People v. Schreiber , 2009 Colo. App. LEXIS 1780 ( 2009 )

Opinion by

Judge WEBB.

We affirm the judgment of conviction of defendant, Timothy E. Schreiber, entered on a jury verdict finding him guilty, as relevant here, of felony indecent exposure, see section 18-7-802(1), (4), C.R.8.2009.

Because Schreiber's assertions of eviden-tiary error do not warrant publication under CAR. 35(f), we begin with the Attorney General's contention on cross-appeal that the trial court erred by requiring the prosecution to prove Schreiber's prior indecent exposure convictions to the jury beyond a reasonable doubt. This question is unresolved in Colorado. We disapprove of the trial court's ruling because the statute is a sentence enhancer and prior convictions are exempt from the jury requirement imposed by Blakely v. Washington, 542 U.S. 296, 308, 124 S.Ct. 2581, 159 L.Ed.2d 403 (2004).

I. Background

Schreiber was charged with felony indecent exposure under section 18-7-302(4), based on five prior convictions. Before trial, the court ruled that those convictions constituted elements of felony indecent exposure, which had to be proven to the jury beyond a reasonable doubt. As a consequence of the indictment, Schreiber enjoyed all procedural protections attendant to a felony prosecution and trial.

According to the prosecution's evidence, Schreiber exposed his genitalia while masturbating in front of an employee at a laundromat. During the guilt phase, the prosecution offered evidence that Schreiber had previously exposed himself as evidence of other sexual acts under section 16-10-801(1), C.R.S. 2009, but not that he had been convicted of such offenses. After Schreiber was found guilty of the substantive offenses, the prosecutor presented evidence of his five prior convictions, and the jury found beyond a reasonable doubt that he had five prior convictions.

II. Section 18-7-302(4)

Whether a statutory provision is a sentence enhancer or a substantive element of the offense presents a legal question that we review de novo. See People v. Hogan, 114 P.3d 42, 57 (Colo.App.2004). We ask whether "its proof, while raising the felony level of an offense, is not necessarily required to secure a conviction." People v. Leske, 957 P.2d 1080, 1089 (Colo.1998).

Section 18-7-302(1) provides, "[a]) person commits indecent exposure if he knowingly exposes his genitals to the view of any person under cireumstances in which such conduct is likely to cause affront or alarm to the other person." Under section 18-7-802(4), "indecent exposure is a class 6 felony if the violation is committed subsequent to two prior convictions of a violation of this section or of a violation of a comparable offense...." Otherwise, it is a class 1 misdemeanor. § 18-7-302(2)(b).

We conclude that section 18-7-802(4) establishes a sentence enhancer, not a substantive offense, because: (1) a defendant may be convicted of the underlying offense without any proof regarding the sentence enhancer; and (2) the sentence enhancement provision only increases the potential punishment. Vega v. People, 898 P.2d 107, 112 (Colo.1995) (§ 18-18-107); see People v. Whitley, 998 P.2d 31, 34 (Colo.App.1999) (§ 18-18-405(@2)(a)(I1)).

We further conclude that the court decides this sentence enhancer because, under Apprendi v. New Jersey, 580 U.S. 466, 490, 120 S.Ct. 2848, 147 LEd.2d 485 (2000), and Blakely, 542 U.S. at 308, 124 S.Ct. 25831, a defendant "has no constitutional right to a jury trial to determine whether he has a prior conviction. Instead, that is an inquiry and finding that the trial judge is entitled to make." People v. French, 165 P.3d 886, 841 (Colo.App.2007); see People v. Fiske, 194 P.3d 495, 496 (Colo.App.2008) (citing People v. Huber, 189 P.8d 628, 682-33 (Colo.2006)) ("A prior conviction, even if the conviction is for a misdemeanor, is a Blakely-exempt fact.").

We reject Schreiber's argument-based on Justice Thomas' concurring opinion in Ap-prendi and Justice Scalia's dissent in Almen-daresz-Torres v. United States, 528 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 850 (1998) (basis for the prior conviction exceeption)-that seetion 18-7-302(4) should not be read as a sentence enhancer because increasing a misdemeanor to a felony subjects a defendant to serious collateral consequences. Such consequences include being prevented from voting or registering to vote, see section 1-2-1083(4), and being potentially subject to sentencing as a habitual criminal, see section 18-1.3-801(2), C.R.8.2009.

The majority of other state courts to have addressed similar collateral consequences arguments still follow Apprendi and Almenda-rez-Torres. See State v. Palmer, 189 P.3d 69, 76 (Utah Ct.App.2008) (rejecting argument that prior DUI convictions were elements because they increased sentence from a misdemeanor range to a felony range) (collecting cases), offd, 220 P.B3d 1198 (Utah2009); but see United States v. Rodriguez-Gonzales, 358 F.3d 1156, 1160 (Oth Cir. 2004) ("The existence of a prior conviction . substantively transforms a second conviction under the statute from a misdemean- or to a felony. A prior conviction is therefore more than a sentencing factor...."). Moreover, while acknowledging "some doubt about the continued validity of the prior conviction exception," our supreme court has held "that it remains valid after Blakely." Lopez v. People, 118 P.8d 718, 728 (Colo. 2005); see Huber, 189 P.8d at 681 (declining to revisit question).

Accordingly, we disapprove of the trial court's ruling requiring the prosecution to prove Schreiber's prior convictions under section 18-7-302(4) to the jury rather than to the court. 'We further conclude that because section 18-7-802(4) does not establish the burden of proof, in a trial to the court the prosecution need only prove the existence of prior conviction facts by a preponderance of the evidence. See People v. Lacey, 728 P.2d 111, 114 (Colo.1986); Whitley, 998 P.2d at 34. However, we express no opinion whether a defendant who was denied the procedural protections required in felony trials could challenge elevation of his conviction to felony status at the time of sentencing on this basis.

III. Schreiber's Contentions

We reject Schreiber's evidentiary contentions based on the trial court's broad discretion in such rulings. See Yusem v. People, 210 P.3d 458, 468 (Colo.2009).

A. Evidence that Schreiber had Previously Exposed Himself

Under section 16-10-801(1), "evidence of other sexual acts is typically relevant and highly probative, and it is expected that normally the probative value of such evidence will outweigh any danger of unfair prejudice, even when incidents are remote from one another in time." The prosecution must also satisfy the four-part test in People v. Spoto, 795 P.2d 1814, 1318 (Colo.1990). People v. Underwood, 58 P.3d 765, 769 (Colo. App.2002).

Here, the record supports the trial court's findings that:

® Evidence Schreiber had exposed himself to women on other occasions was relevant to the material issue of whether Schreiber knowingly, as opposed to accidentally, exposed himself in this case;

® Such evidence made it more probable that he was aware exposure was likely to cause affront or alarm to the victim;

@ Thus, the evidence was relevant independent of the intermediate inference that defendant was a person of bad character; and

® Under CRE 403, the prejudicial effect of this evidence did not exceed its probative value, People v. Salas, 902 P.2d 398, 401 (Colo.App.1994) ("Only prejudice which suggests a decision made on an improper basis, such as the jury's bias, sympathy, anger, or shock, requires the exelusion of relevant evidence under CRE 408."), especially because the court gave a limiting instruction, People v. Vialpando, 954 P.2d 617, 628 (Colo.App.1997).

B. Schreiber's Statement to the Victim

Schreiber's statement to the victim, "do you have problems with women masturbating in the bathroom," made on the day after the offense, was admissible as res ges-tae because:

e This statement was proximate in time to the alleged offense and was useful to complete the story for the jury. See People v. Quintana, 882 P.2d 1366, 1373 (Colo.1994) (res gestae "includes evidence that is closely related in both time and nature to the charged offense").

elt was logically relevant to prove Schreiber's motive to cause affront or alarm to the victim and was not so inflammatory as to require exclusion under CRE 408. See Quintana, 882 P.2d at 1378-75.

C. Lubricating Jelly

Evidence of similar containers of lubricating jelly found in the laundromat restroom and in Schreiber's backpack when he was arrested was relevant based on his admission to using lubricating jelly in his "daily masturbating sessions," which makes the alleged indecent exposure at the laundromat "more probable ... than it would be without the evidence." See CRE 401.

Affording this evidence "the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected," People v. Gibbens, 905 P.2d 604, 607 (Colo.1995), it was not excludable under CRE 408. See also People v. District Court, 785 P.2d 141, 146 (Colo. 1990) ("the balance should generally be struck in favor of admission when evidence indicates a close relationship to the event charged").

The judgment is affirmed and the trial court's ruling disapproved.

Judge ROMAN concurs. Judge BERNARD concurring in part and dissenting in part.