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
1
¶ 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
2
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.
1
After a
two-day trial, the jury convicted Aguirre. The district court
sentenced Aguirre to two years of supervised probation.
1
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.
3
¶ 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.
5
¶ 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
6
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
7
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
8
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.”
9
¶ 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
10
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
11
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,
12
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
13
afford evidence its maximum probative value and assume its
¶ 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
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
14
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.
15
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.”
16
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
17
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.,
Aguirre urges us to adopt out-of-state authority holding that such
jury instructions are improper. Because we have clear precedent
18
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
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.
