Peo v. Aguirre

22CA0474 Peo v Aguirre 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0474

Jefferson County District Court No. 20CR4195

Honorable Diego G. Hunt, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jeremy Paul Aguirre,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III

Opinion by JUDGE MOULTRIE

Dunn and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 25, 2024

Philip J. Weiser, Attorney General, Alejandro Gonzales, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

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¶ 1 Defendant, Jeremy Paul Aguirre, appeals the judgment of

conviction entered on a jury verdict finding him guilty of driving

under the influence with three or more prior alcohol-related driving

convictions (felony DUI). We affirm.

I. Background

¶ 2 In December 2020, Aguirre hit another car and fled the scene.

Officer Eric Strasheim was dispatched to the accident area and

located Aguirre in a vehicle matching the description of one of the

vehicles involved in the accident at a stoplight’s left turn lane.

Officer Strasheim pulled into the turn lane behind Aguirre and

watched Aguirre begin to drive again and turn left after the light

had already turned green twice. As Aguirre began to drive again,

Officer Strasheim activated his emergency lights and sirens, but

Aguirre did not stop. Another police officer, Sergeant Gregory Luby,

arrived on scene, pulled his vehicle in front of Aguirre’s, and slowed

until Aguirre was forced to come to a stop.

¶ 3 When Sergeant Luby approached Aguirre, Aguirre was slow to

respond and had “bloodshot, watery eyes.” Sergeant Luby asked

Aguirre whether he’d had anything to drink and Aguirre said, “[N]ot

that much.” Aguirre used the car door for support and struggled to

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maintain his balance when Sergeant Luby asked him to exit his

vehicle. After exiting the vehicle, Aguirre gave his driver’s license to

Sergeant Luby and, during an inventory search of Aguirre’s car,

another officer — Officer Elias Brown — observed an open can of

beer in the center cupholder.

¶ 4 Officer Adrienne Blackwood arrested Aguirre for driving under

the influence (DUI), explained Colorado’s express consent statute to

him, and advised him that his license would be suspended if he

refused to take a blood or breath test. Aguirre refused to take a

blood or breath test, and Officer Blackwood completed an express

consent affidavit noting Aguirre’s refusal. The affidavit included

identifying information provided by and confirmed with Aguirre.

¶ 5 Because Aguirre had three prior convictions for drunk driving,

the prosecution charged him with one count of felony DUI.

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After a

two-day trial, the jury convicted Aguirre. The district court

sentenced Aguirre to two years of supervised probation.

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The prosecution also charged Aguirre with one count each of the

following: leaving the scene of an accident, careless driving, driving

under restraint, compulsory insurance, and illegal possession or

consumption of alcohol in motor vehicle. The prosecution

dismissed these charges prior to trial.

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¶ 6 Aguirre argues that (1) the evidence was insufficient to prove

beyond a reasonable doubt that he had been convicted of three

prior offenses as required by section 42-4-1301(1)(a), C.R.S. 2023,

for felony DUI; (2) the district court erred by admitting evidence that

he injured the driver of another vehicle and evidence that the

location where officers forced him to stop his vehicle was

dangerous; and (3) the district court erred by instructing the jury

that it could consider his refusal to submit to a chemical test of his

blood in determining his guilt or innocence. We address each

contention below.

II. Sufficiency of the Evidence for Conviction

¶ 7 Aguirre first argues that the prosecution presented insufficient

evidence to sustain a conviction for felony DUI because the

prosecution failed to provide specific corroborating identification

evidence connecting him to the prior convictions. We disagree.

A. Additional Background

¶ 8 At trial, the prosecution admitted certified copies of sentencing

orders reflecting three convictions for someone with Aguirre’s exact

name and date of birth: (1) a conviction in Adams County for

driving while ability impaired (DWAI) resulting from a 2016 offense;

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(2) a conviction in Arapahoe County for DUI resulting from a 2005

offense; and (3) a conviction in Boulder County for DWAI resulting

from a 2003 offense.

¶ 9 The prosecution also introduced Aguirre’s official Colorado

Division of Motor Vehicles (DMV) driver history. That exhibit

provided driver information for “Jeremy Paul Aguirre,” including a

driver’s license number, birth date, sex, height, weight, eye color,

hair color, and address. The driver history also referenced three

convictions for offenses from the same counties and with the same

offense dates as those listed in the court sentencing records.

¶ 10 Officer Blackwood testified that she reviewed the court

sentencing and DMV records and confirmed that the offense dates

matched. She also confirmed that the birth date listed on the DMV

records and the court sentencing records matched the express

consent affidavit she reviewed with Aguirre and had him sign.

Officer Blackwood assisted Officer Brown with booking Aguirre at

the police station after Aguirre was arrested, which included taking

Aguirre’s fingerprints. Officer Brown testified that he conducted a

criminal history background check that showed Aguirre had three

existing convictions, two for DWAI and one for DUI.

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¶ 11 Aguirre moved for a judgment of acquittal, arguing that the

prosecution failed to prove beyond a reasonable doubt that he was

the same person as the person with three prior convictions

identified in the sentencing records and the DMV driver history.

The district court denied Aguirre’s motion, finding that the admitted

exhibits — which included the driver history, the express consent

form, and the sentencing record — were competent evidence of the

prior convictions.

B. Standard of Review

¶ 12 “We review the record de novo to determine whether the

evidence presented was sufficient in both quantity and quality to

sustain a defendant’s conviction.” McCoy v. People, 2019 CO 44,

¶ 63. In doing so, we consider “whether the relevant evidence, both

direct and circumstantial, when viewed as a whole and in the light

most favorable to the prosecution, is substantial and sufficient to

support a conclusion by a reasonable mind that the defendant is

guilty of the charge beyond a reasonable doubt.” Clark v. People,

232 P.3d 1287, 1291 (Colo. 2010) (quoting People v. Bennett, 183

Colo. 125, 130, 515 P.2d 466, 469 (1973)). We don’t consider

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whether we might have reached a different conclusion than the

jury. Thomas v. People, 2021 CO 84, ¶ 10.

C. Applicable Law

¶ 13 Under section 42-4-1301(1)(a), a person who drives a motor

vehicle under the influence of alcohol commits DUI. That section

provides that DUI “is a class 4 felony if the violation occurred after

three or more prior convictions, arising out of separate and distinct

criminal episodes” for DUI or DWAI. § 42-4-1301(1)(a). As relevant

here, a person is deemed to have a prior conviction for DUI if

they’ve previously been convicted for DUI or DWAI under Colorado

law. See § 42-4-1301(1)(j). A conviction “consists of the entry of a

plea, a verdict or a finding of guilt, and the sentence imposed

thereon.” People v. Harvey, 819 P.2d 1087, 1088 (Colo. App. 1991).

¶ 14 A third or subsequent offense under section 42-4-1301(1)(a) is

an element of felony DUI that must be proved beyond a reasonable

doubt. Linnebur v. People, 2020 CO 79M, ¶ 2, overruled on other

grounds by People v. Crabtree, 2024 CO 40M. And to prove this

element, the prosecution “must establish an essential link between

the prior conviction and the defendant.” Gorostieta v. People, 2022

CO 41, ¶ 26. “[T]his requires the prosecution to present some

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documentary evidence combined with specific corroborating

evidence of identification connecting the defendant to the prior

felony conviction.” Id.

D. Analysis

¶ 15 Relying on Gorostieta, Aguirre argues that the prosecution

failed to present specific corroborating identification evidence

connecting him to the prior convictions.

¶ 16 In Gorostieta, the Colorado Supreme Court considered the

types of evidence that could be sufficient to link a defendant to a

prior conviction and concluded that evidence such as a shared

name and date of birth, offenses occurring in the same county, and

matching physical descriptions constituted “corroborating evidence

[that] might be helpful in establishing that the defendant committed

the prior crime.” Id. at ¶ 27. The court further noted that “the

mere fact that the defendants in the present and prior cases have

the same name and date of birth, without more, will generally be

insufficient.” Id. at ¶ 28.

¶ 17 We agree with Aguirre that evidence of his name and date of

birth alone matching the prior convictions would have been

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insufficient. But the prosecution didn’t rely solely on Aguirre’s

name and date of birth. See id. at ¶ 33.

¶ 18 Officer Blackwood testified she completed the express consent

affidavit when Aguirre was arrested based on the information

Aguirre provided about his driver’s license number, name, birth

date, physical description, and mailing address. The prosecution

then admitted the certified DMV records for “Jeremy Paul Aguirre,”

which included the same driver’s license number, birth date, sex,

height, weight, eye color, hair color, and address that Aguirre

provided to Officer Blackwood for the express consent affidavit.

Each page of the DMV records contained Aguirre’s driver’s license

number on the top, which was identical to the driver’s license

number on the express consent affidavit. See id. at ¶ 27 (noting

that a driver’s license is a type of unique identifier that may be

helpful in establishing that the defendant committed the prior

crime). The DMV records were certified in accordance with

section 42-2-121(2)(c)(II), C.R.S. 2023, and included an attestation

from the DMV records custodian stating that “[a] search of our

records has revealed that this is the only subject with this name

and date of birth.”

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¶ 19 The DMV records indicated that Jeremey Paul Aguirre had

three prior convictions: (1) a 2016 DWAI in Adams County; (2) a

2005 DUI in Arapahoe County; and (3) a 2003 DWAI in Boulder

County.

¶ 20 Aguirre concedes that the DMV history contains identifying

information that matches the information in the express consent

affidavit but argues that there is no indication of how the

“convictions” section of the DMV history is linked to the rest of the

document. But each page of the DMV history — including the

section containing the convictions — contains Aguirre’s driver’s

license number (identified as the DMV records account number) —

which Officer Blackwood confirmed with Aguirre at the time of his

arrest. And the certified sentencing orders — each of which reflects

a conviction — have the same name, date of birth, and offense dates

in corresponding counties as the convictions listed in the DMV

history associated with Aguirre’s license number.

¶ 21 Additionally, in line with Gorostieta, the jury could have

compared the physical description contained in these records to

Aguirre, who was present in the courtroom. Indeed, Officer

Blackwood identified Aguirre for the jury during trial. And the jury

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heard the testimony of Officers Blackwood and Brown linking

Aguirre to the convictions identified in the records. Thus, when

viewed as a whole, and giving the prosecution the benefit of every

reasonable inference as we must, we conclude this evidence was

sufficient for the jury to find beyond a reasonable doubt that

Aguirre committed felony DUI.

III. Admissibility of Evidence Under CRE 401 and CRE 403

¶ 22 Aguirre next asserts that the district court violated CRE 401

and CRE 403 when it admitted evidence that the location where

officers forced him to stop was dangerous and evidence that he

injured the driver of another vehicle. We are not persuaded.

A. Additional Background

¶ 23 Several officers testified for the prosecution. Sergeant

Strasheim stated that “[b]eing in the left-hand through lane [where

Aguirre was stopped] is dangerous” and because of a hill that

limited a driver’s view, “[i]t was a dangerous place to be.” Sergeant

Strasheim further testified that he served in a security role at the

scene of the arrest due to the dangerous location and that he

“would watch as traffic was cresting the hill, and make sure that

there were no distraction[s] and [that] people weren’t distracted and

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going to run into the back of us.” Aguirre objected to this testimony

under CRE 401 and CRE 403, but was overruled.

¶ 24 Sergeant Luby testified that he had safety concerns for the

arrest location because the vehicle was “in the number one lane, on

basically a highway, busy, it’s three lanes each direction with a

center median.” Aguirre did not object to this testimony.

¶ 25 Officer Blackwood testified that she was dispatched in

response to an injury crash. Aguirre objected to this testimony but

was overruled.

¶ 26 Officer Brown testified that he was dispatched to the scene of

the accident where the vehicle Aguirre hit had sustained damage.

Over Aguirre’s objection to relevance and hearsay, Officer Brown

identified the individual in the vehicle by name and stated that she

“appeared to be upset and scared, consistent with someone who

had just been involved in a traffic accident.”

B. Preservation and Standard of Review

¶ 27 We review a district court’s evidentiary rulings for an abuse of

discretion. Gonzales v. People, 2020 CO 71, ¶ 25. A court abuses

its discretion when its decision is manifestly arbitrary,

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unreasonable, or unfair, or based on an erroneous understanding of

the law. Yusem v. People, 210 P.3d 458, 463 (Colo. 2009).

¶ 28 As a preliminary matter, Aguirre and the People disagree as to

whether Aguirre’s objection to Sergeant Luby’s testimony was

preserved or whether Aguirre’s objection to the portion of Officer

Brown’s testimony concerning the victim’s behavior after the

accident was preserved.

¶ 29 If a claim was not preserved, we reverse only for plain error.

Hagos v. People, 2012 CO 63, ¶ 14. We review preserved claims for

nonconstitutional harmless error and reverse only if the error

substantially influenced the verdict or affected the fairness of the

trial proceedings. People v. Martinez, 2020 COA 141, ¶¶ 26-28.

C. Applicable Law

¶ 30 “Relevant evidence” is evidence that tends to make the

existence of a fact that is of consequence to the determination of the

action more or less probable than it would be without the evidence.

CRE 401. Relevant evidence is generally admissible. CRE 402.

Relevant evidence may be excluded “if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.” CRE 403. We

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afford evidence its maximum probative value and assume its

minimum unfair prejudice. People v. Wakefield, 2018 COA 37,

¶ 72.

D. Analysis

¶ 31 Assuming without deciding that Aguirre’s objections to each

officers’ testimony were preserved, we conclude that any error in

admitting the testimony was harmless because it didn’t

substantially influence the verdict or affect the fairness of the trial.

The statements from the officers were brief, and they provided

factual context about the steps officers took during their

investigation of the events leading to Aguirre’s arrest. And the court

instructed the jury that any out-of-court statements regarding “law

enforcements’ dispatch to the scene” could only be considered for

their effect on the listener. See People v. Mersman, 148 P.3d 199,

203-04 (Colo. App. 2006) (identifying curative instructions as a

remedy to alleged prejudice to a defendant). Thus, we conclude

that the probative value of the statements outweighed any prejudice

to Aguirre.

¶ 32 Furthermore, the evidence supporting Aguirre’s conviction was

overwhelming. In addition to the evidence presented about the

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prior convictions, the jury heard ample evidence of the officers’

observations of Aguirre’s intoxication — including that he had

bloodshot, watery eyes; he displayed a lack of coordination; he

stated that he did “not [have] that much” to drink; and Officer

Brown found a beer can in the center console of Aguirre’s car. See

Campbell v. People, 2019 CO 66, ¶¶ 36-40.

¶ 33 We thus reject Aguirre’s assertion that the admission of the

testimony regarding injuries to the other driver or the

dangerousness of the location of the traffic stop substantially

influenced the verdict or affected the fairness of the trial.

IV. Jury Instruction Regarding Aguirre’s Refusal to Submit to a

Chemical Test

¶ 34 Finally, Aguirre argues that the district court erred when it

instructed the jury that it could consider his refusal to submit to a

chemical test of his blood in determining his guilt or innocence.

Specifically, Aguirre asserts the instruction improperly emphasized

evidence of his refusal. We disagree.

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A. Additional Background

¶ 35 Based upon Aguirre’s refusal to submit to testing, the

prosecution requested, and the district court gave, the following

instruction:

You are instructed that any person who drives

any motor vehicle in the State of Colorado may

be required to submit to a chemical test for the

purpose of determining the alcoholic content of

his or her blood. If a person refuses to submit

to such chemical test, then the jury may

consider such refusal along with all other

competent evidence in determining the

defendant’s guilt or innocence.

¶ 36 Aguirre objected to the instruction, arguing that it improperly

emphasized an evidentiary fact. The district court overruled the

objection, finding that the instruction “is an accurate statement of

law” in conformity with section 42-4-1301(6)(a), “as opposed to an

emphasis necessarily on particular evidence.” The court further

noted that without such an instruction, “the jury would not know

what the law provides” with respect to requiring a chemical test to

determine a driver’s blood alcohol content and “that the refusal is

otherwise admissible, despite the defendant’s right not to testify.”

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B. Standard of Review and Applicable Law

¶ 37 A district court has a duty to correctly instruct the jury on all

matters of the law. Bedor v. Johnson, 2013 CO 4, ¶ 8. We review

de novo whether the jury instructions correctly stated the law and

adequately informed the jury of the governing law. Garcia v. People,

2022 CO 6, ¶ 16. “As long as the instruction properly informs the

jury of the law, a trial court has broad discretion to determine the

form and style of jury instructions.” McDonald v. People, 2021 CO

64, ¶ 54 (quoting Day v. Johnson, 255 P.3d 1064, 1067 (Colo.

2011)). “Therefore, we review a trial court’s decision to give a

particular jury instruction for an abuse of discretion.” Id. (quoting

Day, 255 P.3d at 1067). “A trial court’s ruling on jury instructions

is an abuse of discretion only when the ruling is manifestly

arbitrary, unreasonable, or unfair.” Id. (quoting Day, 255 P.3d at

1067).

¶ 38 Section 42-4-1301.1(1), C.R.S. 2023, provides that a driver

operating a motor vehicle in Colorado consents to the provisions of

the express consent statute. That statute provides that any person

who drives in Colorado must “cooperate in the taking and

completing of” testing to determine their blood or breath alcohol

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content if a law enforcement officer has probable cause to believe

the person is driving while impaired. § 42-4-1301.1(2)(a)(I).

¶ 39 If a driver refuses a breath or blood test, evidence that the

driver refused the test is admissible in a DUI trial.

§ 42-4-1301(6)(d); Mersman, 148 P.3d at 201 (“[I]t is proper to

instruct a jury that it can consider a driver’s refusal to take a blood

or breath test, along with other evidence, in determining his or her

guilt of driving under the influence.”). It’s ultimately for the jury to

determine “[t]he weight to be given the evidence of refusal.” Cox v.

People, 735 P.2d 153, 159 (Colo. 1987).

C. Analysis

¶ 40 Aguirre contends that the district court erred by providing the

jury with an instruction that emphasized his refusal to submit to a

chemical test of his blood. We discern no error.

¶ 41 First, we note that our supreme court has consistently held

that there is no constitutional right to refuse such testing, and

evidence of such refusal can be used as evidence of guilt. See, e.g.,

Fitzgerald v. People, 2017 CO 26, ¶ 21; Cox, 735 P.2d at 159.

Aguirre urges us to adopt out-of-state authority holding that such

jury instructions are improper. Because we have clear precedent

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from our supreme court, we decline to do so. People v. Phillips,

2012 COA 176, ¶ 59.

¶ 42 Second, the district court provided an instruction identical to

the instruction our supreme court approved in Cox. See 735 P.2d

at 155. Additionally, the instruction closely tracked the language of

section 42-4-1301(6)(d). People v. Garcia, 2021 COA 80, ¶ 10 (jury

instructions “that accurately track the language of the applicable

statute are generally sufficient”), aff’d, 2023 CO 30. Because the

district court instructed the jury that it “may consider” evidence of

his refusal “along with all other competent evidence,” and because

the instruction informed the jury of the points of law related to

refusal, we conclude that there was no error.

V. Disposition

¶ 43 We affirm the judgment of conviction.

JUDGE DUNN and JUDGE YUN concur.