v. Sims

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
May 7, 2020

2020COA78

No. 18CA0528, People v. Sims — Crimes — Eluding or
Attempting to Elude a Police Officer — Aggravated Driving
After Revocation Prohibited; Criminal Law — Prosecution of
Multiple Counts for Same Act — Lesser Included Offenses

In this challenge to the sufficiency of evidence to sustain a

conviction for eluding or attempting to elude a police officer under

section 42-4-1413, C.R.S. 2019, a division of this court rejects the

defendant’s argument that “eluding” or “attempting to elude”

requires some sort of evasive action that makes it harder for the

police to follow. Rather, depending on the circumstances, elude

may simply be defined as to avoid, escape, or not be caught. The

division also holds that the defendant’s conviction for eluding or

attempting to elude a police officer should merge into his conviction

for aggravated driving after revocation prohibited.
COLORADO COURT OF APPEALS 2020COA78

Court of Appeals No. 18CA0528
Larimer County District Court No. 14CR1014
Honorable Stephen E. Howard, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dustin Robert Sims,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE VOGT*
Dunn and Johnson, JJ., concur

Announced May 7, 2020

Philip J. Weiser, Attorney General, Danny Rheiner, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 In 2014, a jury convicted defendant, Dustin Robert Sims, of

eluding or attempting to elude a police officer, aggravated driving

after revocation prohibited (aggravated DARP), and two lesser

offenses. On direct appeal, a division of this court concluded that

police officers had given improper opinion testimony at trial about

whether Sims’s conduct amounted to “eluding,” which was an

ultimate issue to be decided by the jury. The division reversed in

part and remanded for a new trial on the charges of eluding or

attempting to elude and aggravated DARP. See People v. Sims,

(Colo. App. No. 15CA0475, June 15, 2017) (not published pursuant

to C.A.R. 35(e)).

¶2 At the second trial, Sims was again found guilty on those

counts, and he now appeals. Sims first contends that the evidence

was insufficient to sustain his conviction for eluding or attempting

to elude a police officer (without that conviction, his DARP

conviction would not be aggravated). Second, he contends that his

eluding or attempting to elude conviction should have been merged

into his conviction for aggravated DARP.

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¶3 We disagree with his first contention but agree with the

second. We therefore affirm the judgment in part, vacate it in part,

and remand for further proceedings.

I. Background

¶4 The evidence at the second trial in this case showed the

following.

¶5 Sims was told to leave a rodeo in Estes Park, Colorado, when

he became irate and belligerent following an unfounded allegation

about a theft of a cowboy hat. Sims then drove to a local police

station to lodge a complaint against the police officer who had been

involved in the incident at the rodeo. When the station was initially

unable to provide Sims with a complaint form, he became frustrated

and left. He described his mental state upon leaving the station as

“enraged.”

¶6 Meanwhile, the officer involved in the rodeo incident had been

dispatched to bring a complaint packet to the station for Sims to fill

out. The officer had learned through a records check after the

incident that Sims’s driving status had been revoked as a habitual

traffic offender. When the officer was driving into the station

2
parking lot, he observed Sims backing out of a parking space, and

he saw that one brake light on Sims’s car was out.

¶7 The officer, driving a marked patrol vehicle, tried to initiate a

traffic stop of Sims’s car by activating the vehicle’s emergency

lights. Sims did not pull over but continued driving, within the

speed limit. The officer then sounded his siren, using three

different siren tones, but Sims still did not respond. Another officer

joined the pursuit, also activating his emergency lights and sirens,

and other drivers pulled their cars off to let the officers pass. Sims

kept driving, all the while within the speed limit. After pursuing

Sims for just over three miles, the officers discontinued the pursuit

at the city limits based on the local police department’s policy.

¶8 A sergeant with the county sheriff’s department heard about

the pursuit over dispatch. After the local officers stopped their

pursuit and asked the sheriff’s department for help, the sergeant

began pursuing and eventually caught up to Sims’s car

two-and-a-half miles down the road. He activated his emergency

lights and sounded different sirens, including a very loud air horn.

Sims kept driving, within the speed limit. During the sergeant’s

pursuit, he noticed Sims smoking a cigarette and flicking the ashes

3
out the window. After pursuing Sims’s car for two miles, the

sergeant conducted a precision immobilization technique maneuver,

causing Sims’s car to spin off the road. Sims was arrested at the

scene.

¶9 Sims testified that he was driving with loud music on and with

an earbud in one ear and that he did not hear or see any police cars

behind him.

¶ 10 The jury found Sims guilty on both counts.

II. Sufficiency of the Evidence of Eluding or Attempting to Elude

¶ 11 Sims contends that the evidence was insufficient to sustain

his conviction for eluding or attempting to elude a police officer

because eluding or attempting to elude requires some type of “trick”

or “evasive action” that makes it harder for the police to follow. He

cites the following as possible examples: increasing one’s speed,

turning off one’s headlights, swerving around other cars, or ducking

onto a side road. He argues that “the prosecution has to show that

a person did something more than simply refuse to stop,” and that

because “he just continued to drive normally, and he followed all

applicable traffic regulations while doing so,” the evidence was

insufficient to sustain his conviction. We disagree.

4
A. Standard of Review

¶ 12 When assessing the sufficiency of the evidence supporting a

conviction, we review the record de novo to determine whether the

relevant evidence, viewed as a whole and in the light most favorable

to the prosecution, was sufficient to support the conclusion by a

reasonable juror that the defendant was guilty beyond a reasonable

doubt. Butler v. People, 2019 CO 87, ¶ 20.

¶ 13 We review issues of statutory construction de novo. Garcia v.

People, 2019 CO 64, ¶ 33.

B. Law Criminalizing Eluding or Attempting to Elude

¶ 14 The General Assembly has defined the crime of eluding or

attempting to elude a police officer as follows:

Any operator of a motor vehicle who the officer
has reasonable grounds to believe has violated
a state law or municipal ordinance, who has
received a visual or audible signal such as a
red light or a siren from a police officer driving
a marked vehicle showing the same to be an
official police, sheriff, or Colorado state patrol
car directing the operator to bring the
operator’s vehicle to a stop, and who 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
such police officer commits [the] class 2

5
misdemeanor traffic offense [of eluding or
attempting to elude a police officer].

§ 42-4-1413, C.R.S. 2019 (emphasis added).

¶ 15 The evidence required to establish eluding or attempting to

elude under section 42-4-1413 has been addressed in two

published Colorado cases, neither of which involves the same

circumstances as those presented here.

¶ 16 In People v. Espinoza, 195 P.3d 1122, 1125 (Colo. App. 2008),

after a police officer activated his emergency lights and siren to

conduct a traffic stop of the defendant’s car, the defendant drove

slowly for four blocks and then fled on foot. In concluding that the

evidence of eluding or attempting to elude was sufficient, the

division relied primarily on the defendant’s attempted flight on foot.

See id. at 1128-29.

¶ 17 In People v. Procasky, 2019 COA 181, ¶¶ 3-5, 18-25, after

officers activated their lights and sirens to conduct a traffic stop of

the defendant’s car, the defendant drove for two blocks, pulled into

a parking lot, stopped his car, and followed the officers’ directions

thereafter. Finding Espinoza distinguishable because that case

focused on the defendant’s flight on foot, the Procasky division

6
concluded that the evidence of eluding or attempting to elude was

insufficient. See id. at ¶¶ 18-25.

C. What Does “Elude” Mean?

¶ 18 The word “elude” is not defined in the relevant statutory

scheme, nor is it defined in the Colorado Model Criminal Jury

Instructions. The jury in this case was not provided with a

definition for the word.

1. Dictionary Definitions

¶ 19 When jury instructions do not provide a definition for a

particular term, the jury is presumed to apply the common meaning

or meanings of the term. People v. Walden, 224 P.3d 369, 379

(Colo. App. 2009). Although jurors are of course not permitted to

consult a dictionary for such information, see People v. Holt, 266

P.3d 442, 446-47 (Colo. App. 2011) (juror improperly brought a

dictionary definition of “elude” or “eluding” into jury room), we may

do so to determine how a reasonable juror might construe the

meaning of a term, see Cowen v. People, 2018 CO 96, ¶ 14 (“When

determining the plain and ordinary meaning of words, we may

consider a definition in a recognized dictionary.”).

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¶ 20 In this case, however, dictionary definitions do not provide a

definitive answer. On the one hand, some definitions support

Sims’s contention that eluding requires proof that the defendant

took some kind of evasive action. Both Webster’s Ninth New

Collegiate Dictionary 405 (1990) and the online Merriam-Webster

Dictionary, https://perma.cc/GP67-7ZYZ, define “elude” as “to

avoid adroitly.” The term “adroitly,” in turn, is defined as using

“skill, cleverness, or resourcefulness.” Merriam-Webster Dictionary,

https://perma.cc/5UQF-9GB7. See also The American Heritage

Dictionary of the English Language 582 (4th ed. 2000) (defining

“elude” as “to evade or escape from, as by daring, cleverness, or

skill”).

¶ 21 On the other hand, some definitions of elude do not require

evasive action. See Cambridge Dictionary, https://perma.cc/47AL-

5DNH (defining “elude” as simply “to not be caught by someone”);

see also Collins English Dictionary, https://perma.cc/XJ6A-YJL4

(“If you elude someone or something, you avoid them or escape from

them.”); Macmillan Dictionary, https://perma.cc/N3AF-YE49

(defining elude as “to manage to escape or hide from someone or

something”).

8
¶ 22 Relying on dictionary definitions, then, does not show that a

reasonable juror would necessarily think that some kind of evasive

action is required before “eluding or attempting to elude” can be

found.

2. The Principle of Ejusdem Generis

¶ 23 Nor do we agree with Sims that such evasive action is required

if we construe the relevant statute according to the principle of

ejusdem generis. Under that principle of statutory construction,

“when a general word or phrase [in a statute] follows a list of

specific persons or things, the general word or phrase will be

interpreted to include only persons or things of the same type as

those listed.” Davidson v. Sandstrom, 83 P.3d 648, 656 (Colo. 2004)

(quoting Black’s Law Dictionary 535 (7th ed. 1999)).

¶ 24 Applying that principle to section 42-4-1413, Sims argues,

means that because the statute’s specific examples of attempting to

elude — increasing one’s speed and extinguishing one’s lights —

involve tricks or evasive actions, the general clause that follows —

“attempts in any other manner to elude” — must be interpreted to

include only tricks or evasive actions. We disagree.

9
¶ 25 As the division in Espinoza explained, the “phrase ‘in any

other manner’ [in the last clause of section 42-4-1413] is broad and

clarifies that an operator violates the statute regardless of how the

operator attempts to elude the police.” 195 P.3d at 1129; see also,

e.g., Gooch v. United States, 297 U.S. 124, 128 (1936) (relying in

part on statute’s use of the broad term “otherwise” in declining to

apply ejusdem generis principle to construction of federal

kidnapping statute).

¶ 26 Applying ejusdem generis here would, instead, narrow the

construction of the phrase “in any other manner,” and would

narrow the reach of section 42-4-1413. When we consider that

statute as part of the broader statutory scheme addressing similar

behavior, we discern nothing to suggest that the General Assembly

intended such a narrow construction. See S.A.S. v. Dist. Court, 623

P.2d 58, 62 n.5 (Colo. 1981) (The principle of ejusdem generis

“should not be applied in a manner that hinders the attainment of

the objectives contemplated by the statutory scheme.”).

¶ 27 A different statute, section 18-9-116.5, C.R.S. 2019, addresses

“vehicular eluding,” which is a felony. Conviction of that felony

requires proof that the driver “operate[d] his or her vehicle in a

10
reckless manner.” § 18-9-116.5(1). Section 18-9-116.5 thus would

not apply in a situation where, as here, the driver was not driving

recklessly.

¶ 28 Another statute, section 42-4-705(1), C.R.S. 2019, addresses

failing to yield the right-of-way to an emergency vehicle:

Upon the immediate approach of an authorized
emergency vehicle making use of audible or
visual signals . . ., the driver of every other
vehicle shall yield the right-of-way and where
possible shall immediately clear the farthest
left-hand lane lawfully available to through
traffic and shall drive to a position parallel to,
and as close as possible to, the right-hand
edge or curb of a roadway clear of any
intersection and shall stop and remain in that
position until the authorized emergency vehicle
has passed, except when otherwise directed by
a police officer.

(Emphasis added.) A person who violates this statute commits a

class A traffic infraction, § 42-4-705(3)(a), and must pay a penalty

of between $15 and $100, § 42-4-1701(3)(a)(I), C.R.S. 2019.

¶ 29 Although Sims was in fact found guilty at his first trial of

violating section 42-4-705(1) as a lesser nonincluded offense related

to the eluding charge, it does not follow that this statute was

intended to afford the only remedy available for the type of conduct

at issue in this case. By its plain language, section 42-4-705(1) is

11
intended to address drivers who fail to yield the right of way so that

emergency vehicles can pass easily to get to an emergency, not

drivers who themselves are being pursued by police officers.

¶ 30 Considering the related statutes, sections 42‑4‑705(1)

and 18-9-116.5, leads us to agree with the Espinoza division that

the clause in section 42‑4‑1413, “attempts in any other manner to

elude,” must be construed broadly. Otherwise, someone who

required police to pursue him for miles, albeit without driving

recklessly, would be guilty only of failing to yield the right-of-way to

an emergency vehicle — a result which we view as inconsistent with

the legislative intent evidenced in the statutory scheme described

above.

¶ 31 We also note that courts in other jurisdictions have, under

different statutory schemes, recognized that driving some distance

to avoid being pulled over can amount to eluding police even if no

traffic laws are being broken. See State v. Donkers, 867 N.E.2d

903, 925 (Ohio Ct. App. 2007) (Even where elude is construed to

mean “slyly avoid[] with artifice, stratagem, or dexterity,” “one could

come up with various theories to support appellant’s intent to

elude. For instance, one could believe that she was trying to leave

12
the jurisdiction and was hoping the trooper could not follow.”); see

also People v. Sanchez, 103 Cal. Rptr. 2d 809, 814 (Ct. App. 2001)

(“[A]s can be attested to by those who watched the ludicrous pursuit

of Orenthal James Simpson in his white Bronco, a driver can flee or

otherwise attempt to elude pursuing officers in a manner that does

not pose a high probability of death to anyone.”); State v. James,

237 P.3d 672, 679-80 (Mont. 2010) (Rice, J., concurring in part and

dissenting in part) (“O.J.’s quixotic quest had not been done

recklessly and had not endangered but, nonetheless, he had

exhibited the criminal objective of eluding police.”).

3. The Meaning of Elude

¶ 32 In sum, we do not agree with Sims that “elude” must

invariably include some kind of trick or evasive action. Rather,

depending on the circumstances, elude may simply be defined as

“avoid,” “escape,” or “to not be caught.” This does not mean that

any time a person does not immediately stop when a police car

directs him or her to do so, the person is guilty of violating section

42-4-1413. The statute also requires that the driver be found to

have acted “willfully.” Where, for example, a driver continues

driving for miles without pulling over, despite being pursued by

13
police with activated lights and sirens, a reasonable jury could

conclude that he or she was willfully attempting to elude the police

officer. Conversely, as in Procasky, pulling over after a short

distance and then cooperating with police could be insufficient to

establish a violation of section 42-2-1413.

¶ 33 Finally, we do not agree with Sims that a construction that

permits the jury to consider factors such as the length of time or

distance driven renders the statute unconstitutionally vague.

Contending that we must designate a specific distance to avoid

vagueness, Sims asks: “If driving for two blocks is not enough, then

what is?” In our view, it is not necessary to decide, as a matter of

law, how far a driver can drive before violating the statute. Each

case will involve differing facts, and we are confident that

reasonable jurors will be able to decide, based on all the evidence,

whether the prosecution has shown beyond a reasonable doubt that

the defendant’s conduct amounted to willfully eluding or attempting

to elude a police officer.

D. Application

¶ 34 The jury in the second trial heard evidence that the first

pursuing officer knew that Sims’s driver’s license had been revoked,

14
and Sims also was aware of that fact; the officers, and the sergeant

with the county sheriff’s department, pursued Sims in marked

vehicles, sounded sirens, and activated their emergency lights; Sims

had his car window open at least long enough to flick a cigarette;

and Sims drove over three miles, leaving the police officers’

jurisdiction, and then continued driving for some two miles after the

sergeant caught up with him.

¶ 35 This evidence, considered under the standards set forth above,

was sufficient to support a conclusion by a reasonable juror that

Sims was guilty beyond a reasonable doubt of willfully eluding or

attempting to elude a police officer under section 42-4-1413. The

fact that he did not violate any traffic laws while driving does not

require a contrary conclusion.

III. Double Jeopardy and Merger

¶ 36 Sims also contends that his conviction for eluding or

attempting to elude a police officer is a lesser included offense, and

therefore should merge into his conviction for aggravated DARP.

We agree.

¶ 37 Whether convictions for different offenses merge is a question

of law that we review de novo. Page v. People, 2017 CO 88, ¶ 6.

15
Because Sims did not request this relief in the trial court, we review

for plain error. See Reyna-Abarca v. People, 2017 CO 15, ¶¶ 34-47.

However, in this context, “when a defendant’s double jeopardy

rights are violated for failure to merge a lesser included offense into

a greater offense, such a violation requires a remedy.” Friend v.

People, 2018 CO 90, ¶ 45 (quoting Reyna-Abarca, ¶ 81).

¶ 38 When a defendant’s conduct establishes the commission of

more than one offense, the defendant may be prosecuted for each

such offense, but he or she may not be convicted of more than one

offense if “[o]ne offense is included in the other,” that is, if the lesser

offense “is established by proof of the same or less than all the facts

required to establish” the greater offense. § 18-1-408(1)(a), (5)(a),

C.R.S. 2019. In other words, “an offense is a lesser included

offense of another offense if the elements of the lesser offense are a

subset of the elements of the greater offense, such that the lesser

offense contains only elements that are also included in the

elements of the greater offense.” Friend, ¶ 34 (quoting

Reyna-Abarca, ¶ 64).

¶ 39 The aggravated DARP statute, section 42-2-206(1)(b)(I), C.R.S.

2019, states:

16
A person commits the crime of aggravated
[DARP] if he or she is found to be an habitual
offender and thereafter operates a motor
vehicle in this state while the revocation of the
department prohibiting such operation is in
effect and, as a part of the same criminal
episode, also commits any of the following
offenses:

....

(C) Reckless driving . . .;

(D) Eluding or attempting to elude a police
officer . . .;

. . .; or

(F) Vehicular eluding . . . .

(Emphasis added.)

¶ 40 The italicized clause above — “and, as a part of the same

criminal episode, also commits any of the following offenses” —

means that the offenses listed in the subsections under section

42-2-206(1)(b), including eluding or attempting to elude under

subsection (D), are lesser included offenses of aggravated DARP.

See Espinoza, 195 P.3d at 1130 (“Defendant contends, the People

concede, and we agree, that [defendant’s] conviction for eluding

must be vacated because it merges with his conviction for

aggravated DARP.”); see also People v. Dutton, 2014 COA 51,

17
¶¶ 27-36 (concluding that reckless driving under subsection (C) and

vehicular eluding under subsection (F) are lesser included offenses

of aggravated DARP, but merging only the reckless driving

conviction into the aggravated DARP conviction in order to uphold

as many sentences as legally possible); cf. Zubiate v. People, 2017

CO 17, ¶¶ 17-21 (under the strict elements test, driving under

restraint — which is not listed in any subsection under section

42-2-206(1)(b) — is not a lesser included offense of aggravated

DARP), disapproved of by People v. Rock, 2017 CO 84, ¶ 16 n.4.

¶ 41 Consistent with the legal principles set forth above, the jury

instruction on aggravated DARP in Sims’s case set forth the

elements the jury was required to find, including that, “(7) as part of

the same criminal episode, [Sims] committed the following crime:

Eluding or Attempting to Elude a Police Officer.” However, as

noted, although the jury convicted Sims of aggravated DARP and

eluding or attempting to elude a police officer, the two offenses were

not merged at sentencing.

¶ 42 Citing People v. Dominguez, 2019 COA 78, ¶ 63, the People

argue that merger is not required because Sims committed two

separate and temporally distinct instances of eluding or attempting

18
to elude: one in attempting to elude the local police officers, the

other in attempting to elude the sergeant during the last two miles

of the pursuit. We are not persuaded.

¶ 43 In Dominguez, a division of this court recognized that multiple

convictions for two separate offenses, the elements of one of which

constitute a subset of the elements of the other, can stand if the

offenses were committed by distinctly different conduct. Id. The

Dominguez division held that the defendant’s reckless driving and

vehicular eluding convictions did not merge where the evidence

presented supported two factually and temporally distinct instances

of reckless driving. Id. at ¶¶ 66-71; see also People v. McMinn, 2013

COA 94, ¶¶ 8, 31-35 (prosecution charged defendant with, and tried

him on, four counts of vehicular eluding, one for each pursuing

officer; merger was not required where each act was “a new

volitional departure” in the defendant’s course of conduct, not

merely a single, continuous, uninterrupted act of eluding).

¶ 44 In contrast to Dominguez and McMinn, the prosecution

charged Sims with a single count of eluding or attempting to elude

and, in that charge, presented evidence of Sims’s single, continuing,

and uninterrupted act of eluding or attempting to elude. The same

19
is true for the aggravated DARP charge — the prosecution did not

specify any particular act of eluding or attempting to elude

underlying that charge. Consistent with the charges, during closing

argument at trial, the prosecutor argued to the jury that Sims had

committed one continuous act of eluding:

7.8 miles. That was the distance that Mr.
Sims eluded police. . . . [O]ne could debate,
what is that distance at which failure to yield
becomes eluding. I don’t know if that distance
is 100 feet or half a mile, or maybe even a mile.
But I’m asking you to determine that it
certainly is 7.8 miles, that when you fail to
stop for police for 7.8 miles, the only
reasonable conclusion is that you’re
attempting to elude police. And that’s what
happened here.

The prosecutor then addressed the aggravated DARP charge, saying

to the jury, “if you consider or deliberate over the eluding count and

you make the determination that he did not elude police, you

cannot find that he committed aggravated driving while revoked as

[a] habitual traffic offender.”

¶ 45 Under these circumstances, we are unpersuaded by the

People’s arguments on this issue. See Friend, ¶ 23 (“[T]he

information did not allege specific facts supporting each of these

individual counts. Moreover, although before us the People have

20
attempted to assign specific facts to particular counts, the

prosecution did not try the case that way.”); People v. Abiodun, 111

P.3d 462, 471 (Colo. 2005) (To charge multiple counts of the same

offense, the prosecution must charge them “with sufficient

specificity to distinguish” them.).

¶ 46 Eluding or attempting to elude a police officer is a lesser

included offense of aggravated DARP, and the fact that Sims has

convictions for both offenses “requires a remedy.” See Friend, ¶ 45

(quoting Reyna-Abarca, ¶ 81).

IV. Conclusion

¶ 47 Sims’s conviction for aggravated DARP is affirmed. Sims’s

conviction for eluding or attempting to elude a police officer is

vacated. We remand for the trial court to merge Sims’s conviction

for eluding or attempting to elude a police officer into his conviction

for aggravated DARP.

JUDGE DUNN and JUDGE JOHNSON concur.

21