assault of a peace officer with a deadly weapon, indecent exposure, leaving the scene of an accident resulting in bodily injury, and three counts of leaving the scene of an accident resulting in property damage. We reverse the conviction for obstructing a peace officer and remand for a new trial on that charge, vacate the conviction for indecent exposure, and affirm in all other respects.

I. Facts
A. May 14, 2005 Incident

On May 14, 2005, a middle school teacher called the police to report a person with his pants down in a black Toyota car in the school parking lot. A deputy arrived at the scene, found the black Toyota, saw defendant inside the vehicle with his pants down, and knocked on the car window. Defendant did not respond. The deputy testified that he opened the door after defendant reached around his passenger seat, and the deputy

232 P.3d 267
became concerned about a weapon. The deputy further testified that he ordered defendant to turn off the car and then grabbed defendant's arm to keep him from driving away. According to the deputy, defendant then threw a glass of wine in his face, ignored his orders to stop, and began to drive off. At that point, the deputy used a taser to attempt to stop him but defendant appeared unaffected. A second deputy pursued him, but ended the pursuit in the interest of public safety.
B. June 2, 2005 Incident

Approximately two weeks later, a woman working in an office building called the police to report a man walking around naked in a parking lot. When an officer arrived on scene, she found a man sitting in a black Toyota. The officer testified that the man looked at her and then tried to start the car. The officer yelled, “Don't move,” and grabbed the man before he could close his car door. The two struggled, but the man drove away, dragging the officer for some period of time before leaving the parking lot. Another officer helped pursue the man, but he escaped after hitting three vehicles. The officer identified the man as defendant, who later was arrested without incident.

II. Joinder

Defendant contends that the trial court abused its discretion when it consolidated his two cases for trial and thus precluded him from presenting evidence of self-defense for the obstructing a peace officer charge. Whether self-defense is available in Colorado against this charge is an issue of first impression. We conclude that such a defense is available when a defendant reasonably believes that unreasonable or excessive force is being used by the peace officer, and therefore, the trial court abused its discretion in precluding the defense.

A. Legal Standard

Cases may be consolidated when the offenses in each could have been consolidated in a single information. Crim. P. 13; People v. Gross, 39 P.3d 1279, 1282 (Colo.App.2001). Consolidation is permissible if all of the offenses are of the same or similar character or are based on two or more acts or transactions that are connected together or are part of a single scheme and plan. People v. Williams, 899 P.2d 306, 313 (Colo.App.1995).

To succeed on a motion to sever the offenses for separate trials, a defendant must demonstrate actual prejudice. People v. Aalbu, 696 P.2d 796, 806 (Colo.1985); People v. Knight, 167 P.3d 147, 151 (Colo.App.2006). Such a showing requires more than establishing that “separate trials might afford the defendant a better chance of acquittal.” People v. Guffie, 749 P.2d 976, 982 (Colo.App.1987). Specifically, if a defendant wishes to testify on one count and not on another, he or she must make a convincing showing that he or she has both important testimony to give concerning one count and a strong need to refrain from testifying on the other count. Id. at 983.

The decision to deny a motion for severance lies within the sound discretion of the trial court. Aalbu, 696 P.2d at 806.

B. Background

Here, the trial court consolidated defendant's cases, finding that the “evidence of defendant's conduct in each case will be admissible in the other case based on the similar nature and character of defendant's alleged conduct on both occasions.” The court also determined that such evidence would be admissible to prove defendant's identity in each case and also to prove the absence of mistake or accident.

The trial court then evaluated whether defendant would suffer any resulting prejudice from consolidating the cases. Defendant argued that he would be prejudiced because he intended to testify regarding the charges from the May 14 incident to establish self-defense, but he would not testify regarding the June 2 incident.

The trial court concluded that self-defense was not a defense to obstructing a peace officer and stated, “defendant is not permitted to state an affirmative defense of self-defense.” Because the trial court determined

232 P.3d 268
self-defense was not available for the charges in the May 14 incident, it concluded that defendant would suffer no prejudice due to consolidation. Defendant did not testify at trial.
C. Whether Self-Defense is Available Against a Charge for Obstructing a Peace Officer

Based on the language in the obstruction statute, the trial court concluded that defendant was not entitled to assert self-defense. We disagree.

“The construction of a statute is a question of law that we review de novo.” People v. Madden, 111 P.3d 452, 457 (Colo.2005). We must read the words of a statute in context, see § 2-4-101, C.R.S.2009, give effect to the intent of the legislature, and look first to the plain and ordinary meaning of the statutory language. Madden, 111 P.3d at 457. When the statutory language is clear and unambiguous, we apply the provision as written. Turbyne v. People, 151 P.3d 563, 567 (Colo.2007).

The obstruction statute provides:

A person commits obstructing a peace officer ... when, by using or threatening to use violence, force, physical interference, or an obstacle, such person knowingly obstructs, impairs, or hinders the enforcement of the penal law or the preservation of the peace by a peace officer, acting under color of his or her official authority....

§ 18-8-104(1)(a), C.R.S.2009.

The trial court concluded that self-defense is unavailable in a prosecution under this section because subsection (2) provides, “It is no defense to a prosecution under this section that the peace officer was acting in an illegal manner, if he was acting under color of his official authority as defined in section 18-8-103(2).” § 18-8-104(2), C.R.S.2009.

However, subject to exceptions not here relevant, “a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person.” § 18-1-704(1), C.R.S.2009. This provision “permits a person to defend himself when he reasonably believes that unreasonable or excessive force, as proscribed by section 18-1-707(1)(a) [C.R.S.2009], is being used by law enforcement officers or that its use is imminent.” People v. Fuller, 781 P.2d 647, 650 (Colo.1989).

The People contend that because self-defense is only a defense against another's unlawful use of physical force, and the obstruction statute specifically precludes a defense that the peace officer was acting in an illegal manner, self-defense cannot be a defense to obstructing a peace officer. This argument fails.

The statute proscribing the crime of resisting an arrest has language that, similar to the obstruction statute, limits a defendant's defense. However, the resisting arrest statute also describes when a defendant has a right to self-defense:

It is no defense to a prosecution under this section that the peace officer was attempting to make an arrest which in fact was unlawful, if he was acting under color of his authority, and in attempting to make the arrest he was not resorting to unreasonable or excessive force giving rise to the right of self-defense.

§ 18-8-103(2), C.R.S.2009.

Our supreme court has acknowledged a right to self-defense against the crime of resisting arrest. See Fuller, 781 P.2d at...

To continue reading

Request your trial
10 practice notes
  • People v. Bondsteel, Court of Appeals No. 11CA1784
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2015
    ...court have accepted Gross, but with little further analysis. See People v. Curtis, 2014 COA 100, ¶ 12, 350 P.3d 949 ; People v. Barrus, 232 P.3d 264, 269 n. 1 (Colo. App. 2009) ; People v. Owens, 97 P.3d 227, 231 (Colo. App. 2004) ; People v. Dembry, 91 P.3d 431, 435 (Colo. App. 2003).4 Eve......
  • People ex rel. J.O., Court of Appeals No. 14CA0622
    • United States
    • Colorado Court of Appeals of Colorado
    • August 27, 2015
    ...“indicates that the General Assembly intended the prohibited conduct to be measured by an objective test.” See People v. Barrus, 232 P.3d 264, 272 (Colo.App.2009) (“Although the People were not required to prove that the witness was subjectively affronted or alarmed, the statute does requir......
  • People v. Curtis, Court of Appeals No. 12CA1528
    • United States
    • Colorado Court of Appeals of Colorado
    • August 14, 2014
    ...Id. Since then, other divisions of this court have adopted this conclusion, but without further analysis. See People v. Barrus, 232 P.3d 264, 269 n. 1 (Colo.App.2009) ; People v. Owens, 97 P.3d 227, 231 (Colo.App.2004) ; People v. Dembry, 91 P.3d 431, 435 (Colo.App.2003).¶ 61 For the follow......
  • People v. Cordova, No. 08CA1174.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 13, 2011
    ...People v. Gouker, 665 P.2d 113, 117 (Colo.1983) (failure to contest the validity of search warrant waived the issue); People v. Barrus, 232 P.3d 264, 270 (Colo.App.2009) (failure to contest validity of investigatory stop and attempted detention waived the issue); People v. Russom, 107 P.3d ......
  • Request a trial to view additional results
10 cases
  • People v. Bondsteel, Court of Appeals No. 11CA1784
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2015
    ...court have accepted Gross, but with little further analysis. See People v. Curtis, 2014 COA 100, ¶ 12, 350 P.3d 949 ; People v. Barrus, 232 P.3d 264, 269 n. 1 (Colo. App. 2009) ; People v. Owens, 97 P.3d 227, 231 (Colo. App. 2004) ; People v. Dembry, 91 P.3d 431, 435 (Colo. App. 2003).4 Eve......
  • People ex rel. J.O., Court of Appeals No. 14CA0622
    • United States
    • Colorado Court of Appeals of Colorado
    • August 27, 2015
    ...“indicates that the General Assembly intended the prohibited conduct to be measured by an objective test.” See People v. Barrus, 232 P.3d 264, 272 (Colo.App.2009) (“Although the People were not required to prove that the witness was subjectively affronted or alarmed, the statute does requir......
  • People v. Curtis, Court of Appeals No. 12CA1528
    • United States
    • Colorado Court of Appeals of Colorado
    • August 14, 2014
    ...Id. Since then, other divisions of this court have adopted this conclusion, but without further analysis. See People v. Barrus, 232 P.3d 264, 269 n. 1 (Colo.App.2009) ; People v. Owens, 97 P.3d 227, 231 (Colo.App.2004) ; People v. Dembry, 91 P.3d 431, 435 (Colo.App.2003).¶ 61 For the follow......
  • People v. Cordova, No. 08CA1174.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 13, 2011
    ...People v. Gouker, 665 P.2d 113, 117 (Colo.1983) (failure to contest the validity of search warrant waived the issue); People v. Barrus, 232 P.3d 264, 270 (Colo.App.2009) (failure to contest validity of investigatory stop and attempted detention waived the issue); People v. Russom, 107 P.3d ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT