Peo in Interest of DRM

Opinion

23CA1493 Peo in Interest of DRM 04-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1493 Larimer County District Court Nos. 23JD54 & 23JD74 Honorable Cara M. Boxberger, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of D.R.M.,

Juvenile-Appellant.

JUDGMENT AFFIRMED

Division I Opinion by JUDGE BROWN J. Jones and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 24, 2025

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Petitioner-Appellee

The Juba Law Office, PLLC, Madison R. Whitley, Denver, Colorado, for Juvenile-Appellant ¶1 D.R.M. appeals his adjudications of delinquency in Larimer

County Case Nos. 23JD54 and 23JD74. He contends that the

juvenile court erred by (1) granting the prosecution’s motion to join

the two cases; (2) denying his motion to suppress certain

statements he made; and (3) denying his motion to suppress

evidence obtained from a search of his backpack following his arrest

for an unrelated incident. We affirm.

I. Background

¶2 The People charged D.R.M. in two separate cases. In Case No.

23JD54, the People charged D.R.M. for conduct that, if committed

by an adult, would constitute misdemeanor criminal mischief under

section 18-4-501(1), (4)(c), C.R.S. 2024, for graffitiing Centennial

High School in Fort Collins. In Case No. 23JD74, the People

charged D.R.M. for conduct that, if committed by an adult, would

constitute felony criminal mischief under section 18-4-501(1), (4)(d),

for graffitiing parts of Old Town Fort Collins and misdemeanor

1 criminal mischief under 18-4-501(1), (4)(a),1 for graffitiing various

locations around Colorado State University (CSU). On the

prosecution’s motion, and after a hearing, the juvenile court joined

the two cases for trial.

¶3 After a two-day bench trial, the court found D.R.M. (1) guilty of

misdemeanor criminal mischief for the graffiti at Centennial High

School; (2) guilty of the lesser included petty offense of criminal

mischief for the graffiti in Old Town; and (3) not guilty of any offense

with respect to the graffiti at CSU. The court imposed concurrent

forty-five-day sentences for each conviction and found that D.R.M.

was entitled to forty-five days of presentence confinement credit.

II. Joinder

¶4 D.R.M. contends that the juvenile court erred by joining Case

Nos. 23JD54 and 23JD74 for trial. We disagree.

1 For this conduct, the People originally charged D.R.M. with one

count of misdemeanor criminal mischief under section 18-4-501(1), (4)(b), C.R.S. 2024, but at the conclusion of trial, the prosecution moved for, and the court granted, an amendment of the charge to cite section 18-4-501(1), (4)(a).

2 A. Applicable Law and Standard of Review

¶5 Unless consolidation would result in prejudice within the

meaning of Crim. P. 14, a trial court may order two or more

criminal complaints to be tried together if the offenses could have

been joined in a single complaint under Crim. P. 8(a)(2). Crim. P.

13; Buell v. People, 2019 CO 27, ¶ 13; People v. Gregg, 298 P.3d

983, 985 (Colo. App. 2011). Rule 8(a)(2) allows for permissive

joinder of two or more offenses that “are of the same or similar

character or are based on two or more acts or transactions

connected together or constituting parts of a common scheme or

plan.” And Rule 14 provides, in relevant part, that “[i]f it appears

that a defendant . . . is prejudiced by a joinder of offenses . . . for

trial together, the court may order an election or separate trials of

counts . . . or provide whatever other relief justice requires.”

¶6 We review a trial court’s decision to consolidate charges under

Crim. P. 13 for an abuse of discretion. Buell, ¶ 14. A court abuses

its discretion when its ruling is manifestly arbitrary, unreasonable,

or unfair or when it misapplies the law. People in Interest of E.R.,

2018 COA 58, ¶ 6. “Reversal on the basis of the consolidation of

offenses is not justified unless the defendant demonstrates actual

3 prejudice as a result of the [trier of fact’s] inability to separate the

facts and legal theories applicable to each offense.” Gregg, 298 P.3d

at 985-86; see also People v. Knight, 167 P.3d 147, 151 (Colo. App.

2006). A defendant cannot show actual prejudice if the evidence of

each offense would have been admissible in separate trials, for

instance, under CRE 404(b). Buell, ¶¶ 31-33; Gregg, 298 P.3d at

986.

B. Additional Background

¶7 Before the trial, the prosecution moved to join Case Nos.

23JD54 and 23JD74 arguing that joinder was appropriate under

Crim. P. 13 and Crim. P. 8(a)(2) because the offenses were of the

same or similar character or constituted parts of a common plan or

scheme. With regard to Case No. 23JD54, the prosecution

explained that surveillance footage showed two individuals, later

identified as D.R.M. and L.F., graffitiing several buildings at

Centennial High School in the early morning hours of February 7,

2023. The graffiti was created in black marker or black paint pen

and had “distinctive characteristics,” such as bubbly or stylized

letters along with repeated unique combinations of letters. The

prosecution also argued that “[t]he lack of any apparent pattern or

4 message in the graffiti [wa]s, in itself, a discernable pattern.” When

officers contacted D.R.M. at his home later that day, he admitted to

writing the graffiti and was wearing clothes similar to those worn by

one of the suspects in the surveillance footage.

¶8 With regard to 23JD74, the prosecution explained that

between March 14 and 18, 2023, CSU employees discovered several

places on campus that had been defaced with yellow and blue spray

paint. Between March 19 and 21, surveillance footage showed an

individual graffitiing various locations around Old Town. The

graffiti in Old Town was primarily written in hot pink spray paint,

but some parts featured yellow or blue spray paint and black paint

or marker. The prosecution argued that “the similarity of the

writing, the distinctive characteristics of certain letters, the

repeated letter combinations[,] . . . and the lack of any cohesive

message” allowed the police to connect D.R.M. to the CSU and Old

Town graffiti incidents.

¶9 On March 21, police officers arrested D.R.M. in an unrelated

incident and found two cans of hot pink spray paint in his

backpack. One of the arresting officers viewed the surveillance

footage of the graffiti suspect in Old Town from earlier that day and

5 noted that, when D.R.M. was arrested, he was wearing the same

clothing as the individual in the video. The officer also learned that

D.R.M. was under investigation for graffitiing Centennial High

School and “found unmistakable similarities in the style of the

graffiti” among the CSU, Old Town, and Centennial High School

incidents.

¶ 10 The prosecution argued that the cases were so closely related

in time and nature that it could dismiss Case No. 23JD54 and refile

the same charges into Case No. 23JD74. The prosecution also

argued that a single trial would be a more efficient use of judicial

resources. Lastly, the prosecution argued that the evidence from

Case No. 23JD54 would be cross-admissible in Case No. 23JD74

under CRE 404(b) to prove identity, show a common scheme or

plan, or establish that D.R.M. knowingly committed the offenses

charged.

¶ 11 After a motions hearing, the court determined that joinder

under Crim. P. 8(a)(2) was appropriate because the offenses were of

the same or similar character, based on two or more acts or

transactions connected together, or constituted parts of a common

scheme or plan. Relying heavily on the prosecution’s motion, the

6 court determined that evidence from Case No. 23JD54 could be

admitted in Case No. 23JD74 under CRE 404(b). Thus, the court

granted the prosecution’s motion to join the two cases.2

C. The Juvenile Court Did Not Err by Joining the Two Cases

¶ 12 D.R.M. contends that the juvenile court erred by joining Case

Nos. 23JD54 and 23JD74 because (1) the offenses were not the

same or similar in character, connected together, or related parts of

a common plan or scheme; and (2) even if joinder was proper, the

consolidation resulted in prejudice. We are not persuaded.

1. Similarity

¶ 13 D.R.M. contends that the juvenile court erred by joining the

two cases because the charged crimes were not similar enough. He

points out that the graffiti locations were different, the perpetrator

used different tools in each location (colored spray paint versus

black paint or marker), and the incidents occurred more than a

month apart.

2 To the extent D.R.M. contends that the juvenile court could not

rely on the prosecution’s motion to support its decision to consolidate the cases but was required to rely only on evidence received at the motions hearing, he cites no supporting authority.

7 ¶ 14 When assessing whether two cases are of the “same or similar

character,” courts consider “the elements of the offenses at issue,

the temporal proximity of the underlying acts, the likelihood that

the evidence will overlap, the physical location of the acts, the

modus operandi of the crimes, and the identity of the victims.”

Bondsteel v. People, 2019 CO 26, ¶ 38. A court may also join

“offenses committed at different times and places but constituting

part of a schematic whole.” People v. Kendall, 174 P.3d 791, 795

(Colo. App. 2007).

¶ 15 Here, D.R.M. admitted to graffitiing Centennial High School on

February 7. The Old Town and CSU graffiti incidents (1) occurred

within six weeks; (2) occurred in the same general area in Fort

Collins; (3) involved graffiti with unique letter combinations and

distinctive styling similar to the Centennial High School graffiti; and

(4) used pink spray paint, yellow and blue spray paint, and/or

black marker or paint. Based on this evidence, we perceive no

abuse of discretion in the juvenile court’s conclusion that the

offenses were of the same or similar character or constituted part of

a common scheme or plan. See Crim. P. 8(a)(2); Bondsteel, ¶ 40

(the trial court did not reversibly err by joining two cases when the

8 offenses all involved assaults of women threatened with a weapon in

isolated open-air spaces that occurred within a six-month period

and involved an assailant who attempted to remove the women’s

clothing); Gregg, 298 P.3d at 986 (affirming consolidation of three

robbery cases that occurred within months of each other and

involved handwritten death threats and a robber who kept his hand

in his jacket pocket or carried a bag he said contained dynamite).

2. Prejudice

¶ 16 D.R.M. also contends that the juvenile court erred because

even if joinder was proper under Crim. P. 8(a)(2), it was still

prejudicial under Crim. P. 14. But D.R.M. fails to demonstrate

actual prejudice because (1) evidence of each incident would have

been cross-admissible in separate trials; and (2) he has not shown

that the court, as the trier of fact, was unable to separate the facts

and legal principles of each offense. See Washington v. People, 2024

CO 26, ¶ 37 (“The defendant bears the burden of demonstrating

(1) ‘actual prejudice’ caused by the joinder and (2) ‘that the trier of

fact was unable to separate the facts and legal principles applicable

to each offense.’” (quoting Bondsteel, ¶ 59)); Buell, ¶¶ 31-33; Gregg,

298 P.3d at 986.

9 ¶ 17 Under CRE 404(b), evidence of “any other crime, wrong, or act

is not admissible to prove a person’s character in order to show that

on a particular occasion the person acted in conformity with the

character” but may be admissible “for another purpose, such as

proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.” Still, admissibility

of other act evidence must be analyzed under the four-part test set

forth in People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). Under

Spoto, other act evidence is admissible if (1) the evidence relates to

a material fact; (2) the evidence is logically relevant; (3) the logical

relevance is independent of the prohibited intermediate inference

that the defendant was acting in conformity with his bad character;

and (4) the probative value of the evidence is not substantially

outweighed by the danger of unfair prejudice. Id.

¶ 18 We review a trial court’s ruling on the admissibility of evidence

under CRE 404(b) for an abuse of discretion. Bondsteel, ¶ 45. In

deference to the district court’s decision to admit the evidence, we

assume its maximum probative value and its minimum unfair

prejudice. Yusem v. People, 210 P.3d 458, 467 (Colo. 2009).

10 ¶ 19 The evidence that would have been presented in a separate

trial in Case No. 23JD54 primarily consisted of body camera footage

of D.R.M. admitting that he graffitied Centennial High School,

surveillance footage of the perpetrator wearing a hoodie and dark

jacket, and photographs of the distinctive graffiti created with black

marker. This evidence would have made it more likely that D.R.M.

was the person who committed the offenses charged in 23JD74.

D.R.M. admitted he graffitied Centennial High School. The

perpetrator shown in the surveillance video, who was graffitiing Old

Town on March 21, wore a hoodie and dark jacket similar to what

D.R.M. was wearing in the Centennial High School surveillance

video. And there were similarities in the graffiti style and tools used

at Centennial High School compared to those used at Old Town and

CSU.

¶ 20 The prosecution offered this evidence in Case No. 23JD74 to

establish identity, a common plan or scheme, and knowledge. The

juvenile court found by a preponderance of the evidence that the

incident charged in Case No. 23JD54 occurred and demonstrated a

common plan or scheme between the two cases. The court also

determined that the evidence was logically relevant to a material

11 issue, independent of character, and that its prejudicial effect did

not substantially outweigh its probative value.

¶ 21 D.R.M. argues that the evidence was unfairly prejudicial only

because the “logical inference when taking these incidents into

account is that [D.R.M.] has a penchant for committing vandalism.”

But Spoto does not require the absence of the prohibited character

inference; it requires only that the evidence is offered for a proper

purpose that is independent of that inference. People v. Jones, 2013

CO 59, ¶ 16. And the purposes for which the evidence was offered

and admitted — identity and common scheme or plan — are

appropriate non-propensity purposes. See CRE 404(b)(2). D.R.M.

does not otherwise explain why the probative value of the evidence

was substantially outweighed by the danger of unfair prejudice.

See Masters v. People, 58 P.3d 979, 1001 (Colo. 2002) (“Relevant

evidence is inherently prejudicial; but it is only unfair prejudice,

substantially outweighing probative value, which permits exclusion

of relevant matter . . . .” (quoting United States v. McRae, 593 F.2d

700, 707 (5th Cir. 1979))); People v. Rath, 44 P.3d 1033, 1043 (Colo.

2002) (“[U]nfair prejudice within the meaning of the rule still refers

only to ‘an undue tendency on the part of admissible evidence to

12 suggest a decision made on an improper basis’ and does not mean

prejudice that results from the legitimate probative force of the

evidence.” (quoting People v. Gibbens, 905 P.2d 604, 608 (Colo.

1995))).

¶ 22 In addition, the juvenile court was clearly able to separate the

facts and legal principles of each offense. See Gregg, 298 P.3d at

985-86; Knight, 167 P.3d at 151. The court found D.R.M. guilty as

charged in Case No. 23JD54, primarily because D.R.M. admitted to

graffitiing Centennial High School. But in Case No. 23JD74, the

court found D.R.M. guilty of only a lesser included offense related to

Old Town and not guilty of the offense related to CSU. It explained

that the person seen in the surveillance footage graffitiing a

concrete bench in Old Town was wearing the same clothes as

D.R.M. when he was arrested for a separate incident, so it found

beyond a reasonable doubt that D.R.M. was responsible for that

damage. But it rejected the balance of the charges in large part

because it found the similarities between the graffiti “not . . . nearly

as clear as argued by the People.”

¶ 23 For these reasons, we conclude that D.R.M. has failed to show

actual prejudice stemming from the consolidation. See Buell,

13 ¶¶ 31-33; Gregg, 298 P.3d at 986. Thus, we conclude that the

juvenile court did not abuse its discretion by consolidating the two

cases.

III. Motions to Suppress

¶ 24 D.R.M. contends that the juvenile court erred by denying his

pretrial motions to suppress statements and evidence. We discern

no error.

A. Standard of Review

¶ 25 “A trial court’s suppression order presents a mixed question of

law and fact.” People v. N.A.S., 2014 CO 65, ¶ 5 (quoting People v.

McIntyre, 2014 CO 39, ¶ 13). We defer to the court’s historical

findings of fact if they are supported by competent record evidence,

but we review the legal effect of those facts de novo. Id.

B. Motion to Suppress Statements

¶ 26 D.R.M. contends that the court erred by denying his pretrial

motion to suppress statements he made during police contact

because they (1) were made while he was in custody without a

parent or guardian present in violation of the Children’s Code,

section 19-2.5-203(1), C.R.S. 2024; and (2) were involuntary. We

disagree.

14 1. Applicable Law

¶ 27 It is fundamental that a suspect’s statements during a

custodial interrogation are inadmissible unless (1) they are

voluntary; (2) police provide Miranda warnings; and (3) the suspect

validly waives their Miranda rights. N.A.S., ¶ 6 (citing Miranda v.

Arizona, 384 U.S. 436, 444 (1966)). For juveniles, the Children’s

Code adds an additional layer of protection. Under section

19-2.5-203(1), any “statement or admission of a juvenile made as a

result of the custodial interrogation of the juvenile by a law

enforcement official concerning delinquent acts alleged to have been

committed by the juvenile are not admissible in evidence against

the juvenile,” unless a parent or guardian is present and informed

of the juvenile’s Miranda rights, and those rights are validly waived.

See People v. Lehmkuhl, 117 P.3d 98, 102 (Colo. App. 2004)

(analyzing section 19-2-511, C.R.S. 2004 (repealed and relocated to

section 19-2.5-203, effective Oct. 1, 2021), which is substantially

similar to the current statute).

¶ 28 However, neither Miranda nor the “special statutory

protections” of the Children’s Code apply if the juvenile is not in

custody and being interrogated. People v. Howard, 92 P.3d 445,

15 449 (Colo. 2004); see § 19-2.5-203(1). Thus, any statements a

juvenile makes out of custody are admissible so long as they are

voluntary. Howard, 92 P.3d at 449.

2. Additional Background

¶ 29 Before trial, D.R.M. filed a motion to suppress statements he

made when contacted by Corporals Weis and Sargent, arguing that

the statements were (1) taken without a parent present during a

custodial interrogation, in violation of section 19-2.5-203; and

(2) given involuntarily. The court reviewed Corporal Weis’ body

camera footage, which had captured the interaction. And it held a

hearing at which Corporal Weis testified.

¶ 30 The evidence established that, on February 7, Corporals Weis

and Sargent contacted D.R.M. at his home in an apartment

building. Both officers were dressed in uniform and carried

holstered weapons. When D.R.M. answered the door to a vestibule

outside his apartment, Corporal Weis first introduced himself and

Corporal Sargent as officers working with the school resource office.

Corporal Weis shook D.R.M.’s hand, while Corporal Sargent fist-

bumped D.R.M.

16 ¶ 31 As the juvenile court found, the officers “stayed a distance

away” from D.R.M. Corporal Weis then told D.R.M. that they were

there to discuss a tagging incident at Centennial High School and

that D.R.M.’s name had “come up.” They told D.R.M. they were

trying to gather information about what happened. D.R.M. initially

responded, “No comment right now,” but then immediately said that

he had been walking around the school the night before.

¶ 32 D.R.M. stepped outside to let another resident leave the

complex and stood next to the side of the apartment building on the

sidewalk while continuing the conversation with the officers.

Corporal Weis said that he knew D.R.M. was with L.F. at the school

and that the security cameras had captured clear footage of the

incident. Corporal Weis explained that some of the writing “freaked

out the staff.” D.R.M. responded, “We have different handwriting.”

Corporal Weis then asked D.R.M. if he was “over there at all,” and

D.R.M. admitted that he graffitied a door but said he only wrote

positive messages.

¶ 33 Corporal Weis asked D.R.M. how old he was, and when D.R.M.

responded that he was seventeen, the Corporal asked D.R.M. to get

his father. D.R.M. went inside the apartment building, closed the

17 door behind him, and then opened the door again a few moments

later to let officers know that his father did not want to speak with

them. Corporal Weis let D.R.M. know he would likely be charged

for writing on the side of a school building, to which D.R.M.

responded, “That’s fair.” Corporal Weis again asked to speak with

D.R.M.’s father. Eventually, D.R.M.’s father spoke to the officers.

¶ 34 The juvenile court found that the entire interaction lasted

about ten minutes; there was no restraint placed on D.R.M.; each

participant’s tone was conversational; some of D.R.M.’s statements

were unsolicited; D.R.M.’s movement was not limited in any way;

and D.R.M. moved freely between the foyer, his apartment, and

outside the building. The court determined that D.R.M. was not in

custody when he made the statements, so section 19-2.5-203 did

not apply. The court also determined that D.R.M.’s statements

were voluntary. Consequently, the court denied the motion to

suppress.

3. D.R.M. Was Not in Custody

¶ 35 D.R.M. contends that the juvenile court erred by concluding

that he was not in custody because the court failed to consider his

18 age when evaluating whether a reasonable person in D.R.M.’s

position would have felt free to leave. We disagree.

¶ 36 To determine if a defendant was in custody, a court must

analyze whether “a reasonable person in the [suspect’s] position

would consider himself to be deprived of his freedom of action to the

degree associated with a formal arrest,” based on the totality of the

circumstances. N.A.S., ¶ 8 (alteration and emphasis in original)

(quoting People v. Begay, 2014 CO 41, ¶ 13). We examine the

following nonexhaustive factors:

1. the time, place, and purpose of the encounter;

2. the persons present during the interrogation;

3. the words spoken by the officer to the defendant;

4. the officer’s tone of voice and general demeanor;

5. the length and mood of the interrogation;

6. whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation;

7. the officer’s response to any questions asked by the defendant;

19 8. whether directions were given to the defendant during the interrogation; and

9. the defendant’s verbal or nonverbal response to such directions.

Id. (quoting Begay, ¶ 17). In the juvenile context, courts must also

consider the juvenile’s age. Id. at ¶ 9.

¶ 37 Our independent review of Corporal Weis’ bodycam footage

aligns with the juvenile court’s findings and its conclusion that

D.R.M. was not in custody. See People v. Kutlak, 2016 CO 1, ¶ 13

(A reviewing court “may undertake an independent review of the

audio or video recording to determine whether the statements were

properly suppressed in light of the controlling law” when the facts

in the recording are undisputed.). True, Corporals Weis and

Sargent were in full uniform with holstered weapons when they

contacted D.R.M., and they told D.R.M. that they were investigating

instances of graffiti that could result in charges. But those facts,

standing alone, are insufficient to support a determination that

D.R.M. was in custody. On the contrary, under the totality of the

circumstances, a reasonable person in D.R.M.’s position would not

consider himself to be deprived of his freedom of action to the

degree associated with a formal arrest. See N.A.S., ¶ 8.

20 ¶ 38 We recognize that the court did not explicitly say how D.R.M.’s

age factored into its determination that he was not in custody. See

id. at ¶ 9. But this is a juvenile case, and D.R.M.’s age at the time

of the encounter — seventeen — is undisputed. Because we review

de novo the legal effect of the facts on the custody determination,

see id. at ¶ 5, we can independently consider whether D.R.M.’s age

undermines the juvenile court’s custody determination. We

conclude it does not.

¶ 39 Juveniles who lack age and experience may feel intimidated

when confronted by police officers, but “a juvenile’s fear and

ignorance as to [their] ability to cease the questioning and leave”

does not necessarily lead to a finding that they were in custody.

People in Interest of J.C., 844 P.2d 1185, 1190 (Colo. 1993). The

juvenile’s age is not dispositive; “rather, courts should weigh it

alongside other relevant factors to ascertain whether the juvenile

was in custody.” N.A.S., ¶ 9.

¶ 40 D.R.M. was seventeen — about fifty-six days away from his

eighteenth birthday — when he spoke to Corporals Weis and

Sargent. He spoke candidly with the officers. He did not seem

confused, intimidated, or scared. And he moved freely in and out of

21 his home. In short, nothing about the contact between D.R.M. and

the officers suggests that D.R.M. believed he was under arrest.

Accordingly, we discern no error in the court’s determinations that

D.R.M. was not in custody or that section 19-2.5-203 did not

preclude admission of his statements. See id. at ¶ 14.

4. D.R.M.’s Statements Were Voluntary

¶ 41 D.R.M. also contends that the juvenile court erred by

admitting his statements because they were involuntary. Again, we

are not persuaded.

¶ 42 To determine whether a statement is voluntary, a court must

decide “whether, under the totality of the circumstances, the

behavior of the official was coercive so as to overbear the

defendant’s will in making the statements.” People v. Zadran, 2013

CO 69M, ¶ 10. The only specific argument D.R.M. makes regarding

voluntariness is that the officers did not give him a Miranda

warning, and he did not waive his Miranda rights. But an officer’s

failure to give a Miranda warning is only one factor a court analyzes

when determining voluntariness, and “such a violation does not per

se render a statement involuntary.” N.A.S., ¶ 17. D.R.M. does not

identify anything else about the circumstances that would suggest

22 coercion. See id. at ¶ 19 (identifying the nonexhaustive factors a

court considers in determining whether police conduct was

coercive). Considering the totality of the circumstances, we

conclude that D.R.M.’s statements were voluntary. See id. As a

result, we conclude that the juvenile court did not err by denying

D.R.M.’s motion to suppress.

C. Motion to Suppress Evidence from the Search Incident to Arrest

¶ 43 D.R.M. next contends that the juvenile court erred by denying

his motion to suppress evidence obtained during a search incident

to his arrest for an unrelated offense because police lacked a

reasonable suspicion justifying their investigatory stop,3 and the

court failed to make an initial finding that the seizure of D.R.M was

lawful. We perceive no error.

1. Applicable Law

¶ 44 The Fourth Amendment of the United States Constitution and

article II, section 7, of the Colorado Constitution prohibit

3 Although police arrested him, D.R.M. does not contend that police

lacked probable cause to do so. Instead, he argues that police lacked a reasonable articulable suspicion to conduct an investigatory stop. See People v. Dacus, 2024 CO 51, ¶ 26. Because D.R.M. focuses on reasonable suspicion, we do too.

23 unreasonable searches and seizures. People v. Allen, 2019 CO 88,

¶ 15. “[I]nvestigatory stops are seizures that implicate Fourth

Amendment protections.” People v. Dacus, 2024 CO 51, ¶ 26.

Although an officer must have probable cause to arrest a suspect,

an investigatory stop is “justified when the police have ‘a reasonable

articulable suspicion that the defendant is involved in criminal

activity.’” Id. (quoting People v. Martinez, 200 P.3d 1053, 1057

(Colo. 2009)). Reasonable suspicion is a “less demanding standard”

than probable cause “in the sense that it can be established with

information that is different in quantity or content . . . but also in

the sense that reasonable suspicion can arise from information that

is less reliable than that required to show probable cause.” People

v. Polander, 41 P.3d 698, 703 (Colo. 2001).

2. Additional Background

¶ 45 Before trial, D.R.M. filed a motion to suppress evidence

obtained from a search of his backpack incident to his arrest for an

unrelated incident. D.R.M. argued that his seizure was unlawful

and therefore all evidence obtained as a result should be

suppressed.

24 ¶ 46 The juvenile court held a hearing to address the motion. Two

arresting officers testified. Officer Brittingham testified that he

responded to a report of a burglary in progress. The reporting party

said that his son was attempting to break into his residence. The

officer also had information about an assault that had occurred at

the residence the night before. Officer Brittingham arrived at the

scene, saw D.R.M., and told him to stop. When D.R.M. attempted

to flee on his bike, the officer forcibly pushed him off and

immediately placed him in custody. D.R.M. told officers that he had

two weapons — a machete and a gun — on his person. Officer

Menn testified that he searched the backpack that D.R.M. had been

wearing and found two cans of pink spray paint.

¶ 47 The court found that D.R.M. was wearing the backpack when

he was arrested and had admitted to carrying weapons. The court

determined that the search of the backpack was incident to

D.R.M.’s arrest and that D.R.M. had lost any expectation of privacy

for the backpack when he was arrested. Defense counsel did not

object to the court’s failure to make an initial determination that

the seizure of D.R.M. was lawful or otherwise ask the court to make

that determination.

25 3. Preservation

¶ 48 The People argue that D.R.M. waived or abandoned the right

to challenge the juvenile court’s failure to rule on the lawfulness of

D.R.M.’s seizure by failing to obtain a ruling on the issue.

Alternatively, the People contend that D.R.M.’s contention is

forfeited and subject to plain error review.

¶ 49 “[W]aiver” is “the intentional relinquishment of a known right

or privilege.” People v. Smith, 2024 CO 3, ¶ 18 (quoting People v.

Rediger, 2018 CO 32, ¶ 39). “Abandonment, in contrast, typically

arises from a party’s decision not to pursue or reassert a claim that

the party had raised previously.” Id. Forfeiture is “the failure to

make the timely assertion of a right.” Rediger, ¶ 40 (quoting United

States v. Olano, 507 U.S. 725, 733 (1993)). “[A] waiver extinguishes

error” and precludes appellate review, while a forfeiture subjects the

error to plain error review. Id. Thus, we indulge every reasonable

presumption against waiver. Phillips v. People, 2019 CO 72, ¶ 21;

People v. Stanley, 56 P.3d 1241, 1244 (Colo. App. 2002).

¶ 50 Although D.R.M. argued in his motion to suppress that his

seizure was unlawful, defense counsel failed to obtain a ruling on

that issue at the motions hearing. Instead, counsel expressly

26 limited her argument to a portion of that motion that is not before

us — seeking to suppress statements D.R.M. made during the

arrest. When the court asked the parties if they had any argument,

defense counsel responded, “I’m gonna limit my argument to the

statements, themselves.”

¶ 51 Even if we give D.R.M. the benefit of the doubt and conclude

that defense counsel did not affirmatively waive or abandon this

claim, defense counsel’s failure to secure a ruling constitutes a

forfeiture and subjects his contention to plain error review. See

Rediger, ¶ 40 (defining forfeiture as “the failure to make the timely

assertion of a right” (quoting Olano, 507 U.S. at 733)); People v.

Douglas, 2015 COA 155, ¶ 40 (A failure to request a ruling on an

objection “amounts either to no objection at all, or, worse still, to an

abandonment of the objection and a waiver of any right to assert

error on appeal.”). Plain error is error that is both obvious and

substantial such that it “undermine[s] the fundamental fairness of

the trial itself so as to cast serious doubt on the reliability of the

judgment of conviction.” Hagos v. People, 2012 CO 63, ¶ 14

(quoting People v. Miller, 113 P.3d 743, 748-50 (Colo. 2005)).

27 4. The Juvenile Court Did Not Reversibly Err by Denying D.R.M.’s Motion to Suppress the Evidence

¶ 52 D.R.M. contends that the officers’ testimony failed to establish

they had a reasonable articulable suspicion that he was involved in

criminal activity to justify an investigatory stop. See Dacus, ¶ 26.

We disagree.

¶ 53 “[A]n investigatory stop, based in part on a tip provided by

someone other than the police, is justified ‘as long as the totality of

the circumstances indicates that the police possess some minimal

level of objective suspicion . . . that the person to be stopped is

committing, has committed, or is about to commit a crime.’” Id. at

¶ 28 (quoting Polander, 41 P.3d at 703). Considering the totality of

the circumstances — including the report of a burglary by a son

and Officer Brittingham’s observations of D.R.M. fleeing the scene

— we conclude that the officer had “some minimal level of objective

suspicion” that D.R.M. was the person who had committed the

burglary. Id. (quoting Polander, 41 P.3d at 703).

¶ 54 Even if we assumed that the juvenile court erred by failing to

address the lawfulness of the seizure before denying D.R.M.’s

motion to suppress, D.R.M. has not explained how the evidence

28 obtained during the search incident to his arrest — the pink spray

paint — prejudiced him at trial. Notably, the juvenile court found

that the prosecution failed to prove that D.R.M. was guilty of any of

the offenses involving pink spray paint. The only charges the court

found the prosecution had proven beyond a reasonable doubt

involved black marker or paint.

¶ 55 Accordingly, we conclude that D.R.M. has failed to establish

that (1) the officers lacked reasonable suspicion, or (2) the court’s

alleged error and the resultant admission of the pink spray paint

evidence “so undermined the fundamental fairness of the trial itself

so as to cast serious doubt on the reliability of the judgment of

conviction.” Hagos, ¶ 14 (quoting Miller, 113 P.3d at 750).

IV. Disposition

¶ 56 We affirm the judgment.

JUDGE J. JONES and JUDGE YUN concur.