Peo v. Kelly

Opinion

23CA1547 Peo v Kelly 07-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1547 Jefferson County District Court No. 22CR1545 Honorable Meegan A. Miloud, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Earl Richard Kelly,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE PAWAR Sullivan and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 16, 2026

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Earl Richard Kelly, appeals the judgment of

conviction entered after a jury found him guilty of second degree

burglary and theft. We affirm.

I. Background

¶2 Kelly drove an acquaintance, Lindsey Pruitt, to a storage

facility where Pruitt rented two units adjacent to a unit rented by

the victims, Andrea Burns and Michael Scally. On the day that

Kelly drove to the storage facility, the victims noticed that the lock

to their unit was not working properly and that they were missing

property, including Scally’s valuable comic book collection.

¶3 An investigation revealed that the wire ceiling between the

victims’ and Pruitt’s units was cut and that the bolt to the victims’

unit was removed from the inside. Surveillance footage showed

Kelly carrying a bin that looked like a bin that belonged to the

victims. A bin of DVDs and bin lids consistent with what the

victims described was also found in Pruitt’s unit.

¶4 The prosecution charged Kelly with second degree burglary

and theft.

1 ¶5 Trial was initially set for June 14, but the trial court granted

the prosecution’s motion for a continuance because Burns planned

to be in Japan through the end of the month.

¶6 Trial proceeded on July 19. At the close of the prosecution’s

evidence, defense counsel moved for a judgment of acquittal,

arguing there was no evidence that the storage unit was a

“building,” as required for second degree burglary. The trial court

denied the motion.

¶7 Defense counsel also requested a jury instruction on third

degree burglary as either a lesser included or a lesser nonincluded

offense of second degree burglary, arguing that the storage unit was

a “vault” under the statute for that offense. The trial court declined

to give the requested instructions.

¶8 The jury found Kelly guilty as charged, and the court

sentenced him to six years in prison.

¶9 Kelly appeals, arguing that the court violated his statutory and

constitutional speedy trial rights and erroneously denied his

requested jury instructions. He further challenges the sufficiency of

the evidence that the storage unit was a building. We disagree with

these arguments and affirm.

2 II. Statutory Speedy Trial

A. Applicable Law

¶ 10 Section 18-1-405(1), C.R.S. 2025, provides that if a defendant

is not brought to trial within six months from the date that he

enters a not guilty plea, the charges must generally be dismissed.

See People v. Jompp, 2018 COA 128, ¶ 21. However, a delay of up

to six months is excluded from the computation of that time when

the prosecution demonstrates that (1) material evidence is

unavailable; (2) it has exercised due diligence to obtain the

evidence; and (3) there are reasonable grounds to believe the

evidence will be available at a later date. § 18-1-405(6)(g)(I). The

prosecution must make a sufficient record that these three

elements have been met, and the trial court may rely on the

prosecution’s uncontested offers of proof. Jompp, ¶ 22.

¶ 11 We review a trial court’s decision to apply the exclusion in

section 18-1-405(6)(g)(I) for an abuse of discretion and will not

disturb its findings if they are supported by the record. Id. at ¶ 15.

B. Discussion

¶ 12 The trial court continued trial under section 18-1-405(6)(g)(I)

due to Burns’ preplanned vacation to Japan. Kelly argues that the

3 court erred because Burns’ vacation did not make her “unavailable”

and that the prosecution failed to exercise due diligence to obtain

her testimony.1 We are not persuaded.

¶ 13 First, as to availability, Kelly points to out-of-state decisions

concluding that a person is not unavailable for speedy trial

purposes if they are on vacation. See, e.g., Baustert v. Superior Ct.,

29 Cal. Rptr. 3d 208, 213 (Ct. App. 2005). But our supreme court

has held that evidence is “unavailable” for purposes of section 18-1-

405(6)(g)(I) whenever the prosecution cannot get or use it,

“regardless of the reason for such unavailability.” People v. Lucy,

2020 CO 68, ¶¶ 30-31. And other state courts have held that a

vacation can render a witness unavailable for speedy trial purposes.

See State v. Saffell, 518 N.E.2d 934, 935 (Ohio 1988) (per

curiam); State v. Grilley, 840 P.2d 903, 904-05 (Wash. Ct. App.

1992). Because these decisions demonstrate that reasonable minds

may disagree, we conclude the trial court’s decision fell within the

range of reasonable options. See Vigil v. People, 2019 CO 105, ¶ 14

1 Kelly does not challenge the court’s findings as to the third

statutory factor — that there were reasonable grounds to believe the evidence would be available later.

4 (we must affirm under these circumstances). Accordingly, the court

did not abuse its discretion.

¶ 14 Second, Kelly argues the prosecution failed to exercise due

diligence because, while it subpoenaed Burns for trial, it did not

enforce that subpoena. Critically, however, there is no requirement

to subpoena friendly witnesses in the first place. See People v.

Scialabba, 55 P.3d 207, 209 (Colo. App. 2002) (no error in

continuing trial based on an unavailable witness, despite absence of

a subpoena). Here, the prosecutor issued a subpoena for Burns,

going above and beyond her due diligence requirement. Once she

did so, she discovered that Burns would be unavailable — a finding

supported by the record, as discussed above. We conclude that

nothing further was required.

¶ 15 Moreover, nothing in the record suggests that the prosecution

released Burns from the subpoena before the trial court granted a

continuance. See People v. Conley, 804 P.2d 240, 246 (Colo. App.

1990) (there is no basis to issue a warrant for a witness where a

subpoena is no longer valid). It is therefore just as likely that Burns

was released from the subpoena by the continuance itself than by

the prosecutor’s choice to release her.

5 ¶ 16 Kelly further argues that the prosecutor failed to demonstrate

that Burns could not reschedule her vacation or explain why the

vacation took precedence over trial. But the trial court was entitled

to weigh and credit the prosecutor’s representation that

international travel arrangements are generally nonrefundable. We

therefore see no basis for reversal.

III. Constitutional Speedy Trial

¶ 17 A defendant also has a constitutional speedy trial right under

the United States and Colorado Constitutions. Jompp, ¶ 28 (the

analysis of whether this right was violated differs from the analysis

regarding the statutory right). Compliance with the constitutional

speedy trial right is determined by considering four factors: (1) the

length of the delay; (2) the reasons for the delay; (3) the defendant’s

assertion of the right; and (4) the prejudice to the defendant

resulting from the delay. Id. (citing Barker v. Wingo, 407 U.S. 514

(1972)). We review whether there was a constitutional speedy trial

violation de novo, but we defer to the court’s factual findings if they

are supported by the record. People v. Glaser, 250 P.3d 632, 636

(Colo. App. 2010).

6 ¶ 18 Applying the Barker factors, we conclude that the trial court

did not violate Kelly’s constitutional right to a speedy trial.

¶ 19 First, the delay was around thirteen months. While a delay of

over a year is presumptively prejudicial, this delay is “by no means

extreme.” Jompp, ¶ 30 (quoting People v. Nelson, 2014 COA 165,

¶ 33) (even a three-year delay was not so extreme as to result in a

constitutional violation).

¶ 20 Second, while the delay was attributable to the prosecution, it

was justified because a material witness was unavailable. See id. at

¶ 31 (a missing witness justifies an appropriate delay). Moreover,

as explained by the prosecutor, Burns’ unavailability also prevented

Scally from testifying because he was on the autism spectrum and

Burns was concerned that requiring him to testify without her

present would put an undue toll on his mental health. Kelly

reiterates his prior arguments that Burns’ vacation was not a

justifiable cause for delay. But as discussed, we may not disturb

the trial court’s proper exercise of discretion in this regard.

¶ 21 Third, Kelly asserted his speedy trial rights.

¶ 22 Finally, the Barker Court identified three interests to consider

in assessing prejudice: (1) preventing oppressive pretrial

7 incarceration; (2) minimizing the accused’s anxiety and concern;

and (3) limiting the possibility the defense will be impaired. Jompp,

¶ 33 (of these, the last is most serious). Kelly asserts he was

prejudiced because he was incarcerated for the entire duration of

the pretrial delay, and his incarceration impacted his employment

and income. But his employment-related argument is conclusory,

and he makes no argument whatsoever regarding his other

interests. In fact, Kelly makes no attempt to demonstrate that his

ability to present a defense was impaired in any way. Under these

circumstances, the fact that he was incarcerated “is given slight

weight.” Id. (citation omitted).

¶ 23 Although Kelly asserted his speedy trial rights and experienced

some prejudice from being incarcerated before trial, we conclude

that, when considered as a whole, the Barker factors weigh against

finding a constitutional violation. Accordingly, Kelly is not entitled

to relief.

IV. Jury Instructions

¶ 24 Next, Kelly asserts the trial court erred by denying his request

to instruct the jury on third degree burglary as either a lesser

8 included or a lesser nonincluded offense of second degree burglary.

We discern no error.

A. Lesser Included Offense Instruction

¶ 25 “[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, 69 (this is the proper

articulation of “the strict elements test”).

¶ 26 Both second and third degree burglary require unlawful

presence in a particular type of place. The question here is whether

the places described in the third degree burglary statute are a

subset of the places described in the second degree burglary

statute. We conclude they are not.

¶ 27 The places to which second degree burglary applies are

“building[s] or occupied structure[s]” — a building being “a

structure which has the capacity to contain, and is designed for the

shelter of, man, animals, or property.” § 18-4-203(1), C.R.S. 2025;

§ 18-4-101(1), C.R.S. 2025.

9 ¶ 28 The places to which third degree burglary applies are “any

vault, safe, cash register, coin vending machine, product dispenser,

money depository, safety deposit box, coin telephone, coin box, or

other apparatus or equipment whether or not coin operated.” § 18-

4-204(1), C.R.S. 2025. Whether a place fits this description

“depends on whether the apparatus or equipment is merely a

storage receptacle or . . . is designed for the safekeeping of money or

valuables, and whether that design or use is evident.” Winter v.

People, 126 P.3d 192, 195 (Colo. 2006).

¶ 29 Based on these definitions, we conclude that not all

apparatuses and equipment that would suffice for third degree

burglary would also qualify as buildings or occupied structures for

second degree burglary. A cash register suffices for third degree

burglary. § 18-4-204. But it is certainly not a building or occupied

structure for purposes of second degree burglary, even under the

legislature’s broad definition of “building.” Thus, the elements of

third degree burglary are not subsumed by the elements of second

degree burglary. Accordingly, third degree burglary is not a lesser

included offense of second degree burglary, and the court properly

declined to give the requested instruction.

10 B. Lesser Nonincluded Offense Instruction

¶ 30 Nor was Kelly entitled to an instruction on third degree

burglary as a lesser nonincluded offense. Such an instruction is

warranted only where there is “a rational basis in the evidence to

support a verdict acquitting the defendant of a greater offense and

convicting him of the lesser offense.” People v. Lopez, 2020 COA

119, ¶ 9 (quoting People v. Wartena, 2012 COA 12, ¶ 30). We see

no basis in the evidence here to support acquitting Kelly of the

greater offense but convicting him of the lesser offense.

¶ 31 As discussed, the difference between second and third degree

burglary is that second degree burglary involves breaking or

entering a building or occupied structure. § 18-4-203(1). And a

building is statutorily defined as “a structure which has the

capacity to contain, and is designed for the shelter of, man,

animals, or property.” § 18-4-101(1).

¶ 32 There is no question that a storage unit is a structure that has

the capacity to contain and is designed for the shelter of property.

It therefore falls squarely within the legislative definition of a

“building.”

11 ¶ 33 Kelly argues the evidence supported a finding by the jury that

the storage unit was designed for the safekeeping of money or

valuables and therefore fell under the purview of section 18-4-204.

At the outset, we are not convinced that it had “readily

ascertainable features,” similar to the other items enumerated in

section 18-4-204, so as to make that design evident. Winter, 126

P.3d at 195-96 (even a locker is not sufficiently “vault-like” to meet

this definition).

¶ 34 But in any event, even if we assume without deciding that

there was evidence in the record to support a conviction for third

degree burglary, we see no basis for the jury to simultaneously

acquit Kelly of second degree burglary. See People v. Naranjo, 2017

CO 87, ¶ 17 (noting that a jury’s consideration of a lesser

nonincluded offense can subject the defendant to an additional

conviction and ultimately harsher punishment). A storage unit

meets the legislative definition of a building — a structure with the

capacity to contain and designed to shelter property. Accordingly,

because we conclude there is no rational basis in the evidence to

support acquitting Kelly of the greater offense while also convicting

12 him of the lesser offense, the court was not required to provide the

lesser offense instruction.

V. Sufficient Evidence Supported the Burglary Conviction

¶ 35 Finally, as demonstrated by the discussion above, we disagree

with Kelly’s argument that the prosecution presented insufficient

evidence to prove that the storage unit was a building.

¶ 36 We review the sufficiency of the evidence de novo to determine

whether the evidence, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

a conclusion by a rational fact finder that the defendant is guilty

beyond a reasonable doubt. Jompp, ¶ 36. We give the prosecution

the benefit of every reasonable inference that can fairly be drawn

from the evidence. Id. When interpreting statutes, our primary

purpose is to ascertain and give effect to the legislature’s intent.

People v. Neustel, 2023 COA 56, ¶ 6. To do so, we look first to the

statute’s plain language, giving words and phrases their ordinary

meanings and construing them according to the rules of grammar

and common usage. Id.

¶ 37 We have already concluded that a storage unit is a “building,”

as defined by section 18-4-101(1). Indeed, it is specifically designed

13 for the “shelter of . . . property,” and its very purpose is “to contain.”

Id.

¶ 38 Kelly argues otherwise, relying on cases discussing buildings

as large standalone structures or including several units within a

larger structure. He further argues the storage unit was not a

building because it was not fit to shelter humans or animals. But

section 18-4-101(1)’s plain language does not require a building to

be standalone or to contain multiple units if it “has the capacity to

contain” and is designed to shelter property. And because the

storage unit in this case was designed to shelter property, it need

not be fit to shelter humans or animals. See People v. Pellegrin,

2021 COA 118, ¶ 69 (use of the word “or” in a statute is presumed

to be in the disjunctive sense), aff’d, 2023 CO 37.

¶ 39 We therefore reject Kelly’s arguments and conclude the

evidence was sufficient to support his second degree burglary

conviction.

VI. Disposition

¶ 40 The judgment is affirmed.

JUDGE SULLIVAN and JUDGE MEIRINK concur.