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<div><div><div><div id="pdf-container" style="width: 782px"> <div id="pf1" data-page-no="1"> <div><div> <div>22CA0705 Peo v Kondratishin 10-03-2024 </div> <div> </div> <div>COLORADO COURT OF APPEALS </div> <div> </div> <div> </div> <div>Court of Appeals No. 22CA0705 </div> <div>Adams County District Court No. 19CR5043 </div> <div>Honorable <span>Jeffrey Smith, Judge</span> </div> <div> </div> <div> </div> <div>The People of the State of Colorado, </div> <div> </div> <div>Plaintiff-Appellee, </div> <div> </div> <div>v. </div> <div> </div> <div>Sergey Victor Kondratishin, </div> <div> </div> <div>Defendant-Appellant. </div> <div> </div> <div> </div> <div>JUDGMENT AFFIRMED<span> </span> </div> <div> </div> <div>Division I </div> <div>Opinion by JUDGE <span>J. JONES</span> </div> <div>Lipinsky<span> and Sullivan, JJ., concur </span> </div> <div> </div> <div>NOT PUBLISHED PURSUANT TO C.A.R. 35(e) </div> <div>Announced October 3, 2024 </div> <div> </div> <div> </div> <div>Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General </div> <div>Fellow, Denver, Colorado, for Plaintiff<span>-Appellee </span> </div> <div> </div> <div>Megan A. Ring, Colorado State Public Defender, <span>Kelly A. Corcoran</span>, Deputy </div> <div>State Public Defender, Denver, Colorado, for Defendant-Appellant </div> <div> </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf2" data-page-no="2"> <div><div> <div>1 </div> <div> </div> <div>¶ 1<span> </span><span>Defendant, Sergey Victor Kondratishin, appeals the judgment<span></span> </span> </div> <div>of conviction entered on a jury verdict finding him guilty <span></span>of driving </div> <div>while ability impaired with three or more prior similar conviction<span></span>s, a </div> <div>class 4 felony. <span>See</span> § 42-4-1301(1)(b), C.R.S. 2024. We aff<span></span>irm. </div> <div>I.<span> <span>Background </span></span> </div> <div>¶ 2<span> </span><span>A police officer responded to a report of a suspicious vehicle. </span> </div> <div>When she arrived, she saw a black BMW with a single occupant <span>â</span> </div> <div>Kondratishin <span>in</span> <span>the driverâs seat</span>. As the officer got out of her pat<span></span>rol </div> <div>car, Kondratishin got out of the BMW, on the driverâs si<span></span>de. The </div> <div>BMW was parked on the street near the house in which he lived </div> <div>with his parents. Kondratishin leaned against the car. The officer </div> <div>observed that he had bloodshot, watery eyes; slurred speech; an<span></span>d </div> <div>smelled strongly of alcohol. Looking inside the car, the officer saw a </div> <div>six-pack containing four empty beer bottles on the front passenge<span></span>r </div> <div>side floorboard and a malt liquor bottle in the center console, next </div> <div>to the car keys. Based on these observations, what Kondratishin </div> <div>told the officer (discussed in more detail below), and <span></span>what the </div> <div>neighbor who had called police had reported, the officer asked </div> <div>Kondratishin to perform voluntary roadside maneuvers. He </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf3" data-page-no="3"> <div><div> <div>2 </div> <div> </div> <div>refused. He then equivocated, saying he would and then saying </div> <div>again that <span>he wouldnât. At that point, </span>the officer arrested him. </div> <div>¶ 3<span> </span><span>The People charged Kondratishin with one count of driving </span> </div> <div>under the influence with three or more prior similar convictions. </div> <div>See<span> § 42-4-1301(1)(a). A jury acquitted him of that charge b<span></span>ut </span> </div> <div>found him guilty of the analogous driving while ability impaired </div> <div>offense. </div> <div>II.<span> <span>Discussion </span></span> </div> <div>¶ 4<span> </span><span>Kondratishin contends on appeal that (1) insufficient evidence </span> </div> <div>supports the conviction; (2) the district court judge violated his <span></span>duty </div> <div>of impartiality; (3) the court made various errors in admitting </div> <div>evidence introduced by the prosecution; and (4) even if<span></span> none of </div> <div>these claimed errors require reversal independently, they do when </div> <div>considered cumulatively. We address and reject these contention<span></span>s </div> <div>in turn. </div> <div>A.<span> <span>Sufficiency of the Evidence </span></span> </div> <div>¶ 5<span> </span><span>Kondratishin argues that the only evidence that he drank </span> </div> <div>alcoholic beverages <span>before</span> he drove his car was his statement to t<span></span>he </div> <div>police officer on the scene, which wasnât trustworthy <span></span>enough for the </div> <div>jury to credit. We donât agree.<span> </span> </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf4" data-page-no="4"> <div><div> <div>3 </div> <div> </div> <div>1.<span> <span>Additional Background </span></span> </div> <div>¶ 6<span> </span><span>A roommate of the neighbor who had called the police testified </span> </div> <div>that, when he returned home from work at about 6:30 p.m., a black </div> <div>BMW was parked on the street in the space in which <span></span>he usually </div> <div>parked. A few minutes later, the roommates went outside to chec<span></span>k </div> <div>on the car<span>. T</span>he driver started the car, drove it a little way down the </div> <div>street, and reparked <span>it</span>. Thinking this was suspicious, one of the </div> <div>roommates called the police. </div> <div>¶ 7<span> </span><span>Officer Priscilla Duke arrived shortly after receiving a dispatch </span> </div> <div>call at 7:22 p.m. After Kondratishin got out of the BMW, Officer </div> <div>Duke saw that his eyes were glassy, bloodshot, and wat<span></span>ery. </div> <div>According to Officer Duke, h<span>e smelled âextremely stron</span><span>g</span><span>[ly]â of </span> </div> <div>alcohol. </div> <div>¶ 8<span> </span><span>Officer Duke told Kondratishin she was there responding to a </span> </div> <div>report âabout a vehicle b<span>eing in the area.</span><span>â<span> <span>He responded that he </span></span></span> </div> <div>had a bad day of work, and, after he parked, he was talking to </div> <div>someone on his phone when the neighbors came home. He di<span></span>dnât </div> <div>want to be rude (by parking in the space <span>in front of the neighborsâ </span> </div> <div>house), so he drove his car down the street and reparked it in f<span></span>ront </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf5" data-page-no="5"> <div><div> <div>4 </div> <div> </div> <div>of his house<span>. </span>(At this point, another officer arrived at the scene.) <span></span> </div> <div>Officer Duke then asked Kondratishin whether he had had anything </div> <div>to drink. He said he drank five beers. Kondratishinâs arg<span></span>ument on </div> <div>appeal focuses on the following testimony by Officer Duke: </div> <div>I asked him when he had those beers and he </div> <div>told me that he returned home. He lives with </div> <div>his parents and his parents donât like him </div> <div>drinking at home. They were not home. He </div> <div>went to his room and drank five beers. When </div> <div>he came out of his room, his parents were </div> <div>home. </div> <div>At that point, he went back and got the six-</div> <div>pack and took it to his vehicle. At that point, </div> <div>he stated that the residence he was parked in </div> <div>front of <span>â</span> <span>the parties came home and he didnât </span> </div> <div>want to be rude so he moved the vehicle down </div> <div>the street. </div> <div>¶ 9<span> <span>Kondratishin told Officer Duke he wasnât drinking in his <span></span>car. </span></span> </div> <div>He also told her he had âfour DUIs in the past.â Officer Duke then </div> <div>looked into the car and saw the six-pack container of beer </div> <div>containing four empty bottles, one unopened bottle, and an em<span></span>pty </div> <div>spot. She also saw an empty malt liquor bottle between the center </div> <div>console and the passenger seat. The car keys were next to t<span></span>hat </div> <div>bottle. </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf6" data-page-no="6"> <div><div> <div>5 </div> <div> </div> <div>¶ 10<span> </span><span>Officer Duke then asked Kondratishin to perform voluntary </span> </div> <div>roadside maneuvers. He asked âwhy he would need to take any </div> <div>tests because he did not drive.â (Officer Duke testified t<span></span>hat </div> <div>Kondratishin had just told her he did drive.) After Officer D<span></span>uke </div> <div>again told Kondratishin he didnât have to perform the man<span>euvers, </span> </div> <div>he said again that he âwasnât drinking in the car and did not driv<span></span>e.â </div> <div>He became argumentative. Officer Duke told him to turn a<span></span>round </div> <div>(she was going to arrest him), and as he did so, he said he wo<span></span>uld </div> <div>perform the maneuvers. He then turned back toward the <span></span>officer, </div> <div>started arguing with her again, and âasked why he had t<span></span>o do the </div> <div>test if he wasnât driving.â Officer Duke took that as a refusal t<span></span>o </div> <div>perform the maneuvers and arrested him. </div> <div>¶ 11<span> </span><span>After Officer Duke put Kondratishin in the back of her patrol </span> </div> <div>car, she told him about the express<span>ed</span> consent law and aske<span></span>d him </div> <div>whether he wanted to take a breath test or a blood te<span></span>st. He again </div> <div>said he didnât see why he needed to take a test and said that <span>once </span> </div> <div>more after Officer Duke explained the consequences to <span></span>him. Officer </div> <div>Duke deemed this a second refusal and took Kondratishin to a </div> <div>police station. </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf7" data-page-no="7"> <div> <img alt="" src="https://icbg.s3.amazonaws.com/media/MM9/Zgu/MM9ZguMTW/pwsU7Hj38Z0aT83wGmUtrM/47S7PRRijEBs%3D?AWSAccessKeyId=ASIA5PHC3MTPUCWG6ISE&Expires=1728853391&Signature=6Amne8qHufbcR3L5kGUTvF9XShU%3D&x-amz-security-token=IQoJb3JpZ2luX2VjEGwaCXVzLWVhc3QtMSJHMEUCICfG4TWbwHupBjaFlk%2FJrFiDACzakZf4PWcetzGyqFiCAiEA%2BXx85mosTO%2BSYT7bi1bSCeO9%2FxQ83a%2BC7HNbPtCthSUqugUIxf%2F%2F%2F%2F%2F%2F%2F%2F%2F%2FARAAGgw5MjYwNDEyMDM5MzUiDA4l5KQ6ChnvlfRYbiqOBUtb3zgtcy2xzDYFgIQjFY4wOIiW33KUr2bm013Wi9arVt6%2BBb7U7EmJQfhBFDdFUN4Ux0lmFGSniA4doAzjlrVh3%2F1rtVKr2KIQnr9%2BpSDv3n%2FUHpmk8x%2FntNK1QRpFavCQWMaenIfpSisyO%2B8bWgiJGOvTU0RDtAjkW9BGHS%2F9qbCA4jVGHJzMkEAOx56qaWuXCOcX8cq2Z2kPP4kPX1Rx%2BDTMsaYZQoQ93IzeRmYdoTFcHohO0hbAPsUzZI0PV%2BoG2v5s5SbeIY58GJCgWS2fTbN8t5X%2Fr7o5d%2FUdGMTMpcQeRac%2BG1EoEpAM74JtY9Bl1TS5LzmA%2FhWUjJRkWkpTHFEmwJ3bknC8LIyPJaj0DqUaAB%2FKzLkuaTAIt%2F07a557XK%2B6YARu5s9vr8uWdlmCLYB8Xp6Ostot5yh%2B0wBHPhadQHUtP5MQutnm3c8ZPyqfYHZlKatWk3GqyGU%2FOLiDKSnQW6D1%2B3TeEwL4IX3DasnRAxYHgwvRGqFaFRbXT1GwGFf%2BOlGGorZVjLHlbxedNRcNJ%2FbAISpuhkmYCiYy8OKll9cgRXcXivWUH%2BOqR3rdTJYEnHFuQFVCWjQBzizqDv9yC%2ByIRShjGoV8Jkg%2FTSlyUrY3bIGuqTDqlKYACaoyr3StC5%2BYfUtFMMIiAYsaHi4GvY8GWBldje%2FgcKHBeLXdJgoNlgwaahY%2B9Zqkt2%2B1RaITQZC5rg%2B4ummyk36vMs%2BW27Uw9x9mnQB94%2BUMQ%2B7OaytQicW5DQMAVGIuOLp8wXPeZos7J8VSHoJWUfxchAxpDXIQZnudpupey2%2BI2dB0L4HGbry7FukaE8qmdklruerATWbyMCRixwGyuYsT5RG68WXhzxu%2BkdNWCTCHvrC4BjqxAXBm6yuyonW%2BF0FHRliYkn6TCVElA2RnSE%2BWd9GIXUmnG9nzIf2A%2BwEf4bTr5PPJWjYmW9BE9mcrj4Cz8ZzKUl3UJNMAjmik%2FvvwzNeaA%2F%2FFDYzGNks9iyK%2FjaAvfZrHkJeki46KUReJwKwyJDT7V0fQD5XFxCfIPqIWlkjn8lNBr0A3TPsDV1PpmWsKyK7IwofNL%2Bw35kuhoBaiCL3Um1wkXuLfbheRrKYoxD2S7NByHw%3D%3D"><div> <div>6 </div> <div> </div> <div>¶ 12<span> <span>At trial, following Officer Dukeâs testimony and the close <span></span>of the </span></span> </div> <div>prosecutionâs case, defense counsel moved for a judgment of<span></span> </div> <div>acquittal, arguing that âthe prosecution hasnât shown that<span></span> there </div> <div>was [sic] reasonable grounds to make contact with [Kondratishin] <span>or </span> </div> <div>ask him for a test or that he was in actual physical control o<span></span>r </div> <div>driving the vehicle.â</div> </div> <div><div>1</div></div> <div> <div> <span>The prosecutor responded, as now relevant, </span> </div> <div>In terms of driving, thereâs an admission from </div> <div>the defendant. [The neighbor] saw the black </div> <div>BMW drive down the street. It was the same </div> <div>BMW that Officer Duke made contact </div> <div>with. . . .<span> </span>Upon contact, [the officer] noted an </div> <div>extremely strong odor of an alcoholic beverage, </div> <div>slurred speech, and unsteady balance in terms </div> <div>of leaning against the car and bloodshot </div> <div>watery eyes. The defendant also stated that he </div> <div>drank five beers and he took those five beers </div> <div>out of his house and into his car where he saw </div> <div>the neighbor looking at him so he drove down </div> <div>the street. </div> <div>The court denied defense counselâs motion, reasoning <span></span>that although </div> <div>the chronology âwasnât terribly clear,â the jury could reason<span></span>ably </div> <div>infer based on the evidence (which the court summarized) that<span></span> </div> <div>Kondratishin reparked his car after drinking in his house.<span> </span> </div> <div> </div> </div> <div><div>1</div></div> <div> <div> D<span>efense counsel didnât challenge the sufficiency of the eviden<span></span>ce on </span> </div> <div>the ground Kondratishin now argues on appeal. </div> </div> <a href="#pf7" data-dest-detail='[7,"XYZ",69,115,null]'><div style="border-style:none;position:absolute;left:261.561111px;bottom:668.022222px;width:10.080000px;height:32.860000px;background-color:rgba(255,255,255,0.000001);"></div></a> </div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf8" data-page-no="8"> <div><div> <div>7 </div> <div> </div> <div>2.<span> <span>Standard of Review and Applicable Law </span></span> </div> <div>¶ 13<span> </span><span>It is often said that we review de novo a challenge to the </span> </div> <div>sufficiency of the evidence to support a conviction. <span>E.g.</span><span>,</span><span> McCoy v. </span> </div> <div>People<span>,
2019 CO 44, ¶ <span>19. But that doesnât mean we sit as a </span></span> </div> <div>thirteenth juror, disregarding the fact of a guilty verdict deli<span></span>vered by </div> <div>a jury of twelve. <span>Thomas v. People</span>,
2021 CO 84, ¶ 10.<span> </span>Rather, it </div> <div>means that we review the record de novo to determine wheth<span></span>er the </div> <div>evidence presented is sufficient in both quantity and quality to </div> <div>support a conclusion by reasonable jurors that the defendant<span></span> is </div> <div>guilty of the charge beyond a reasonable doubt. <span>Id.</span><span> </span>And we do so </div> <div>by applying <span>principles that ascribe weight to the jurorsâ </span> </div> <div>determination: (1) we donât second guess any finding<span></span>s supported by </div> <div>the evidence; (2) we view the evidence in the light most favora<span></span>ble to </div> <div>the verdict; and (3) we give the prosecution the benefit <span></span>of every </div> <div>reasonable and relevant inference that may fairly be drawn from t<span></span>he </div> <div>evidence. <span>Id.</span> </div> <div>¶ 14<span> <span>Kondratishinâs challenge to the <span>sufficiency of the evidence is </span></span></span> </div> <div>an atypically specific one: he says that no independent evidenc<span></span>e </div> <div>establish<span>ed</span><span> the trustworthiness of his confession to Officer Duke </span> </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf9" data-page-no="9"> <div> <img alt="" src="https://icbg.s3.amazonaws.com/media/MM9/Zgu/MM9ZguMTW/pwsU7Hj38Z0aT83wGmUtrM/47S7PRRijEBs%3D?AWSAccessKeyId=ASIA5PHC3MTPUCWG6ISE&Expires=1728853391&Signature=6Amne8qHufbcR3L5kGUTvF9XShU%3D&x-amz-security-token=IQoJb3JpZ2luX2VjEGwaCXVzLWVhc3QtMSJHMEUCICfG4TWbwHupBjaFlk%2FJrFiDACzakZf4PWcetzGyqFiCAiEA%2BXx85mosTO%2BSYT7bi1bSCeO9%2FxQ83a%2BC7HNbPtCthSUqugUIxf%2F%2F%2F%2F%2F%2F%2F%2F%2F%2FARAAGgw5MjYwNDEyMDM5MzUiDA4l5KQ6ChnvlfRYbiqOBUtb3zgtcy2xzDYFgIQjFY4wOIiW33KUr2bm013Wi9arVt6%2BBb7U7EmJQfhBFDdFUN4Ux0lmFGSniA4doAzjlrVh3%2F1rtVKr2KIQnr9%2BpSDv3n%2FUHpmk8x%2FntNK1QRpFavCQWMaenIfpSisyO%2B8bWgiJGOvTU0RDtAjkW9BGHS%2F9qbCA4jVGHJzMkEAOx56qaWuXCOcX8cq2Z2kPP4kPX1Rx%2BDTMsaYZQoQ93IzeRmYdoTFcHohO0hbAPsUzZI0PV%2BoG2v5s5SbeIY58GJCgWS2fTbN8t5X%2Fr7o5d%2FUdGMTMpcQeRac%2BG1EoEpAM74JtY9Bl1TS5LzmA%2FhWUjJRkWkpTHFEmwJ3bknC8LIyPJaj0DqUaAB%2FKzLkuaTAIt%2F07a557XK%2B6YARu5s9vr8uWdlmCLYB8Xp6Ostot5yh%2B0wBHPhadQHUtP5MQutnm3c8ZPyqfYHZlKatWk3GqyGU%2FOLiDKSnQW6D1%2B3TeEwL4IX3DasnRAxYHgwvRGqFaFRbXT1GwGFf%2BOlGGorZVjLHlbxedNRcNJ%2FbAISpuhkmYCiYy8OKll9cgRXcXivWUH%2BOqR3rdTJYEnHFuQFVCWjQBzizqDv9yC%2ByIRShjGoV8Jkg%2FTSlyUrY3bIGuqTDqlKYACaoyr3StC5%2BYfUtFMMIiAYsaHi4GvY8GWBldje%2FgcKHBeLXdJgoNlgwaahY%2B9Zqkt2%2B1RaITQZC5rg%2B4ummyk36vMs%2BW27Uw9x9mnQB94%2BUMQ%2B7OaytQicW5DQMAVGIuOLp8wXPeZos7J8VSHoJWUfxchAxpDXIQZnudpupey2%2BI2dB0L4HGbry7FukaE8qmdklruerATWbyMCRixwGyuYsT5RG68WXhzxu%2BkdNWCTCHvrC4BjqxAXBm6yuyonW%2BF0FHRliYkn6TCVElA2RnSE%2BWd9GIXUmnG9nzIf2A%2BwEf4bTr5PPJWjYmW9BE9mcrj4Cz8ZzKUl3UJNMAjmik%2FvvwzNeaA%2F%2FFDYzGNks9iyK%2FjaAvfZrHkJeki46KUReJwKwyJDT7V0fQD5XFxCfIPqIWlkjn8lNBr0A3TPsDV1PpmWsKyK7IwofNL%2Bw35kuhoBaiCL3Um1wkXuLfbheRrKYoxD2S7NByHw%3D%3D"><div> <div>8 </div> <div> </div> <div>that he drank five beers <span>before</span> he drove his car from one parking </div> <div>spot to the other.</div> </div> <div><div>2</div></div> <div> <div> <span>He argues that we must reverse his conviction </span> </div> <div>because such evidence is required <span>by the Colorado Supreme Co<span></span>urtâs </span> </div> <div>decision in <span>People v. LaRosa</span>,
2013 CO 2; independent evidence is </div> <div>lacking in this case; and his confession is the only evidence </div> <div>supporting the element of the offense that he drove while impai<span></span>red, </div> <div>see<span> § 42-4-1303(1)(b). </span> </div> <div>¶ 15<span> </span><span>I<span>n <span>LaRosa</span><span>, the court adopted the so-<span>called âtrustworthiness </span></span></span></span> </div> <div>standard,â under which the prosecution must present<span></span> evidence </div> <div>corroborating the trustworthiness or reliability of the defen<span></span>dantâs </div> <div>confession when that confession is the only evidence of <span></span>a crime<span>. </span> </div> <div>LaRosa<span>, ¶¶ 21, 35, 38, 40. Such corroboration may <span></span>come from </span> </div> <div>evidence of facts corroborating facts in the confession,<span></span> facts </div> <div>establishing the crime that corroborate facts in the confession, o<span></span>r </div> <div>facts concerning the circumstances of the confession<span></span> that show that </div> <div>the confession is trustworthy or reliable. <span>Id.</span> at ¶ <span>41. Indeed, <span></span>âthe </span> </div> <div>corroborating facts may be of <span>any sort whatever</span>, provided only that </div> <div> </div> </div> <div><div>2</div></div> <div> <div> To the extent Kondratishin contends that his statement to Officer </div> <div>Burke canât be understood as such a confession, we reject that<span></span> </div> <div>contention. </div> </div> <a href="#pf9" data-dest-detail='[9,"XYZ",69,132,null]'><div style="border-style:none;position:absolute;left:239.736667px;bottom:835.986111px;width:10.080000px;height:32.870000px;background-color:rgba(255,255,255,0.000001);"></div></a> </div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pfa" data-page-no="a"> <div><div> <div>9 </div> <div> </div> <div>they tend to produce a confidence in the <span>truth of the confessi<span></span>on.â </span> </div> <div>Id.<span> at ¶ <span>40 </span>(alteration omitted) (quoting 7 <span>Wigmore on Evidence</span> <span>§ </span></span> </div> <div>2071, at 511 (Chadbourn rev. 1978)). </div> <div>3.<span> <span>Analysis </span></span> </div> <div>¶ 16<span> </span><span>Several evidentiary facts, including the following, corroborate </span> </div> <div>the trustworthiness of Kondratishinâs confession<span> when viewed in t<span></span>he </span> </div> <div>light most favorable to the verdict: </div> <div>â¢<span> <span>Kondratishin showed signs of intoxication when Officer </span></span> </div> <div>Duke contacted him. </div> <div>â¢<span> <span>Officer Duke found a six-pack container on the floor of the </span></span> </div> <div>car with four empty bottles. Another empty bottle was </div> <div>tucked between the console and the passenger seat. </div> <div>â¢<span> <span>Kondratishin admitted he drank five beers. (He doesnât </span></span> </div> <div>challenge this aspect of his statement to Officer Duke.) </div> <div>â¢<span> <span>Witnesses saw Kondratishin drive the car not long before </span></span> </div> <div>the officers arrived. </div> <div>¶ 17<span> <span>These facts fit Kondratishinâs confession that he drank five </span></span> </div> <div>be<span>ers before he reparked the car. Contrary to his <span></span>suggestion, the </span> </div> <div>facts need not definitively support a confession to render that </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pfb" data-page-no="b"> <div><div> <div>10 </div> <div> </div> <div>confession sufficiently reliable; it is enough that they tend to </div> <div>produce confidence in the reliability of the confession. <span>See i<span>d.</span></span> </div> <div>¶ 18<span> </span><span>We therefore conclude that the evidence is sufficient to </span> </div> <div>support the juryâs verdict. <span>Cf. State v. Harris<span>,
575 A.2d 22<span></span>3, 227 </span></span> </div> <div>(Conn. 1990) (evidence that the defendant was alongside his </div> <div>overturned car, alone on a deserted road, in the early<span></span> hours, with </div> <div>fresh injuries, and smelling of intoxicating liquor sufficiently </div> <div>supported the defendantâs confession that he had been drinking </div> <div>and had driven the car); <span>State v. Ruiz</span>, No. A-1-<span>CA</span>-40201, 2023 <span>WL</span> </div> <div>7131326, at *1-2 (N.M. Ct. App. Oct. 30, 2023) (unpublished </div> <div>memorandum opinion) (evidence that the defendant was within<span></span> </div> <div>armâs reach of his truck when contacted by police in front <span></span>of his </div> <div>house, the defendant showed signs of intoxication, the <span>truckâs </span>ho<span></span>od </div> <div>was warm to the touch, a half-<span>empty beer bottle was in the t<span></span>ruckâs </span> </div> <div>center console, a<span>nd the defendantâs mother believed he had be<span></span>en </span> </div> <div>drinking while driving supported the trustworthiness <span></span>of the </div> <div>defendantâs statement to the officer that he had been drinking<span></span> beer </div> <div>while driving); <span>State v. Owelicio</span>,
263 P.3d 305, 311-12 (N.M. Ct.<span></span> </div> <div>App. 2011) (evidence that the defendant was in the car, she and </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pfc" data-page-no="c"> <div><div> <div>11 </div> <div> </div> <div>another person were the only people near the car, and <span></span>the other </div> <div>person strongly denied driving the car supported the </div> <div>trustworthiness of the defendantâs statement that she drove t<span></span>he car </div> <div>after drinking); <span>Commonwealth v. Rodriguez</span><span>, </span>No. 50 MDA 2023<span>, </span> </div> <div>
2024 WL 797396, at <span>*1</span>-3 (Pa. Super. Ct. Feb. 27, 2024) </div> <div>(unpublished opinion) (evidence that an officer saw the defen<span></span>dant </div> <div>visibly intoxicated, with injuries, in the middle of the night<span></span>, next to </div> <div>a car that had crashed into a wall and pole sufficiently corro<span></span>borated </div> <div>the <span>defendantâs statements to an officer that he had âcrashe<span></span>dâ and </span> </div> <div>had been drinking). </div> <div>B.<span> <span>Judicial Bias </span></span> </div> <div>¶ 19<span> </span><span>Kondratishin next contends that the district court judge </span> </div> <div>deprived him of his due process right to a fair and impartial judge </div> <div>by telling the prosecution how it could present evidence p<span></span>roving his </div> <div>prior convictions. We disagree. </div> <div>1.<span> <span>Additional Background </span></span> </div> <div>¶ 20<span> </span><span>After the court ruled that prior convictions were an element of </span> </div> <div>the charged offense, the court and counsel discussed how ce<span></span>rtified </div> <div>Department of Motor Vehicles (DMV) records showing those p<span></span>rior </div> <div>convictions could be admitted into evidence. In short, <span></span>the court </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pfd" data-page-no="d"> <div><div> <div>12 </div> <div> </div> <div>said that it would âconditionally admit the documents su<span></span>bject to </div> <div>being tied up later.â<span> </span> </div> <div>¶ 21<span> </span><span>During the trial, Officer Duke testified that Kondratishin <span></span>had </span> </div> <div>told him he had four prior alcohol-related driving offenses. She als<span></span>o </div> <div>testified as to various types of information identifying Kond<span></span>ratishin </div> <div>that she learned during the booking process. The prosecutor then </div> <div>asked for a bench conference to discuss admitting the DMV records. <span></span> </div> <div>After the court took a recess and reviewed the records, it <span></span>noted that </div> <div>while the records showed a date of birth, Kondratishinâs date <span></span>of </div> <div>birth hadnât been independently establi<span>shed. The court sai<span></span>d the </span> </div> <div>records wouldnât be admitted âuntil we tie that <span></span>up.â<span> </span> </div> <div>¶ 22<span> </span><span>Officer Duke testified regarding <span>Kondratishinâs date of birth</span><span>, </span></span> </div> <div>which she had learned during the booking process. The prosecutor </div> <div>then moved to admit the DMV records into evidence. <span></span> Defense </div> <div>counsel said she didnât have any objection. <span>(Indeed, all of this </span> </div> <div>occurred without any objection by defense counsel.)<span> </span>The court </div> <div>admitted the records, and it instructed the jury on the limited </div> <div>purpose for which the records could be considered. </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pfe" data-page-no="e"> <div><div> <div>13 </div> <div> </div> <div>2.<span> <span>Standard of Review </span></span> </div> <div>¶ 23<span> <span>We will assume that we review Kondratishinâs contention t<span></span>hat </span></span> </div> <div>the judge exhibited bias against him de novo. <span>See In re Estat<span></span>e of </span> </div> <div>Elliott<span>,
993 P.2d 474, 481 (Colo. 2000). The parties <span></span>disagree on the </span> </div> <div>test for determining whether any error requires reversal: t<span></span>he People, </div> <div>characterizing the issue as an evidentiary one, argue for plain <span></span>error; </div> <div>Kondratishin, maintaining that the issue is one of actual bias, </div> <div>argues for structural error. We donât need to resolve t<span></span>hat dispute<span>, </span> </div> <div>however, given our determination that th<span>e court didnât demonstrate </span> </div> <div>actual bias against Kondratishin. </div> <div>3.<span> <span>Analysis </span></span> </div> <div>¶ 24<span> </span><span>Relying primarily on <span>People v. Martinez</span>,
523 P.2d 120(Colo. </span> </div> <div>1974), Kondratishin argues that the judge âassumed the rol<span></span>e of an </div> <div>advocateâ by explaining how the DMV records could be admit<span></span>ted </div> <div>into evidence. But this case isnât anything like <span>Martinez</span><span>. <span></span>In that </span> </div> <div>case<span>, during a pretrial suppression motion hearing,<span></span> the judge </span> </div> <div>moved sua sponte for the admission of certain evidence, calle<span></span>d </div> <div>witnesses for the prosecution, examined the witnesses, and c<span></span>ross-</div> <div>examined defense witnesses. <span>Id.</span> at 120-21. The supreme co<span></span>urt </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pff" data-page-no="f"> <div><div> <div>14 </div> <div> </div> <div>held that the judge had improperly taken on the role of the <span></span>district </div> <div>attorney, who had failed to appear. <span>Id.</span> </div> <div>¶ 25<span> </span><span>In this case, by contrast, the court merely exercised its </span> </div> <div>discretionary authority over the presentation of evidence, explaining<span></span> </div> <div>to counsel for both sides how certain evidence could <span></span>be admitted. </div> <div>Cf. People v. Adler<span>,
629 P.2d 569, 573-74 (Colo. 1981) (though the </span> </div> <div>judgeâs indication that the prosecution hadnât yet presented </div> <div>sufficient evidence of value in <span>a </span>theft prosecution may have been </div> <div>âill<span>-</span><span>advised,â the judge didnât breach the standard of <span></span>impartiality); </span> </div> <div>People v. Acosta<span>,
2014 COA 82, ¶¶ <span>92<span>-</span></span><span>99 (judgeâs stat</span>ements and </span> </div> <div>evidentiary rulings suggesting how the prosecutor might secure </div> <div>admission of certain testimony didnât violate the judgeâs duty <span></span>of </div> <div>impartiality). Therefore, there was no violation of Kondrat<span></span>ishinâs </div> <div>right to an impartial judge. </div> <div>C.<span> <span>Evidentiary Challenges </span></span> </div> <div>¶ 26<span> </span><span>Kondratishin contends that the court erred by allowing Of<span></span>ficer </span> </div> <div>Du<span>ke to testify as an expert, repeat hearsay, and give irrelevant </span> </div> <div>testimony<span>. We donât see any reversible error.<span> </span></span> </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf10" data-page-no="10"> <div><div> <div>15 </div> <div> </div> <div>1.<span> <span>Standard of Review </span></span> </div> <div>¶ 27<span> <span>All of Kondratishinâs arguments challenge the courtâs f<span></span>ailure to </span></span> </div> <div>act on evidence proffered by the prosecution. These <span></span>challenges </div> <div>implicate the courtâs discretion to admit evidence<span>, and we review </span> </div> <div>them for an abuse of that discretion. <span>Venalonzo v. People</span>, 2017 CO </div> <div>9, ¶ 15 (whether the court erred by admitting testimony as lay<span>, </span> </div> <div>rather than expert, testimony); <span>People v. Heredia-Cobos</span>, 2017 COA </div> <div>130, ¶ 6. A court abuses its discretion in this context wh<span></span>en its </div> <div>ruling is manifestly arbitrary, unreasonable, or unfair or base<span></span>d on a </div> <div>misunderstanding or misapplication of the law. <span>Heredia-<span>Cobos</span></span>, ¶ <span>6.</span> </div> <div>¶ 28<span> <span>Because defense counsel didnât object to any of the evidence at </span></span> </div> <div>issue, we determine whether any error requires reversal und<span></span>er the </div> <div>plain error test. <span>Hagos v. People</span>,
2012 CO 63, ¶ 14; <span>People v. Mi<span></span>ller<span>, </span></span> </div> <div>
2024 COA 66, ¶ 41. Plain error is error that is obvious an<span></span>d that so </div> <div>undermined the fundamental fairness of the trial as to <span></span>cast serious </div> <div>doubt on the reliability of the judgment of conviction. <span>Ha<span></span>gos<span>, ¶ <span>14.</span> </span></span> </div> <div>2.<span> <span>Analysis </span></span> </div> <div>¶ 29<span> </span><span>Kondratishin argues that, <span>even though Officer Duke hadnât </span></span> </div> <div>been offered as an expert witness at trial, and the prosecution </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf11" data-page-no="11"> <div><div> <div>16 </div> <div> </div> <div>hadnât disclosed her as such<span> before trial, she gave the following </span> </div> <div>expert testimony: </div> <div>â¢<span> <span>Because Kondratishin got out of his car when she got<span></span> out of </span></span> </div> <div>hers, she deduced, based on her experience, that âheâs </div> <div>trying to hide something.â<span> </span> </div> <div>â¢<span> <span>By leaning against his car for balance when he got out of it<span></span>, </span></span> </div> <div>Kondratishin behaved abnormally, in her experience. </div> <div>â¢<span> <span>She arrested Kondratishin, which, given earlier testimony </span></span> </div> <div>that she doesnât always arrest persons she initially believes </div> <div>may have been drinking and driving, implied, according <span></span>to </div> <div>Kondratishin, that he had been driving under the influence. </div> <div>(Kondratishin also argues that this testimony was irrelevant </div> <div>âscreeningâ testimony.)<span> </span> </div> <div>â¢<span> <span>Kondratishin has a âstate ID numberâ created as a result of </span></span> </div> <div>a prior criminal conviction, and she determined that </div> <div>Kondratishin had four prior convictions based on the </div> <div>criminal history records.<span> </span>(Kondratishin also argues that </div> <div>this testimony was hearsay and, as to the four prior </div> <div>convictions, âa legal conclusion on an ultimate issue.â)<span> </span> </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf12" data-page-no="12"> <div><div> <div>17 </div> <div> </div> <div>¶ 30<span> <span>Officer Dukeâs testimony that leaning against the car indicated </span></span> </div> <div>possible intoxication and that she determined Kondratishin <span></span>had </div> <div>driv<span>en</span><span> <span>while intoxicated didnât constitute expert testimony.<span></span> At </span></span> </div> <div>bottom, this testimony was premised on observations from which </div> <div>any ordinary person could have reached the same conclusi<span></span>on based </div> <div>on such a personâs experience and knowledge. <span>See People v. </span> </div> <div>Kubuu<span>gu</span><span>,
2019 CO 9, ¶¶ 11, 13; <span>People v. Russell</span>, 2014 CO<span></span>A 21M, </span> </div> <div>¶¶<span> <span>21</span>-26 (police officer could testify as a lay witness that<span></span> the </span> </div> <div>defendant appeared to be under the influence of </div> <div>methamphetamine), <span>affâd</span>,
2017 CO 3.<span> </span>Likewise, her testimony </div> <div>about the ID numbers and prior convictions wasnât e<span></span>xpert </div> <div>testimony because it was based only on what the documents plainly </div> <div>said. </div> <div>¶ 31<span> <span>The officerâs testimony that she though<span>t Kondratishin might be </span></span></span> </div> <div>hiding something because he got out of his car is, perhaps, an<span></span>other </div> <div>story. But any error in allowing that testimony isnât plain be<span></span>cause </div> <div>it isnât obvious that the testimony was expert testimony<span>, and we </span> </div> <div>arenât persuaded that any error casts serious doubt on the </div> <div>reliability of the judgment of conviction. Had Office<span></span>r Duke been </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf13" data-page-no="13"> <div><div> <div>18 </div> <div> </div> <div>tendered as an expert, the court wouldnât<span> have abused its discreti<span></span>on </span> </div> <div>by qualifying her as such. Defense counsel was able to cross-</div> <div>examine the officer on the point, and Kondratishin doesnât as<span></span>sert </div> <div>what his counsel would have done differently had the co<span></span>urt </div> <div>qualified the officer as an expert. There was other substantial </div> <div>evidence of Kondratishinâs impairment. And Kondratishinâs d<span></span>efense </div> <div>wasnât that he hadnât been drinking but that he hadnât been </div> <div>drinking before he drove. </div> <div>¶ 32<span> </span><span>For similar reasons, we conclude that allowing Officer Du<span></span>ke to </span> </div> <div>testify about Kondratishinâs state ID number <span>and prior convicti<span></span>ons, </span> </div> <div>even if hearsay or an improper opinion as to his guilt of the <span></span>prior </div> <div>offenses, <span>wasnât plain error. That testimony was only offere<span></span>d as </span> </div> <div>part of the prosecutionâs effort to tie Kondratishin to t<span></span>he DMV </div> <div>records. Substantial other evidence tied him to those records, </div> <div>which were properly admitted, <span>and he doesnât contend othe<span></span>rwise. </span> </div> <div>See People v. Stone<span>,
2021 COA 104, ¶ 30 (</span>cert. granted<span> Oct. 17, </span> </div> <div>2022); <span>People v. Dominguez</span>,
2019 COA 78, ¶¶ 42-<span>51.</span> </div> <div>¶ 33<span> <span>Lastly, it is questionable whether Officer Dukeâs testimony </span></span> </div> <div>that she arrested Kondratishin was a commentary on </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf14" data-page-no="14"> <div><div> <div>19 </div> <div> </div> <div>Kondratishinâs guilt, even considered in light of her earlier </div> <div>testimony that she doesnât always arrest drivers she initially </div> <div>suspects of drinking and driving. Therefore, any error in allowing </div> <div>that testimony arguably wasnât obvious. But even if there was </div> <div>obvious error, it doesnât cast serious doubt on the reliability <span></span>of the </div> <div>judgment of conviction. Whenever someone is charged wit<span></span>h a </div> <div>crime, a jury obviously knows that the state believes the person to </div> <div>be guilty. And Kondratishin cites no case for the proposition that<span></span> </div> <div>the fact of the charge <span>â</span> or even of an arrest <span>â</span> is unduly </div> <div>prejudicial. Counsel thoroughly examined (and cross-examined) </div> <div>Officer Duke on the circumstances leading up to Kondratishin<span></span>âs </div> <div>arrest, and the court instructed the jury that the charge it<span></span>s<span>elf isnât </span> </div> <div>evidence that Kondratishin committed any crime. We note, as well, </div> <div>that the jury didnât find Kondratishin guilty of driving under the </div> <div>influence, indicating that it carefully considered the evidence <span></span>of </div> <div>Kondratishinâs level of intoxication.<span> </span> </div> <div>D.<span> <span>Cumulative Error </span></span> </div> <div>¶ 34<span> </span><span>We have identified three possible errors in the admission of </span> </div> <div>evidence. We arenât persuaded that, considered cumulatively, <span></span>these </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> <div id="pf15" data-page-no="15"> <div><div> <div>20 </div> <div> </div> <div>errors deprived Kondratishin of his right to a fair trial. <span>See Howa<span></span>rd-</span> </div> <div>Walker v. People<span>,
2019 CO 69, ¶ 24. </span> </div> <div>III.<span> <span>Disposition </span></span> </div> <div>¶ 35<span> </span><span>The judgment of conviction is affirmed. </span> </div> <div>JUDGE LIPINSKY and JUDGE SULLIVAN concur. </div> </div></div> <div data-data='{"ctm":[1.277778,0.000000,0.000000,1.277778,0.000000,0.000000]}'></div> </div> </div></div></div></div>
Document Info
Docket Number: 22CA0705
Filed Date: 10/3/2024
Precedential Status: Precedential
Modified Date: 10/13/2024