Peo v. Rhoades

19CA1356 Peo v Rhoades 12-16-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA1356

El Paso County District Court No. 17CR6900

Honorable Larry E. Schwartz, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Manning Rhoades,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE DAILEY

Dunn and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced December 16, 2021

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Taylor Hoy, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, James Manning Rhoades, appeals the judgment of

conviction finding him guilty of felony driving under the influence

(DUI). We reverse and remand with directions.

I. Background

¶ 2 Around 10:50 p.m. on December 6, 2017, Officer Jeremy Lux

of the Colorado Springs Police Department responded to a report of

a suspicious vehicle parked in a dirt lot. The caller, who lived near

the lot, reported the vehicle had been in the lot for several hours.

Officer Lux discovered Rhoades sitting in the driver’s seat of his

flatbed Ford pickup with the truck’s motor running.

¶ 3 Upon questioning Rhoades, Officer Lux observed signs of

intoxication, detained Rhoades, and called another officer, Officer

Darin Beilfuss, to the scene to administer sobriety tests. At the

scene, Rhoades admitted to being intoxicated and submitted to

Horizontal and Vertical Gaze Nystagmus (HGN and VGN,

respectively) roadside sobriety tests, failing each. The police

arrested Rhoades, and about an hour later, he submitted to a blood

2

draw, which returned a blood alcohol level of 0.241 grams per

hundred milliliters — three times the legal limit.

1

¶ 4 At trial, Rhoades testified that he had been parked in the lot

since about 12:30 p.m. that day. Before stopping in the lot, he had

driven his son to a neighboring town and, upon returning,

purchased a bottle of liquor and drove to the lot. Rhoades was

homeless at the time, although he gave Officer Lux a home address.

He testified that he parked in the lot for lack of any other place to

go, and that he and his son had been there drinking until shortly

before Officer Lux arrived. According to Rhoades, he had not moved

or driven the vehicle since arriving at the lot and had run the

engine on and off throughout the day to stay warm.

¶ 5 Rhoades’s defense was that although he was intoxicated on

December 6, he did not drive the vehicle at any time after he began

drinking.

2

1

See § 42-4-1301 (6)(a)(III), C.R.S. 2021 (A person’s blood alcohol

content of “0.08 or more . . . gives rise to the permissible inference

that the defendant was under the influence of alcohol.”).

2

For DUI purposes, however, a person may “drive” a vehicle without

moving it in any way. See People v. Swain, 959 P.2d 426, 427

(Colo. 1998) (“[P]roof of actual physical control of a vehicle was

3

¶ 6 The jury found Rhoades guilty of DUI. Later, the trial court

held a separate hearing in which it found by a preponderance of the

evidence that Rhoades had four prior DUI convictions, only three of

which were required to elevate Rhoades’s DUI offense from a

misdemeanor to a felony. See § 42-4-1301(1)(a), C.R.S. 2021. The

court sentenced Rhoades to a term of three years of probation.

¶ 7 On appeal, Rhoades contends that the trial court reversibly

erred by (1) finding that he had four prior DUI convictions by a

preponderance of evidence rather than submitting the issue to the

jury to decide beyond a reasonable doubt; (2) concluding that the

evidence was sufficient to show that he had previously been

convicted four times of DUI; and (3) excluding certain evidence and

admitting certain evidence.

¶ 8 We address each contention in turn.

sufficient to establish that [a person] ‘drove’ a vehicle within the

meaning of [the alcohol-related driving offense statute section 42-4-

1301(1), C.R.S. 2021].”); Brewer v. Motor Vehicle Div., Dep’t of

Revenue, 720 P.2d 564, 566-67 (Colo. 1986) (holding that driving is

not limited to “placing and controlling a vehicle in motion”); People

v. Valdez, 2014 COA 125, ¶¶ 11-12 (For DUI purposes, driving does

not require “physical movement of a vehicle . . . .”).

4

II. Felony DUI

¶ 9 Rhoades contends that under the felony DUI statute, the prior

convictions are elements of the crime rather than sentence

enhancers. Thus, he was entitled to have a jury determine beyond

a reasonable doubt whether he had prior convictions for impaired-

driving offenses. We agree.

¶ 10 “DUI is ordinarily a misdemeanor, but it becomes felony DUI if

it occurs after three or more convictions for DUI, DUI per se, or

driving while ability impaired (DWAI).” People v. Carter, 2021 COA

29, ¶ 7 (citing § 42-4-1301(1)(a)). In Linnebur v. People, the

supreme court held that the existence of three or more prior

alcohol-related driving convictions is “a substantive element of

felony DUI,” which must “be tried to a jury and found beyond a

reasonable doubt”; it is “not a sentence enhancer to be found by the

court.” 2020 CO 79M, ¶ 31.

¶ 11 Because the court, rather than the jury, determined that

Rhoades had three or more prior alcohol-related driving convictions,

Rhoades was denied his right to a jury trial on all the elements of

felony DUI. See id. Consequently, Rhoades’s conviction for felony

DUI must be reversed.

5

III. Double Jeopardy /Sufficiency of Evidence

¶ 12 Rhoades next contends that the prosecution presented

insufficient evidence to link him to the four prior convictions at

issue in the case.

¶ 13 This issue is integrally intertwined with that of whether the

prosecution would, under double jeopardy principles, be permitted

to retry Rhoades for felony DUI. See McDonald v. People, 2021 CO

64, ¶ 61. Ordinarily, these issues would be reviewable on appeal.

Id.

¶ 14 But in Linnebur, ¶ 32, the supreme court held that if “the

prosecution seeks retrial of the felony DUI charge and Linnebur

raises a double jeopardy defense, the trial court must rule on that

defense.”

¶ 15 In People v. Tun, a division of this court declined to address a

sufficiency of evidence issue like the one raised here because (1)

inasmuch as the “prior convictions” issue was treated as sentence

enhancer, rather than an element of felony DUI, the trial court had

permitted the prosecution to proceed under a preponderance of

evidence standard; and (2) double jeopardy was to be decided, in

the first instance, by the trial court:

6

Under Linnebur, before the People can [re-]try

[the defendant] for felony DUI . . . , they must

first demonstrate that retrial is not barred by

constitutional double jeopardy limitations.

Only if they prevail on this issue in the trial

court can they attempt to prove, beyond a

reasonable doubt, that [the defendant] has

three prior DUI convictions.

Because the trial court has not yet ruled on

the double jeopardy challenge that will surely

be raised on retrial and the People have not yet

attempted to prove, beyond a reasonable

doubt, that [the defendant] has at least three

prior qualifying convictions, any opinion on

these issues would be advisory only. We must

avoid issuing such opinions. We therefore

decline to address the sufficiency of the

evidence of prior convictions . . . .

2021 COA 34, ¶¶ 21-22 (citations omitted).

¶ 16 Like the division in Tun, and for the same reasons, we too

decline to address the sufficiency of evidence issue presented here.

3

IV. Evidentiary Issues Affecting Rhoades’s Misdemeanor Conviction

¶ 17 Rhoades contends that the misdemeanor DUI conviction must

also be reversed because the court erroneously (1) allowed an officer

3

The supreme court currently has before it a case where, in

circumstances similar to those present here, the trial court denied a

motion to bar, on double jeopardy grounds, a second trial for felony

DUI. See People v. Viburg, (Colo. No. 21SA153, May 11, 2021)

(unpublished order).

7

to testify about HGN and VGN testing without qualifying the officer

to give expert testimony; and (2) precluded him from eliciting

evidence as to the underlying reason for the police responding to

the lot where Rhoades’s truck was. We disagree.

¶ 18 Because we review preserved challenges to a trial court’s

evidentiary ruling for an abuse of discretion, People v. Reed, 2013

COA 113, ¶ 31, we will not overturn such a ruling absent a showing

that it is either manifestly arbitrary, unreasonable, or unfair, People

v. Castro, 854 P.2d 1262, 1265 (Colo. 1993), or based on an

erroneous view of the law, People v. Moore, 226 P.3d 1076, 1081

(Colo. App. 2009).

A. Expert versus Lay Evidence

¶ 19 An officer testified that he had utilized HGN and VGN roadside

sobriety tests in assessing whether Rhoades was intoxicated. He

explained to the jury what those tests were and what certain

reactions signified.

¶ 20 “If the witness provides testimony that could be expected to be

based on an ordinary person’s experiences or knowledge, then the

witness is offering lay testimony. If, on the other hand, the witness

provides testimony that could not be offered without specialized

8

experiences, knowledge, or training, then the witness is offering

expert testimony.” Venalonzo v. People, 2017 CO 9, ¶ 22.

¶ 21 Rhoades correctly points out that the officer’s HGN and VGN

testimony is unquestionably expert, not lay, testimony. See

Campbell v. People, 2019 CO 66, ¶¶ 23-31 (HGN testimony).

¶ 22 The question here, though, is whether the trial court admitted

this evidence as lay rather than expert evidence.

¶ 23 As the officer attempted to explain one of the tests to the jury,

the following occurred:

OFFICER: So that test is, in layman’s terms,

you stand very still, don’t move your head, and

I move my finger back a few times and I watch

your eyes. There’s very specific clues for

alcohol impairment.

DEFENSE COUNSEL: Objection, Your Honor.

Improper opinion. Calls for expert testimony.

THE COURT: Are you offering him as having

specialized knowledge?

PROPSECUTOR: Yes, Your Honor, in

administering the roadside tests.

THE COURT: Then it is proper opinion.

PROSECUTOR: You can go ahead and answer.

9

¶ 24 Defense counsel made no further objections to this witness’s

testimony.

¶ 25 We need not decide whether the court’s conclusion

represented a determination that the officer was giving, much less

was qualified to give, expert testimony.

¶ 26 Rhoades does not argue that the officer was unqualified to give

expert opinion evidence on HGN and VGN testing.

4

He does,

however, argue that the officer should have been endorsed as an

expert prior to trial to allow him an opportunity to contest the

officer’s testimony.

¶ 27 Rhoades did not argue in the trial court that the officer needed

to have been endorsed as an expert. Nor did he argue he was

surprised by, or needed a continuance to refute, the officer’s

testimony. His “failure to request a continuance belies any claim

that he was surprised or prejudiced by the detective’s testimony.”

People v. Brown, 313 P.3d 608, 617 (Colo. App. 2011).

4

The officer testified that he has received training on nationally

standardized sobriety testing — including VGN and HGN testing —

in Michigan and Colorado and is certified to administer these tests.

He must annually recertify and complete continuing education

requirements.

10

¶ 28 Further, any error in admitting the officer’s testimony (as

either lay testimony or as unendorsed or unqualified expert

testimony) was harmless.

¶ 29 “[E]videntiary rulings are subject to the nonconstitutional

harmless error standard.” People v. Carian, 2017 COA 106, ¶ 41.

Under that standard, to avoid reversal the People must show that

the error did not substantially influence the verdict or affect the

fairness of the trial proceedings. James v. People, 2018 CO 72,

¶ 19.

¶ 30 An error substantially influences the verdict or affects the

fairness of the proceedings where there is a reasonable probability

that the error contributed to a defendant’s conviction. People v.

Casias, 2012 COA 117, ¶ 61. “‘[A] reasonable probability’ does not

mean that it is ‘more likely than not’ that the error caused the

defendant’s conviction,” rather, “it means only a probability

sufficient to undermine confidence in the outcome of the case.” Id.

at ¶ 63 (quoting Krutsinger v. People, 219 P.3d 1054, 1060 n.3

(Colo. 2009)).

¶ 31 Any error committed by the trial court here was harmless for

the same reasons identified by the supreme court in Campbell.

11

There, the testimony of the officer who administered the defendant’s

roadside sobriety tests was improperly admitted as lay witness

evidence. Campbell, ¶¶ 23-26. The defendant’s defense in that

case was that, although he admitted he had been drinking, he had

only done so after being pulled over. Id. at ¶ 16. Here, Rhoades’s

defense was also that, although he had been drinking, he had only

done so after parking his vehicle. Similar to the circumstances in

Campbell,

• the evidence of Rhoades’s intoxication was

“overwhelming”;

• among other things, he had an odor of alcohol on his

breath, bloodshot eyes, and slurred speech;

• Rhoades was unable to stand up, for purposes of

completing other roadside sobriety tests;

• the officers on the scene found an empty liquor bottle in

Rhoades’s vehicle;

• during his conversation with the responding officer,

Rhoades admitted he’d consumed alcohol; and

• Rhoades’s blood alcohol test returned a BAC of .241 —

well over the legal limit.

12

See id. at ¶¶ 38, 40.

¶ 32 Because, as in Campbell, the evidence “overwhelmingly

supported the jury’s determination that [Rhoades] drove while his

ability was impaired by alcohol, . . . any error . . . was harmless.”

See id. at 41.

B. Responding to a Call About a Suspicious Vehicle

¶ 33 The prosecution elicited evidence that Officer Lux went to the

lot where Rhoades’s truck was parked in response to a call involving

a “suspicious” vehicle. Concerned that the jury might speculate

about why Rhoades’s truck was considered a “suspicious” vehicle,

Rhoades requested that he be allowed to elicit the reason why his

vehicle was considered “suspicious.” The reason was the length of

time (“several hours”) a citizen reported the truck as having been

parked in the lot. The trial court denied Rhoades’s request because

the evidence would’ve introduced inadmissible hearsay into the

case.

¶ 34 In our view, the court erred by precluding Rhoades from

eliciting the desired evidence. By presenting evidence that Officer

Lux went to the lot to check out a “suspicious” vehicle, the

prosecution opened the door to other evidence explaining the

13

reason why the police were sent to check on a “suspicious” vehicle.

See People v. Tenorio, 197 Colo. 137, 146, 590 P.2d 952, 958 (1979)

(A party’s presentation of evidence can create for the opposing party

“a right to explain or rebut any adverse inferences which might

have resulted . . . .”).

¶ 35 And, contrary to the trial court’s perception, out of court

statements evidencing the reason why police took certain action is

not inadmissible hearsay. See People v. Barajas, 2021 COA 98,

¶ 52 (“An out-of-court statement is not hearsay if it is offered for

some other purpose, such as to provide context for other actions, to

show its effect on the listener, or to explain why a government

investigation was undertaken.”); see also Tenorio, 590 P.2d at 958

(“None of the above statements by the officers were inadmissible

hearsay. They were elicited only to establish the officers’ reasons

for initially going to the park and for drawing their guns after arrival

there.”); People v. Robinson, 226 P.3d 1145, 1151-53 (Colo. App.

2009) (officer’s references to informant’s out-of-court statements to

explain the reasons for investigation are not hearsay).

14

¶ 36 The question, at this point, is whether the court’s error

requires reversal. Under Crim. P. 52(a), we disregard a harmless

error.

¶ 37 ‘“[T]he single most important factor’ in a nonconstitutional

harmless error inquiry is whether the case was ‘close.’” Casias,

¶ 69 (quoting United States v. Ince, 21 F.3d 576, 584 (4th Cir.

1994)).

[A]ppellate assessment of the “closeness” of an

issue as it probably appeared to a jury is of

course a highly judgmental process, involving

much more of feel than of science. While

assessing closeness necessarily requires

looking to the probative force of other evidence

tending to prove the issue, that . . . is not for

the purpose of determining whether, if

independently considered, that evidence would

have sufficed to convict. The inquiry into

“closeness” instead involves assessing whether

the other evidence is not only sufficient to

convict, but whether it is sufficiently powerful

in relation to the tainted evidence to give “fair

assurance” that the tainted evidence did not

“substantially sway” the jury to its verdict.

Id. (quoting Ince, 21 F.3d at 584).

¶ 38 As indicated above, this case was not “close.” In closing

argument, Rhoades’s counsel conceded that Rhoades was severely

impaired: “Ladies and gentlemen of the jury, we’re not here to

15

contest that [Rhoades] was not drunk. He was drunk. He was

wasted.” His defense, though, was that he drank after he had

finished driving.

¶ 39 But, under the DUI statute, “driving” does not require

“physical movement of a vehicle . . . .” Valdez, ¶¶ 11-12. It only

requires “‘actual physical control’ of a vehicle.” Swain, 959 P.2d at

431 (citation omitted).

¶ 40 On cross-examination, Rhoades admitted that (1) he was

drunk; (2) he was in control of his truck; and (3) his truck’s engine

was running. In admitting these matters, Rhoades confessed to

committing misdemeanor DUI. See Swain, 959 P.2d at 427, 431

(upholding a conviction for DWAI — a lesser included offense of DUI

— of an intoxicated individual found “either asleep or passed out, in

the front seat, . . . with his feet near the driver’s side door and his

head resting towards the passenger’s side door,” with the “keys . . .

in the ignition” and the engine turned off); see also Smith v.

Charnes, 728 P.2d 1287, 1292 (Colo. 1986) (holding the defendant

exercised actual physical control of the vehicle when he was

intoxicated and found asleep or unconscious behind the wheel of a

stopped vehicle, with the engine running and the lights on).

16

¶ 41 Under the circumstances, the exclusion of the neighbor’s

report that the truck had been parked for hours was

inconsequential. Why the neighbor called the police didn’t negate

Rhodes’s testimony that established misdemeanor DUI. And, in any

event, Rhoades himself testified that his truck had been parked in

the lot for ten hours.

¶ 42 Under the circumstances, we conclude that there was no

reasonable probability that the court’s evidentiary error contributed

to Rhoades’s misdemeanor DUI conviction. Consequently, reversal

of that conviction is not warranted.

V. Disposition

¶ 43 The judgment of conviction of felony DUI is reversed and the

matter is remanded to the trial court for further proceedings. If the

prosecution seeks to retry Rhoades on the felony DUI charge and

Rhoades raises double jeopardy issues, the trial court must rule on

those issues and determine whether retrial is constitutionally

permissible. If the People do not elect to retry Rhoades on the

charge of felony DUI, the trial court shall enter a conviction and

sentence for misdemeanor DUI.

JUDGE DUNN and JUDGE KUHN concur.