People v. Esparza-Treto , 2011 Colo. App. LEXIS 1215 ( 2011 )

Opinion by

Judge GABRIEL.

Defendant, Ezequiel Esparza-Treto (Es-parza), appeals his judgment of conviction and sentence on numerous counts arising from a high-speed chase through Grand Junction, Colorado that ended when Esparza collided with another vehicle, causing serious bodily injury to both Esparza's passenger and the driver of the other vehicle. On the evidence presented here, we conclude that Esparza did not use his vehicle as a deadly weapon and therefore reverse his convictions for second and third degree assault. We further conclude that Esparza's reckless driving conviction must merge into his vehicular eluding conviction and therefore vacate the reckless driving conviction. In all other respects, we affirm the judgment and sentence, although we remand for correction of the mittimus.

I. Background

On the morning of December 6, 2006, Es-parza was driving his car with a passenger through Grand Junction. A trooper with the Colorado State Patrol activated his patrol car's strobe lights and siren in an attempt to stop Esparza to ticket him for speeding, but Esparza did not stop. Instead, a high-speed chase ensued, during which Esparza sped through residential neighborhoods and ig-pored red lights and stop signs. The chase ended when Esparza drove through a red light at a busy intersection and collided with another vehicle. The crash caused serious bodily injury to both Esparza's passenger and the driver of the other vehicle.

As pertinent here, Esparza was ultimately convicted of (1) one count of first degree assault with extreme indifference as to both the driver of the other vehicle and his passenger; (2) one count of second degree reckless assault as to the other driver; (8) one count of third degree assault as to his passenger; (4) two counts of vehicular assault (one as to the other driver and one as to his passenger); (5) one count of vehicular eluding; (6) one count of reckless driving; (7) one count of speeding; and (8) one count of violation of a traffic control device. The trial court sentenced Esparza on these various counts, and Esparza now appeals.

II. Sufficiency of the Evidence

Esparza first contends that the evidence at trial was insufficient to prove be-youd a reasonable doubt that he committed the crimes of first, second, and third degree assault. We conclude that the evidence was sufficient to support Esparza's first degree assault conviction. We agree with Esparza, however, that the evidence was insufficient to establish second and third degree assault, because the evidence did not support a finding that Esparza used his vehicle as a deadly weapon.

A. Standard of Review

The issue of the sufficiency of the evidence is a question of law that we review de novo. People v. Kriho, 996 P.2d 158, 172 (Colo.App.1999). We must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. People v. Sprouse, 983 P.2d 771, 777 (Colo.1999); People v. McIntier, 134 P.3d 467, 471 (Colo.App.2005).

The prosecution must be given the benefit of every reasonable inference that might be fairly drawn from the evidence. McIntier, 134 P.3d at 471. Further, the determination of the credibility of the witnesses is solely within the province of the fact finder, and it is the fact finder's function to consider and determine the weight to be accorded all parts of the evidence, and to resolve conflicts, inconsistencies, and disputes in the evidence. Id. An appellate court may not act as a thirteenth juror and set aside a verdict because it might have drawn a different conclusion were it the trier of fact. Id. at 471-72.

B. First Degree Assault

A person commits the crime of assault in the first degree with extreme indifference when "[uJnder cireumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct which creates a grave risk of death to another person, and thereby causes serious bodily injury to any person." 18-3-202(1)(c), C.R.8.2010.

At trial, three state troopers testified regarding their pursuit of Esparza's vehicle. A trooper flying a traffic enforeement operation observed Esparza speed through a fifty mile per hour zone at sixty-six miles per hour and then sixty-nine miles per hour. A trooper on the ground testified that Esparza's vehicle was traveling well over the posted speed limit when it passed him. The same trooper watched Esparza approach an intersection with a red light, veer to the right of an intersecting vehicle, and collide with it in the intersection.

A third trooper testified that he pursued Esparza while in a marked patrol car. The trooper followed Esparza off of the highway and through the bay of a car wash before Esparza returned to the northbound lane of the road. Despite the trooper's activating his sirens and lights, Esparza did-not slow down or stop. Indeed, at one point, he increased his speed to seventy miles per hour while traveling through a forty mile per hour zone. The trooper testified that Esparza cut through traffic, passed vehicles in an unlawful manner, and continued through a red light at an intersection. This trooper followed Esparza to a residential area and observed Esparza speed through three posted stop signs without stopping.

The chase ended when Esparza attempted to speed through a red light. The third trooper testified that he observed Esparza enter the intersection, attempt to swerve without braking around a vehicle passing through that intersection, and collide with that vehicle. The trooper then used his patrol car to pin Esparza's vehicle so that he could not drive back into traffic.

A trooper estimated Esparza's speed at the moment of impact as seventy-five miles per hour, and a bystander described Esparza as driving "like a bat out of hell." As noted above, the collision inflicted serious bodily injury on the driver of the other vehicle and on the passenger in Esparza's vehicle.

We conclude that the foregoing evidence amply establishes that Esparza drove recklessly and with extreme indifference through business and residential areas of Grand Junetion. Moreover, the evidence shows that Es-parza knowingly engaged in conduct that cere-ated a grave risk of death to those around him and ultimately caused a collision that resulted in serious bodily injury to two other people. Viewing the evidence in the light most favorable to the prosecution, we thus conclude that the record supports the jury's determination that Esparza committed the crime of first degree assault with extreme indifference. «

C. Second and Third Degree Assault

A person commits second degree reckless assault when he or she "recklessly causes serious bodily injury to another person by means of a deadly weapon." 18-3-208(1)(d), C.R.S$.2010. As charged here, a person commits third degree assault when he or she "with criminal negligence ... causes bodily injury to another person by means of a deadly weapon." 18-3-204(1)(a), CRS. 2010.

Relying on People v. Stewart, 55 P.3d 107, 112 (Colo.2002), Esparza argues that there was insufficient evidence to show that he used his motor vehicle as a deadly weapon. Specifically, he asserts that unlike in Stewart, the evidence here was insufficient to allow a reasonable jury to conclude that he used or intended to use his vehicle as a deadly weapon. We agree.

Section 18-1-901@)(e), C.R.S.2010, provides:

"Deadly weapon" means any of the following which in the manner it is used or intended to be used is capable of producing death or serious bodily injury:

(I) A firearm, whether loaded or unloaded;

(II) A knife;

(III) A bludgeon; or

(IV) Any other weapon, device, instrument, material, or substance, whether animate or inanimate.

Our supreme court has "consistently held that whether an object is a deadly weapon for the purposes of section 18-l-903(e)(IV) depends on the manner in which the object is used." Stewart, 55 P.3d at 117. Implicit in the supreme court's deadly weapon analysis of subpart (IV) "is the requirement that the object be used or intended to be used as a weapon." Id. To determine whether an object is a deadly weapon, we employ a two-step inquiry:

First, the object must be used or intended to be used as a weapon. Grass v. People, 172 Colo. 223, 228, 471 P.2d 602, 604 (1970) (adopting the view that the instruments that are not per se deadly weapons "must . mean some article or object, which could be and was used as a weapon"). Second, the object must be capable of causing serious bodily injury.

Id.

Thus, the fact that an object is capable of causing serious bodily injury is not alone enough. That an object was capable of producing serious bodily injury "would be irrelevant for purposes of section 18-1-901(8)(e) had [the object] not been deployed as a weapon. The defendant need not intend to cause serious bodily injury; he must merely use as a weapon an object or instrument that is capable of causing such injury." Id. (emphasis added).

Although in Stewart, our supreme court repeatedly emphasized that to be a "deadly weapon," an object must be used or deployed as a weapon, neither that court nor the General Assembly has defined the word "weapon." In common usage, however, a "weapon" is defined as "an instrument of offensive or defensive combat: something to fight with: something (as a club, sword, gun, or grenade) used in destroying, defeating, or physically injuring an enemy." Webster's Third New International Dictionary 2589 (2002). Accordingly, we conclude that to be a deadly weapon, an object must be used in connection with assaultive conduct directed toward an intended opponent or adversary.

Our supreme court's precedents regarding objects being used as deadly weapons are fully consistent with this conclusion, because each involved an object being specifically directed toward another in an assaultive way. See, e.g., People v. Saleh, 45 P.3d 1272, 1276 (Colo.2002) (holding that the defendant's foot was used as a deadly weapon when the defendant kicked the victim in the back in order to propel her down a flight of stairs); People v. Ross, 831 P.2d 1310, 1314 (Colo.1992) (holding that the defendant's fist was used as a deadly weapon when the defendant, who was angry because the elderly victim's errant golf shot hit the defendant's car, punched the victim in the face, causing eight major fractures and resulting in the victim's having to have his lower jaw replaced); Bowers v. People, 617 P.2d 560, 563 (Colo.1980) (holding that a quart whiskey bottle that was made of glass and full was a deadly weapon when the defendant, in the course of a robbery of a liquor store, hit the store owner over the head with the bottle hard enough to shatter the bottle and render the owner unconscious); Miller v. Dist. Court, 193 Colo. 404, 407, 566 P.2d 1063, 1066 (1977) (holding that a beer bottle containing a firecracker was a deadly weapon when the defendant threw the bottle in the direction of the vie-tim's home, causing the bottle to explode twenty feet from a witness and scattering glass fragments onto the yard and front porch, where another witness was standing); Grass, 172 Colo. at 229, 471 P.2d at 605 (holding that a shoe could be a deadly weapon when the defendant struck the victim in the face with his fist, proceeded to rain blows on the victim, and after the victim fell to the ground, kicked him squarely in the face, breaking his nose and rendering him unconscious).

The supreme court's decision in Stewart is particularly instructive here. In Stewart, 55 P.3d at 117, the court observed that a motor vehicle may be a deadly weapon, depending on how it is used in a particular situation. In that case, three pedestrians were walking abreast in the middle of the driving lane when the defendant, apparently annoyed that they were in the middle of the road, "veered toward [them] at an angle," hitting one of them. Id. at 112. A verbal altercation ensued, after which the defendant "began driving back and forth at an angle and in an aggressive manner." Id. The pedestrian who had been hit by the defendant's vehicle eventually landed on top of the vehicle and then rolled off onto the ground. Id. at 112-13. Thereafter, the defendant ran over this pedestrian's head, which ultimately caused his death. Id. at 118.

In light of the foregoing authorities, we conclude that the evidence was insufficient to establish beyond a reasonable doubt that Es-parza used his vehicle as a weapon here. In this case, unlike in Stewart, there was no evidence that Esparza used his vehicle in connection with assaultive conduct specifically directed toward the other driver. To the contrary, the People's own evidence showed that Esparza was attempting to avoid the other driver's car when the collision oe-curred. Cf. People v. Roberts, 983 P.2d 11, 15 (Colo.App.1998) (holding that the trial court did not err in refusing to instruct the jury that a person's fists may be deadly weapons when there was no evidence that, on the night in question, the person at issue used or intended to use his fists as deadly weapons).

In so holding, we acknowledge Judge Taubman's argument that a literal reading of section 18-1-901(8)(e) does not require that a device or instrument be used or deployed as a weapon against an intended opponent or adversary. We part ways, however, based on our reading of Stewart, which, as noted above, requires more than just the use of an object in a manner capable of producing death or seriously bodily injury. Rather, as we read Stewart, it requires that the object be used or deployed as a weapon, and there is no evidence of that here. In addition, in our view, the dissent's reliance on the applicable mental states for second and third degree assault to argue that Esparza used his vehicle as a deadly weapon conflates the applicable mens rea (Me., recklessness or criminal negligence) with the applicable actus reus (i.e., the use of a deadly weapon). CJL Stewart, 55 P.3d at 117-18 (distinguishing recklessly causing serious bodily injury when using a vehicle as a vehicle from recklessly causing serious bodily injury when using the vehicle as a weapon, with the latter justifying an increased penalty).

Were we to conclude that Esparza used his vehicle as a deadly weapon on the facts presented here, where the evidence established no more than that Esparza drove recklessly and caused an accident resulting in serious bodily injury to another, then every reckless driving incident resulting in serious bodily injury to another would suffice to establish the elements of second or third degree assault. This would effectively convert a class 2 misdemeanor with a maximum sentence of six months in county jail to a class 4 felony and crime of violence with a possible sentence of twelve years in prison. See 18-1.3-401(1)(a)(V)(A), 18-1.3-406, 18-3-2083(1)(d), (2)(b), 424-1401, C.R.S8.2010. In our view, construing section 18-1-901(8)(e)(IV) to apply so broadly may well implicate equal protection concerns. See Stewart, 55 P.3d at 114 ("[If a criminal statute proscribes different penalties for identical conduct, a person convicted under the harsher penalty is denied equal protection unless there are reasonable differences or distinctions between the proscribed behavior."). Accordingly, we decline to adopt such a construction. See Kirkmeyer v. Dep't of Local Affairs, - P.3d -, -, 2011 WL 1168289 (Colo.App.2011) (noting that an appellate court has an obligation to avoid interpretations that invoke constitutional deficiencies and that when possible, statutes are to be construed so as to avoid questions of their constitutional validity).

In sum, we conclude that the evidence at trial was sufficient to support Esparza's con-viection for first degree assault but was insufficient to support his second and third degree assault convictions. In light of this disposition, we need not address Esparza's remaining contentions as to the second and third degree assault convictions.

III Merger

Esparza next contends that the trial court erred when it failed to vacate various lesser offense convictions under the doctrine of merger. Specifically, as still pertinent here, he contends that his reckless driving conviction should merge into his vehicular eluding conviction and that his conviction for attempting to elude a police officer should merge into his conviction for vehicular eluding. We agree with Esparza's first contention but reject his second.

A. Standard of Review

Because the issue of merger presents a question of statutory interpretation, we review de novo whether merger applies to criminal offenses. People v. Torres, 224 P.3d 268, 275 (Colo.App.2009).

B. Analysis

"When any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense." 18-1-408(1), C.R.S.2010. He or she may not be convicted of more than one offense, however, if offense is included in the other." 18~1-408(1)(a), C.R.S. 2010.

To determine whether one offense is a lesser included offense of another, we apply the "strict elements" test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See People v. Leske, 957 P.2d 1030, 1036-37 (Colo.1998). Under that test,

[i]f proof of facts establishing the statutory elements of the greater offense necessarily establishes all the elements of the lesser offense, the lesser offense is an included offense. However, if each offense necessarily requires proof of at least one additional fact that the other does not, the strict elements test is not satisfied.

People v. Bass, 155 P.3d 547, 553 (Colo.App.2006) (citations omitted). For purposes of this test, we compare the elements of the statutes involved, and not the evidence presented at trial, to determine whether one offense is a lesser included offense of another. Torres, 224 P.3d at 275.

One offense may also be a lesser included offense of another, even though it does not satisfy the strict elements test, when it "differs from the [greater] offense . only in the respect that a less serious injury or risk of injury to the same person . suffices to establish its commission." 18-1-408(5)(c), C.R.S.2010. Section 18-1-408(5)(c) "is limited to situations in which the 'included offense' is less serious or carries a lesser degree of culpability." People v. Halstead, 881 P.2d 401, 406 (Colo.App.1994).

1. Vehicular Eluding and Reckless Driving

Esparza asserts that his reckless driving conviction should merge into his vehicular eluding conviction. We agree.

A person commits the crime of vehicular eluding if he or she, while operating a motor vehicle, (1) knowingly eludes or attempts to elude a police officer who is also operating a motor vehicle; (2) knows or reasonably should know that he or she is being pursued by said police officer; and (8) operates his or her vehicle in a reckless manner. 18-9-116.5(1), C.R.$.2010.

A person commits the offense of reckless driving when he or she drives a motor vehicle "in such a manner as to indicate either a wanton or a willful disregard for the safety of persons or property." 42-4-1401(1), C.R.S. 2010.

In People v. Pena, 962 P.2d 285, 289 (Colo.App.1997), a division of this court held that reckless driving is a lesser included offense of vehicular eluding. The division concluded that the element of recklessness is the same in each offense, despite the applicable statutes' being worded differently. Id.

Relying on People v. Scarlett, 985 P.2d 36, 42-43 (Colo.App.1998), the People argue that Pena was wrongly decided and that reckless driving is not a lesser included offense of vehicular eluding, because the two statutes define recklessness differently. Scorleft, however, did not address the issue of merger. Moreover, the Scarlett division cited Pena but did not express disagreement with its holding. Id.

In light of the foregoing, we follow the reasoning of Pena here and conclude that one cannot commit the offense of vehicular eluding without also committing the offense of reckless driving. Thus, we conclude that reckless driving is a lesser included offense of vehicular eluding under the strict elements test and that the trial court erred in not merging Esparza's convictions for these two offenses.

2. Vehicular Eluding and Attempting to Elude a Police Officer

Esparza also contends that his conviction for attempting to elude a police officer should merge into his conviction for vehicular eluding. We are not persuaded.

As noted above, a person commits the crime of vehicular eluding if he or she, while operating a motor vehicle, (1) knowingly eludes or attempts to elude a police officer who is also operating a motor vehicle; (2) knows or reasonably should know that he or she is being pursued by said police officer; and (8) operates his or her vehicle in a reckless manner. 18-9-116.5(1).

A person commits the crime of attempting to elude a police officer when he or she, while operating a motor vehicle, (1) has received a visual or audible signal from a police officer driving a marked vehicle directing the operator to bring the vehicle to a stop, and (2) willfully increases his or her speed or extinguishes his or her lights in an attempt to elude such police officer, or willfully attempts in any other manner to elude the police officer, or does elude the police officer. 42-4-14183,

In People v. Fury, 872 P.2d 1280, 1283 (Colo.App.1993), a division of this court held, and we agree, that eluding a police officer is not alesser included offense of vehicular eluding. The statutory language defining eluding a police officer requires that the operator of a motor vehicle (1) receive a visual or audible signal, such as a red light or siren, (2) from a police officer driving a marked vehicle showing the vehicle to be an official police, sheriff, or Colorado state patrol car, (8) directing the operator to stop. 42-4-1418.

In contrast, to be convicted of vehicular eluding, the motor vehicle operator need not receive any type of signal from a marked police car. See 18—94116.'5(1). Rather, the evidence need show only that the driver knew or reasonably should have known that he or she was being pursued by a police officer, and this element can be proven absent any audible or visual signal from the officer. Id. Moreover, vehicular eluding requires the actor to operate his or her vehicle in a reckless manner, see id., while attempting to elude a police officer lacks this requirement, see 42-4-1418.

For these reasons, we conclude that attempting to elude a police officer is not a lesser included offense of vehicular eluding.

IV. Jury Instruction

Esparza next contends that the trial court abused its discretion when it rejected his proffered jury instruction defining the terms "extreme indifference" and "grave risk of death," both of which are elements of first degree assault. We disagree.

A. Standard of Review

The proper construction of a statute is a question of law that we review de novo. People v. Hernandez, 160 P.3d 263, 264 (Colo.App.2007), aff'd, 176 P.3d 746 (Colo.2008); see also Griego v. People, 19 P.3d 1, 7 (Colo.2001) (noting that a jury can only fulfill its constitutionally mandated role of finding each element beyond a reasonable doubt when that jury has been instructed on the precise statutory definition for the required culpable mental state).

It is within the sound discretion of the trial court to determine whether additional jury instructions that properly state the law should be submitted. People v. Chavez, 190 P.3d 760, 769 (Colo.App.2007). A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or based on an erroneous understanding or application of the law. People v. Orozco, 210 P.3d 472, 475 (Colo.App.2009).

B. Analysis

In Jury Instruction No. 11, the trial court used the precise language of section 18-3-202(1)(c) to instruct the jury on the elements of assault in the first degree with extreme indifference. Esparza, however, asked the trial court to instruct the jury that "extreme indifference means a total lack of concern or caring," and "grave risk of death means a practically certain risk of death." The trial court rejected these tendered instructions, and we perceive no abuse of discretion.

Relying on People v. Marcy, 628 P.2d 69, 80 (Colo.1981), in which our supreme court defined the element of acting with extreme indifference to the value of human life as "acting with the awareness that one's actions are practically certain to cause the death of another," Esparza argues that the trial court should have defined that element here. See also People v. Thomas, 729 P.2d 972, 975 (Colo.1986) ("[The intent requirement for extreme indifference murder ... necessitates a conscious object to engage in conduct that in fact creates a grave risk of death to another."). We are not persuaded.

"When a term, word, or phrase in a jury instruction is one with which reasonable persons of common intelligence would be familiar, and its meaning is not so technical or mysterious as to create confusion in jurors' minds as to its meaning, an instruction defining [that term, word, or phrase] is not required." People v. Thoro Prods. Co., 45 P.3d 737, 745 (Colo.App.2001), aff'd, 70 P.3d 1188 (Colo.2003). In the context of first degree assault, " '[glrave' is commonly understood to mean serious or imminent, or likely to produce great harm or danger." Marcy, 628 P.2d at 79. Similarly, "the phrase 'extreme indifference' uses common words and is generally understood to mean a total lack of concern or caring." People v. Johnson, 923 P.2d 342, 347 (Colo.App.1996). When a jury indicates no confusion about the meaning of such common phrases, the trial court's failure to define such phrases specifically does not require a new trial. Id.

Here, the trial court used commonly understood words to define the first degree assault elements of "extreme indifference to human life" and "grave risk of death." We agree with the Johnson division's analysis of the same issue, see Johnson, 928 P.2d at 347, and thus conclude that the trial court's decision not to give Esparza's proffered jury instruction was not manifestly arbitrary, unreasonable, or unfair, or based on an erroneous understanding or application of the law. See Orozco, 210 P.3d at 475.

V. Mittimus

Finally, Esparza contends, the People concede, and we agree, that the mittimus must be corrected to reflect the jury's verdict finding him guilty of attempting to elude a police officer in violation of section 42-4-1418.

When the mittimus is incorrect, we must remand to allow the trial court to correct it. See People v. Malloy, 178 P.3d 1283, 1289 (Colo.App.2008). Here, Esparza was originally charged with one count of attempting to elude a police officer as defined in section 42-4-1418. Although the jury subsequently returned a verdict finding Esparza guilty of that charge, the mittimus erroneously reflects that Esparza was convicted of the class six felony of attempted vehicular eluding under section 18-9-116.5.

Accordingly, we remand this case with instructions that the trial court correct the mittimus to reflect the true nature of the crime of which Esparza was convicted. See Malloy, 178 P.3d at 1289.

VI. Conclusion

For these reasons, the judgment is reversed as to Esparza's convictions for second and third degree assault, the judgment and sentence are vacated as to Esparza's reckless driving conviction, and this case is remanded to the trial court to correct the mittimus in accordance with this opinion: In all other respects, the judgment and sentence are affirmed.

Judge concurs. Judge TAUBMAN concurs in part and dissents in part.