CourtListener 10123950

Testo completo

22CA1806 Peo v Young 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1806
Gilpin County District Court No. 22CR20
Honorable Todd L. Vriesman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

Arthur Robert Young,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE FOX
Johnson and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 12, 2024

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

The Law Office of Sean C. Thomson, LLC, Sean C. Thomson, Denver, Colorado,
for Defendant-Appellant
¶1 Defendant, Arthur Robert Young, appeals the judgment of

conviction entered on a jury verdict finding him guilty of second

degree burglary. We affirm.

I. Background

¶2 The People charged Young with second degree burglary, theft,

and criminal mischief based on allegations that he, and at least two

others, broke into the victim’s home, stole items, ransacked the

house, and used her garage as a chop shop. After the preliminary

hearing, which was continued outside of the thirty-five-day

statutory deadline over Young’s objection, the county court

dismissed the theft and criminal mischief charges for lack of

probable cause, binding over to district court only the second

degree burglary charge.

¶3 At the jury trial, the prosecution presented evidence that, one

morning in February, the victim’s neighbors were walking by her

summer home when they noticed that people were loading

household items into a white SUV and trailer. The neighbors

continued their walk and fifteen to twenty minutes later they saw

the same SUV and noticed that the people were wearing “gaiter style

masks” and there was a tarp over the trailer. When the neighbors

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got home, they called the victim, who contacted her friend (and

caretaker of her home) to check on the house.

¶4 The victim’s friend had last been at her home two days earlier

— he had plowed the driveway and had been inside the home with a

painter. At that time, nothing looked out of place; however, when

the victim’s friend went to check on the home after the call, he

noticed that there were many tire tracks in the driveway and the

house was “a wreck.” Inside, there were greasy footprints on the

carpet, the furniture had been rearranged, and things were “out of

order.” In the garage, the victim’s friend saw a large hole in the

ceiling, the victim’s Honda was missing, and there was a bucket of

transmission fluid, a large oil stain, and cigarette butts on the floor.

The victim’s friend called the police, and when the victim arrived at

her home, she noticed that many household items, including food

and furniture, were missing as well.

¶5 The investigating officer collected evidence, including three

cigarette butts found in the garage. And based on the hole in the

ceiling, tarps covering the windows, chains on the floor, and the

vehicle fluids he observed, the investigator believed the victim’s

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garage had been used as a “chop shop” where the burglars

disassembled vehicles.

¶6 A day earlier, police found a Subaru, which had been reported

as stolen, in a ditch about a mile away from the victim’s house. The

Subaru was missing an engine and contained cigarettes that the

investigator testified were consistent with the cigarettes found in

the victim’s garage.

¶7 As part of a neighborhood canvas, police obtained a

surveillance video of the SUV and trailer leaving the victim’s home.

Based on this surveillance and a partial license plate number the

neighbors provided, police were able to locate the SUV. They also

located the victim’s stolen Honda, which was being driven by the

codefendant.

¶8 The codefendant, who had already been convicted of the

burglary and was then serving his sentence, testified that he did not

break or enter. Rather, he was brought to the home and was

hanging out and doing drugs with a man named Kevin. He

remembered smoking cigarettes and being given a car — the

victim’s Honda that he was later arrested in. When asked if Young

was in the house with him, he said he could not remember,

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explaining that it had “been over a year and a half,” he had “had

numerous amounts of seizures,” and he was using drugs at that

time.

¶9 The three cigarette butts collected from the garage were

submitted for DNA testing. A forensic DNA analyst opined as an

expert at trial that one of the cigarette butts contained a single

source DNA profile matching the codefendant, and the other two

cigarette butts each contained a single source DNA profile matching

Young. The analyst testified that none of the DNA found on the

cigarettes could have been contributed by the victim.

¶ 10 Young testified and denied ever being in the victim’s home or

in the vicinity around the time of the burglary. He denied being

involved in the burglary and while he admitted to being a smoker,

he had “no clue” how the cigarette butts with his DNA ended up in

the victim’s garage.

¶ 11 A jury convicted Young of second degree burglary, and the

district court sentenced him to four years in prison.

II. Sufficiency of the Evidence

¶ 12 Young first contends that the district court erred by not

granting his motion for judgment of acquittal because the admitted

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DNA evidence was insufficient to establish identity or that he acted

with the requisite intent. We are not persuaded.

A. Standard of Review

¶ 13 We review de novo a district court’s denial of a motion for

judgment of acquittal based on insufficiency of the evidence.

Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005).

¶ 14 In our review, we consider whether the evidence, direct and

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

favorable to the prosecution, is substantial and sufficient to support

the defendant’s guilt beyond a reasonable doubt. Clark v. People,

232 P.3d 1287, 1291 (Colo. 2010). We give the prosecution the

benefit of every reasonable inference that can fairly be drawn from

the evidence, so long as such inferences are supported by a

convincing logical connection between the facts established and the

conclusion inferred. People v. Perez, 2016 CO 12, ¶ 25. If the

record contains evidence upon which the fact finder could

reasonably infer an element is satisfied, or if reasonable minds

could differ, the evidence is sufficient. See People v. Grant, 174

P.3d 798, 812 (Colo. App. 2007).

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B. Analysis

¶ 15 A burglary conviction requires the prosecution to prove beyond

a reasonable doubt that a person knowingly broke an entrance into,

entered unlawfully in, or remained unlawfully after a lawful or

unlawful entry in, a building or occupied structure, with the intent

to commit therein the crimes of theft and or criminal mischief

against another person or property. See § 18-4-203(1), C.R.S.

2024. Theft means the person knowingly obtained, retained, or

exercised control over anything of value, in such a manner as to

deprive the other person permanently of its use or benefit. See

§ 18-4-401(1)(b), C.R.S. 2024. And criminal mischief means that

the person knowingly damaged the real or personal property of one

or more persons in the course of a single criminal episode. See

§ 18-4-501(1), C.R.S. 2024.

¶ 16 The parties do not dispute the trial evidence showing that

multiple people entered the victim’s home without her permission,

ransacked the home, stole her property, and used the garage as a

chop shop. Rather, the dispute concerns whether Young was one of

those individuals.

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¶ 17 We conclude that sufficient evidence established Young’s

identity. Young’s DNA was found on two of the cigarette butts

found inside the victim’s garage, a place they were extremely

unlikely to be if Young was not one of the burglars because the

victim did not know Young, and he had not previously been at her

home. Cf. Clark, 232 P.3d at 1292-94 (DNA evidence supported

conviction where it was found on a sweatshirt inside the victim’s

home); People v. Harland, 251 P.3d 515, 518 (Colo. App. 2010) (DNA

evidence supported conviction where it was found inside victim’s

home and victim did not know defendant and he had never been

inside her home). Indeed, there is no reasonable explanation for the

presence of Young’s DNA in the places it was found other than it

was deposited during the commission of the burglary. Moreover,

the codefendant’s DNA was found on the third cigarette butt — the

same codefendant who admitted to participating in the burglary and

was found in possession of the victim’s car, which was taken from

her garage.

¶ 18 Young argues that the evidence was nevertheless insufficient

to show that he participated in the burglary because the “only thing

that tied [him] to this case was a DNA match” and under the

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sufficiency of the evidence test articulated in People v. Clark, 214

P.3d 531 (Colo. App. 2009), aff’d on other grounds, 232 P.3d 1287,

DNA evidence must be corroborated by other evidence that the

defendant was the perpetrator to support the conviction. But, as

the People note, the supreme court’s decision in Clark explicitly

rejects the requirement that “to be legally sufficient to sustain a

conviction, [DNA evidence] must be coupled with evidence of other

circumstances tending to reasonably exclude the hypothesis that

the DNA was deposited at a time other than that of the crime.”

Clark, 232 P.3d at 1292-93. Because we are bound by decisions of

the supreme court, we follow its mandate here. See People v. Wise,

2014 COA 83, ¶ 8.

¶ 19 Therefore, when viewed as a whole and in the light most

favorable to the prosecution, we conclude the evidence and the

reasonable inferences from it are sufficient to support a conclusion

by a reasonable person that Young was a participant in the

burglary of the victim’s home.

¶ 20 Alternatively, Young contends that even if the evidence is

sufficient to establish that he was physically present in the victim’s

home, it is insufficient to establish that he participated in the

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burglary. Circumstances such as “the location of the DNA, the

character of the place or premises where it was found, [and] the

accessibility of that place or premises to the general public” are all

fact questions the jury may assess. Clark, 232 P.3d at 1293. And

based on the evidence presented, the jury could have reasonably

concluded that the burglary occurred in the two days between when

the victim’s friend was last at the house and when her neighbors

noticed the SUV leaving with household items and called the police.

Also, that is the timeframe for when the cigarette butts were left in

the garage.

¶ 21 Moreover, because the jury was instructed on the theory of

complicity, the prosecution did not have to prove that Young

committed the burglary as a principal. See § 18-1-603, C.R.S. 2024

(“A person is legally accountable as principal for the behavior of

another constituting a criminal offense if, with the intent to promote

or facilitate the commission of the offense, he or she aids, abets,

advises, or encourages the other person in planning or committing

the offense.”). Rather, because the DNA evidence placed Young in

the garage during the same period of time when the burglary

occurred, and based on the evidence presented, the jury could have

9
reasonably concluded that he participated in the burglary as a

principal or a complicitor. See People v. Fisher, 904 P.2d 1326,

1330-31 (Colo. App. 1994) (“Under a complicity theory, although all

of the elements of a crime must have been committed, it is not

necessary that any single person have done so. It is only necessary

that the acts of the complicitor and the other actor or actors,

together, constitute all acts necessary to complete the offense.”).

¶ 22 We likewise reject Young’s contention that the evidence was

insufficient to establish that he had the requisite intent to commit

criminal mischief or theft. Intent is a state of mind existing at the

time a person commits an offense, and it need not be proved by

direct substantive evidence. People v. Tucker, 232 P.3d 194, 201

(Colo. App. 2009). Rather, an offender’s state of mind may be

inferred from their conduct and the reasonable inferences that may

be drawn from the circumstances of the case. Id. The evidence

showed that at least three individuals entered the victim’s home

without permission over the course of two days and, once inside,

ransacked the home, stole the victim’s property, and used the

victim’s garage as a chop shop. Because the evidence overwhelming

established that the burglars stole items and damaged property, the

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jury could reasonably infer that they all had the intent to commit

theft or criminal mischief. See People v. Chase, 2013 COA 27, ¶ 50

(“If there is evidence upon which one may reasonably infer an

element of the crime, the evidence is sufficient to sustain that

element.”).

¶ 23 Accordingly, we conclude that the evidence was substantial

and sufficient to prove that Young committed the crime of second

degree burglary, and the district court properly denied the motion

for judgment of acquittal.

III. Preliminary Hearing

¶ 24 Next, we address Young’s contention that the district court

reversibly erred when it found good cause to continue his

preliminary hearing beyond thirty-five days.

¶ 25 Under section 16-5-301(1)(a), C.R.S. 2024, “[e]very person

accused of a class 1, 2, or 3 felony . . . has the right to demand and

receive a preliminary hearing.” See also Crim. P. 5(a)(4). The

purpose of a preliminary hearing “is to screen out cases in which

prosecution is unwarranted by allowing an impartial judge to

determine whether there is probable cause to believe that the crime

charged may have been committed by the defendant.” People v.

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Nichelson, 219 P.3d 1064, 1066-67 (Colo. 2009) (citation omitted).

The preliminary hearing “shall be held within 35 days of the day of

setting, unless good cause for continuing the hearing beyond that

time is shown to the court.” Crim. P. 5(a)(4)(I).

¶ 26 A defendant who seeks appellate review of a court’s failure to

hold a preliminary hearing according to the procedural rules must

seek immediate review in the supreme court “because, if the

defendant is convicted at trial, the alleged error in denying the

preliminary hearing becomes moot.” People v. Gillis, 2020 COA 68,

¶ 23. The proper procedure for seeking such review is a C.A.R. 21

petition to the Colorado Supreme Court. Id.; see also C.A.R. 21.

¶ 27 We decline to reach Young’s claim that the court erred by

finding good cause to hold his preliminary hearing beyond the

thirty-five-day procedural deadline because the issue is moot.

Gillis, ¶ 23. Young failed to pursue the only remedy available to

him — a petition to the supreme court under C.A.R. 21 — before his

case proceeded to trial. And because he was found guilty of second

degree burglary at trial, his claim is moot. People v. Morse, 2023

COA 27, ¶ 68 (“[O]nce a defendant has been convicted at trial, any

error in the denial of a preliminary hearing is moot because the

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defendant has been proved guilty beyond a reasonable doubt.”); cf.

People v. Hacke, 2023 CO 6 (“Once the trial has occurred, the right

to a preliminary hearing is as useful as a chocolate teapot.”).

IV. Denial of Mistrial

¶ 28 Finally, we address, and reject, Young’s contention that the

district court abused its discretion when it denied his motion for a

mistrial after the prosecution elicited evidence of a “preliminary lab

result” with a “positive DNA match” on the abandoned Subaru

found near the victim’s home a day before the burglary was

reported to police.

A. Additional Background

¶ 29 As noted, a stolen Subaru was found abandoned in a ditch

about a mile from the victim’s home. It was missing an engine and

law enforcement believed it was connected to the burglary. During

the prosecution’s case-in-chief, one of the investigators testified that

the brand of cigarettes that were found in the Subaru were

consistent with the cigarette butts that were found in the victim’s

garage. The investigator testified that the codefendant was arrested

inside the victim’s car and the cigarette butts found in the victim’s

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home contained DNA matching the codefendant and Young. After

this testimony, the following exchange occurred:

PROSECUTOR: Were you trying to identify any
other individuals that may have been at the
house with [Young] or [the codefendant]?

INVESTIGATOR: Yes.

PROSECUTOR: Okay.

INVESTIGATOR: Since we knew we had at
least three people involved. And we had
eyewitnesses. And we have cameras showing
there has to be at least two people because two
cars are driving away. And the registered — or
sorry, the unregistered possessor of the white
SUV that was identified, he became our third
suspect.

PROSECUTOR: And was his first name Kevin?

INVESTIGATOR: Yes.

PROSECUTOR: Okay. And then turning back
to that Subaru, did you receive information
regarding a preliminary lab result in that case?

INVESTIGATOR: As we — we had already been
coordinating with Lakewood PD for the
recovery of one of the vehicles and [the
codefendant’s] prosecution. So I was already
in touch with the detective back and forth.
And as I said, you know, we have, you know
recovered, just the day before, one of your
stolen cars. So we’re just playing these
musical chairs with cars here. And he sent me
that report. And it had a positive DNA match
on it as well.

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¶ 30 Following this exchange, defense counsel objected and

requested a mistrial. Outside of the presence of the jury, defense

counsel explained the “positive DNA match” referred to touch DNA,

purportedly belonging to Young, that was taken from the Subaru.

Defense counsel argued that the DNA evidence was inadmissible

because there was “no confirmation analysis done” and prejudicial

because it “ties [Young] to this, you know, this chop shop

operation.” The prosecutor acknowledged that there was not a

confirmation report and that she had misread discovery.

Nevertheless, she argued that “[n]one of that information was about

whether it was [Young’s] DNA, whether it was on the steering wheel”

and the line of questioning was not improper because no DNA

results were ever revealed to the jury.

¶ 31 The district court denied the motion for a mistrial. The court

found that there was no “intentional conduct.” And because there

was other evidence that tied Young to the scene — namely, “DNA

evidence on two cigarette[] butts that were found in or about the

garage of the dwelling” — “the implied evidence from the testimony,”

“if it were truly an implication,” was “not as important” and

therefore, did not “prejudice [Young’s] rights to a fair and impartial

15
trial.” Additionally, the court noted that it offered to provide a

curative jury instruction, but defense counsel declined because it

would only “increase the prejudicial effect and nature of the

occurrence, tying [Young] into something that [the jury] might have

thought was so subtle that smart lawyers would realize, but maybe

[the jury] didn’t.”

B. Applicable Law and Standard of Review

¶ 32 A mistrial is “the most drastic of remedies.” People v. Owens,

2024 CO 10, ¶ 125. It is warranted only when the prejudice to the

defendant is too substantial to be remedied by other means. Id.

¶ 33 A district court has broad discretion to grant or deny a motion

for a mistrial, and an appellate court will not disturb its decision

absent a gross abuse of discretion and prejudice to the defendant.

Id. A district court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair, or when it misapplies

the law. People v. Van Meter, 2018 COA 13, ¶ 9.

C. Analysis

¶ 34 We discern no abuse of discretion in the district court’s ruling

for two reasons. First, we disagree with Young’s contention that

“the only reasonable inference” from the investigator’s testimony is

16
that the “positive DNA match” was for Young. The investigator

never testified that the DNA on the stolen Subaru matched Young

and, considered in context, the challenged testimony was

ambiguous and brief. See People v. Lahr, 2013 COA 57, ¶ 24 (“[W]e

deem inadmissible evidence to have less prejudicial impact when

the reference is ‘fleeting.’”) (citation omitted). Moreover, the

questioning just prior referred to the third suspect, Kevin, and the

jury may well have inferred that the positive DNA match was in

reference to him.

¶ 35 Second, Young has failed to show any prejudice resulting from

this testimony. As noted by the district court, Young was already

tied to the scene based on evidence that his DNA was found on two

cigarette butts in the victim’s garage. See People v. Williams, 2012

COA 165, ¶ 23 (affirming denial of a request for mistrial where the

“statement was not substantially prejudicial because it was

cumulative of other admissible testimony”). Thus, we cannot say

that the testimony was so prejudicial that, in its absence, the jury

might have acquitted Young.

¶ 36 Accordingly, we conclude that the district court did not abuse

its discretion when it denied Young’s motion for a mistrial.

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V. Disposition

¶ 37 The judgment is affirmed.

JUDGE JOHNSON and JUDGE SCHOCK concur.

22CA1806 Peo v Young 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1806

Gilpin County District Court No. 22CR20

Honorable Todd L. Vriesman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

Arthur Robert Young,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE FOX

Johnson and Schock, JJ., concur

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

Announced September 12, 2024

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

The Law Office of Sean C. Thomson, LLC, Sean C. Thomson, Denver, Colorado,

for Defendant-Appellant

¶ 1 Defendant, Arthur Robert Young, appeals the judgment of