Peo v. Vialpando

22CA0957 Peo v Vialpando 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0957
City and County of Denver District Court No. 21CR3949
Honorable Adam J. Espinosa, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Areus I. Vialpando,

Defendant-Appellant.

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

Division I
Opinion by JUDGE YUN
J. Jones and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 6, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Patrick R. Henson, Alternate Defense Counsel, Chelsea A. Carr, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellant
¶1 Areus I. Vialpando appeals the judgment of conviction entered

on jury verdicts finding him guilty of vehicular eluding, first degree

aggravated motor vehicle theft, and second degree aggravated motor

vehicle theft. He contends that the district court erred by denying

his motion for a mistrial concerning a dismissed juror and by not

merging his convictions for aggravated motor vehicle theft. We

vacate his conviction and sentence for second degree aggravated

motor vehicle theft and remand the case to the district court with

instructions to correct the mittimus. But we affirm in all other

respects.

I. Background

¶2 Vialpando stole a car that had been left idling outside of a

liquor store. He crashed the car while attempting to elude the

police and was thereafter arrested. The People brought charges,

and the case went to trial.

¶3 On the second day of the two-day trial, an attorney from the

district attorney’s office — uninvolved in this case — overheard a

juror speaking on the phone in the public restroom. The attorney

informed the prosecutor in this case of what he had heard and

identified a juror for Vialpando’s trial, Juror H, as the person who

1
had been on the phone. The prosecutor, in turn, brought the

matter to the attention of Vialpando’s counsel and the court, stating

that the substance of the juror’s phone conversation was “I will be

done tomorrow. This is easy. It’s on video, him stealing it.”

¶4 Vialpando’s counsel moved for a mistrial, but the court

deferred ruling on the motion until after it spoke with Juror H

about the incident. When questioned by the court, Juror H

admitted that he had spoken to his cousin while in the restroom

and had told her that he was serving as a juror. But Juror H

denied expressing any opinion on the case or making the

statements that the attorney said he had overheard. He told the

court that he had not already decided the outcome of the case

before the close of evidence, that he had not spoken to any of the

other jurors about the case, and that he could still be a fair and

impartial juror.

¶5 Vialpando’s counsel renewed her request for a mistrial, noting

that Juror H’s characterization of the phone conversation was at

odds with what the attorney had relayed to the prosecutor. And

since Juror H had (most likely) lied to the court, Vialpando

questioned the veracity of his assertion that he had not spoken with

2
the other jurors about the case. Thus, Vialpando’s counsel argued,

“I don’t think that there’s a solution that allows [Juror H] to remain

on the jury, but I also don’t think there’s a solution that . . . allows

the jury to remain.”

¶6 The prosecutor responded by requesting that Juror H be

dismissed and replaced by the alternate and suggested that the

court individually question the other jurors “to make sure they’ve

followed the [c]ourt[’s] orders, they did not speak to [Juror H] about

this case, [Juror H] did not speak to them about this case, and so

forth.” The court agreed with the prosecutor, denied the motion for

a mistrial, and excused Juror H from the jury panel.

¶7 The court then questioned the jurors one by one, asking them

“whether anyone had tried to talk to them, whether anyone

contacted them, whether a juror contacted them, whether they

spoke to a juror about the case, and whether [Juror H] talked to

them about the case.” After asking these questions, the court gave

both sides the opportunity to ask follow-up questions. Each juror

answered “no” to each of the judge’s questions, and the attorneys

did not ask any questions of their own.

3
¶8 After the court had questioned four of the twelve jurors, the

court’s law clerk told the parties and the court that, while he was

escorting Juror H out of the back hallways behind the jury room,

Juror H said that “he did do it.” The law clerk clarified that, when

Juror H made the statement, nobody was around, the door to the

jury room was closed, Juror H was not speaking louder than his

normal voice, and it was unlikely that the other jurors heard

anything. The parties did not have any follow-up questions for the

law clerk, did not request that the court inquire of the jurors

whether they had heard Juror H’s statement, and did not

themselves ask any jurors about the statement.

¶9 After the court finished questioning the remaining eight jurors,

Vialpando’s counsel renewed her request for a mistrial without

making any additional record. The court again denied the motion,

saying that it was “convinced that [Juror H] has not tried to speak

to any of [the remaining] jurors, that he’s not reached out to any of

these jurors, that no one has reached out to these jurors, nor has

anyone tried to speak to these jurors about this case.” Accordingly,

the court was “convinced the remaining jurors can sit in this case

4
and be fair and impartial, and that there has not . . . been any

reason for the case to not continue forward.”

¶ 10 The jury found Vialpando guilty of vehicular eluding, first

degree aggravated motor vehicle theft, and second degree

aggravated motor vehicle theft.

II. Analysis

¶ 11 Vialpando contends that the district court reversibly erred by

(1) denying his attorney’s motion for a mistrial based on Juror H’s

statements and (2) failing to merge his conviction for second degree

aggravated motor vehicle theft into his conviction for first degree

aggravated motor vehicle theft. We reject his first argument but

agree with his second.

A. Juror H’s Statements

¶ 12 Vialpando argues that the district court’s attempts to

investigate Juror H’s statements made in the restroom and while

being escorted away from the jury room were insufficient and,

therefore, the court abused its discretion by denying his motion for

a mistrial. After discussing the standard of review and the

appropriate framework for our analysis, we address Juror H’s

statements in turn.

5
1. Standard of Review and the Harper Framework

¶ 13 “A mistrial is a drastic remedy that is warranted only when the

prejudice to the accused is so substantial that its effect on the jury

cannot be remedied by other means.” People v. Pernell, 2014 COA

157, ¶ 24 (quoting People v. Cousins, 181 P.3d 365, 373 (Colo. App.

2007)), aff’d on other grounds, 2018 CO 13. We review a district

court’s denial of a motion for a mistrial for an abuse of discretion.

Id. A court abuses its discretion when it makes a decision that is

manifestly arbitrary, unreasonable, or unfair, or based on an

erroneous view of the law. People v. Van Meter, 2018 COA 13, ¶ 9.

¶ 14 “A criminal defendant is entitled to have the jury reach a

verdict based solely on the evidence presented in the courtroom.”

Dunlap v. People, 173 P.3d 1054, 1091 (Colo. 2007). Thus, the

constitutional right to a fair trial is implicated when a jury is

exposed to extraneous information or influences. Id.

¶ 15 Both Vialpando and the People suggest that we should apply

the objective test set forth in Wiser v. People, 732 P.2d 1139, 1142

(Colo. 1987), meaning we would review for “whether there is a

reasonable possibility that extraneous information or influence

affected the verdict.” But “[t]he reasonable possibility of prejudice

6
test articulated in Wiser . . . is not suitable for resolving the effect of

[extraneous information or influence] occurring during the trial

when the issue of the prejudicial effect of such [information or

influence] is presented before completion of the trial.” Harper v.

People, 817 P.2d 77, 83 (Colo. 1991). Since the district court in this

case addressed and attempted to investigate the extraneous

influence during the trial, we analyze the issue under the test set

forth in Harper.1 See, e.g., People v. Harrison, 58 P.3d 1103,

1109-10 (Colo. App. 2002) (applying the Harper test to a situation

involving midtrial contact between the defendant’s girlfriend and a

juror), abrogated on other grounds as recognized in Dunlap,

173 P.3d 1054.

¶ 16 In Harper, which involved jurors’ exposure to midtrial

publicity, the supreme court adopted a “simple three-step process,”

817 P.2d at 83 (quoting United States v. Gaggi, 811 F.2d 47, 51 (2d

1 We are not bound by the parties’ concessions regarding the

controlling law. People v. Snelling, 2022 COA 116M, ¶ 50 n.3.
Instead, we rely on our own interpretation of the law. Id.; see also
Lucero v. People, 2017 CO 49, ¶ 26 (noting that the party
presentation principle “does not prevent a court from properly
characterizing an issue that has been improperly characterized by a
party”).

7
Cir. 1987)), that a district court should follow to determine whether

midtrial extraneous information or influences prejudiced the

defendant’s right to a fair trial:

¶ 17 First, the district court must determine whether the

extraneous information has a potential for unfair prejudice. Id.

The court should focus on whether the information is inherently

prejudicial and, in doing so, consider whether the information

would be admissible at trial, how closely related the information is

to the matters at issue in trial, the timing of the exposure, and the

likelihood the jury was exposed. Id. at 84. “Doubt about the

existence of prejudice should be resolved by proceeding to step two

and polling the jurors as a group.” Id.

¶ 18 Second, if the district court determines that the information

has a potential for unfair prejudice, the court must poll the jurors

to find out if they have learned of the information. Id. In polling

the jury, the court may frame its questions in general terms to

minimize any implication that information adverse to the defendant

exists. Id. at 86.

¶ 19 Third, if any jurors were exposed to the information, the court

must examine those jurors separately to determine how much they

8
know of the information and what effect, if any, it has on their

ability to decide the case fairly. Id. at 83.

¶ 20 The district court’s application of this three-step inquiry “must

be conducted in the framework of the facts of each case, and the

[district] court has broad discretion in deciding the ultimate issue of

whether the [extraneous information] prejudiced the defendant’s

right to a fair trial.” Id. at 83-84; see People v. Jacobson, 2017 CO

28, ¶ 9.

2. The Restroom Statements

¶ 21 We discern no abuse of discretion in the district court’s

handling of Juror H’s statements overheard in the restroom.

Indeed, the court’s handling of the issue was a textbook application

of the Harper process.

¶ 22 To start, “because the court individually examined each juror,

we conclude that the court implicitly found the extraneous

[information] had the potential to be prejudicial.” Harrison, 58 P.3d

at 1110. Thus, the district court properly moved on to step two of

the Harper process and canvassed the jurors to find out if they had

been exposed to the potentially prejudicial statements. See Harper,

817 P.2d at 84.

9
¶ 23 The court questioned each juror individually2 in general terms

to minimize any implication that information adverse to Vialpando

existed. See id. at 86. And it gave both parties the option to ask

follow-up questions of each juror if they had any concerns that the

court’s questions did not adequately address. Neither party elected

to do so. No juror reported any exposure to extraneous information

or prejudgment about the case, whether from Juror H or elsewhere.

Accordingly, the district court properly ended its inquiry and did

not proceed to step three of the Harper process. See id. at 84 (“In

many cases such a poll may disclose that the jurors did not learn of

the [extraneous information], making it unnecessary to question

individual jurors.”).

¶ 24 And given that none of the jurors were exposed to Juror H’s

restroom statements, the district court did not abuse its discretion

by declining to grant a mistrial on the basis of those statements.

2 Though Harper v. People, 817 P.2d 77, 84 (Colo. 1991), suggests

that courts should implement step two by “polling the jurors as a
group,” we discern no abuse of discretion in the district court’s
decision to exercise extra caution by polling the jurors individually.

10
3. The Hallway Statement

¶ 25 We also do not perceive any abuse of discretion in the district

court’s handling of the statement — “he did do it” — that Juror H

made while being escorted away from the jury room.

¶ 26 Under step one of the Harper process, a district court must

determine whether the extraneous information has a potential for

unfair prejudice by considering, among other things, the likelihood

the jury was exposed to the information. Id. at 83-84. A court does

not abuse its discretion by declining to move on to Harper step two

and polling the jury if there is no reasonable likelihood that the jury

was exposed to the extraneous information. See Jacobson,

¶¶ 13-14.

¶ 27 The district court’s law clerk reported that, when Juror H

made the hallway statement, the door to the jury room was closed,

Juror H was not speaking louder than his normal voice, and it was

unlikely that the jurors heard anything. Neither party chose to

question the law clerk any further or to ask any of the eight jurors

who were subsequently questioned about Juror H’s restroom

statements if they heard the hallway statement. Thus, both parties

11
and the court appeared satisfied with the law clerk’s

representations and uninterested in any further inquiry.

¶ 28 Moreover, the record demonstrates that there is no reasonable

likelihood that the jurors heard the hallway statement.3 Eight of

the twelve jurors were questioned after the statement was made and

were asked, “[Juror H], the juror that has left, did he try to talk to

you about this case?” None of the eight jurors mentioned

overhearing Juror H’s hallway statement in response to the

question. Consequently, the district court was not obliged to move

on to Harper step two and make any further inquiry of the jurors

regarding the hallway statement. See id.

¶ 29 Accordingly, the court did not abuse its discretion by declining

to grant a mistrial on the basis of this statement either.

B. Merger

¶ 30 Finally, Vialpando contends, the People concede, and we agree

that his conviction for second degree aggravated motor vehicle theft

3 Even if the jury had overheard the statement, we do not see how it

would have been seriously prejudicial. Cf. People v. Bondurant,
2012 COA 50, ¶¶ 87-89 (holding that a judicial staff member
jokingly telling the jury, “He did it, he did it, he did it,” did not
establish that the jury was exposed to prejudicial information).

12
violates double jeopardy principles and therefore must merge into

his conviction for first degree aggravated motor vehicle theft.

¶ 31 We “review de novo a defendant’s claim that a conviction

violates the constitutional protection against double jeopardy.”

Whiteaker v. People, 2024 CO 25, ¶ 9 (quoting Garcia v. People,

2023 CO 41, ¶ 13).

¶ 32 The merger doctrine “gives effect to double jeopardy and seeks

to protect a defendant from being punished twice for a single

criminal act.” People v. Kirby, 2024 COA 20, ¶ 29. Under this

doctrine, “a defendant may not be convicted of two offenses for the

same conduct if the lesser offense is included in the greater.”

Page v. People, 2017 CO 88, ¶ 9; see § 18-1-408(1)(a), C.R.S. 2024.

“[A]n 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.”

Reyna-Abarca v. People, 2017 CO 15, ¶ 64. If we conclude that

such a violation occurred, the remedy is to remand for the lesser

offense to be merged into the greater offense. See Whiteaker,

¶¶ 23-24, 28-30.

13
¶ 33 Under the relevant version of the aggravated motor vehicle

theft statute, Vialpando committed first degree aggravated motor

vehicle theft by “knowingly obtain[ing] or exercis[ing] control over

the motor vehicle of another without authorization or by threat or

deception” and then using the motor vehicle “in the commission of a

crime other than a traffic offense.” § 18-4-409(2)(d), C.R.S. 2021.

And he committed second degree aggravated motor vehicle theft by

“knowingly obtain[ing] or exercis[ing] control over the motor vehicle

of another without authorization or by threat or deception.”

§ 18-4-409(4).

¶ 34 Every element of second degree aggravated motor vehicle theft

is also an element of first degree aggravated motor vehicle theft.

Therefore, second degree aggravated motor vehicle theft is a lesser

included offense of first degree aggravated motor vehicle theft. See

Reyna-Abarca, ¶ 64. Accordingly, Vialpando’s conviction for the

lesser offense must be merged into his conviction for the greater

offense. See Whiteaker, ¶¶ 24, 28-30.

III. Disposition

¶ 35 Vialpando’s conviction and sentence for second degree

aggravated motor vehicle theft are vacated and the case is

14
remanded to the district court to correct the mittimus. The

judgment of conviction is affirmed in all other respects.

JUDGE J. JONES and JUDGE BROWN concur.

15