23CA1111 Peo v Lotz 09-03-2026 COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1111 Jefferson County District Court No. 22CR644 Honorable Christopher Zenisek, Judge
The People of the State of Colorado, Plaintiff-Appellee, v. Wayne Richard Lotz, Defendant-Appellant.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE GROVE
Gomez and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 3, 2026
Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Andrea R. Gammell, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Wayne Richard Lotz, appeals the judgment of conviction after a jury found him guilty of first degree murder after deliberation, tampering with a deceased human body, aggravated motor vehicle theft, tampering with physical evidence, and criminal possession of a financial transaction device. We affirm the convictions but remand the case to the trial court for correction of the mittimus.
I. Background
¶2 A reasonable jury could have found the following facts based on the evidence presented at trial.
¶3 Lotz and his girlfriend — the victim — had been in an on-and- off relationship for several years. They had a history of domestic violence that led to police intervention on multiple occasions and resulted in several protection orders in which the victim was the protected party.
¶4 One such conflict between Lotz and the victim occurred on February 7, 2022, while the victim was on the phone with her son. The victim recorded part of the conflict on her phone as she followed Lotz across the yard of her home. Although some of the dialogue in the video is difficult to understand, the victim can be
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heard asking Lotz why he was going to get his gun and Lotz responding, “Part of it is going to be suicide, trust me.” The son, who apparently overheard some of the conflict during the phone call, reported the incident to the police and stayed in contact with his mother. After three days, the victim stopped responding to her son’s messages.
¶5 The last day the victim was seen or heard from was February 10, 2022. Three days after that, having been unable to reach the victim, a friend contacted law enforcement. Deputies went to the victim’s home and found the house dark but for an apparent fire in the fireplace. They heard dogs barking inside, but when no one answered the door, the deputies left.
¶6 The next day, the victim’s son gave the friend’s husband permission to enter the home. He forced his way in and found the victim’s dogs inside and a fire in the pellet stove, but neither Lotz nor the victim was there. The friend called the sheriff’s office again to report that the victim was missing. This time, when deputies visited the home, they found suspected blood outside and inside the house, along with cleaning supplies and the victim’s phone. The victim’s car was not at the property.
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¶7 Law enforcement opened an investigation and searched for Lotz’s and the victim’s vehicles. Using license plate readers and surveillance video, they learned that Lotz had driven the victim’s car on February 11 and February 14 and that Lotz’s truck had been impounded at a tow yard for almost a month.
¶8 On February 14, Lotz drove the victim’s car to the tow yard. Deputies observed him walking back and forth between his truck and the victim’s car. Then, before Lotz could drive his truck away from the lot, the deputies stopped him. During the stop, the deputies saw a phone and a six-inch knife wrapped in a paper towel in plain view in Lotz’s truck. They also found the victim’s credit card in Lotz’s pocket.
¶9 That afternoon, deputies conducted various forensic tests in the victim’s home and car. Her car and many items and places around her home tested presumptively positive for blood, and there was evidence that someone had tried to clean it up. (Forensic testing later identified both Lotz and the victim as contributors to the DNA collected from the victim’s car and her home, although several tested items also revealed the presence of a third unknown contributor.)
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¶ 10 Deputies also obtained search warrants for Lotz’s truck, pursuant to which they found Lotz’s phone, the victim’s jewelry, keys to the victim’s car, and floormats that appeared to be from the victim’s car and tested presumptively positive for blood. A search of Lotz’s phone also revealed that he had researched places to sell or pawn jewelry.
¶ 11 On February 15, five days after the victim went missing, law enforcement found her body in a ravine next to a steep mountain road. Her body was bound in ropes and leashes and hidden under pieces of particle board and rocks. A forensic pathologist could not identify the exact cause of death but believed the victim died by strangulation or blunt force injuries to the head.
¶ 12 Lotz was charged with first degree murder after deliberation, tampering with a deceased human body, menacing, aggravated motor vehicle theft, tampering with physical evidence, criminal possession of a financial transaction device, and two crime of violence sentence enhancers. The jury acquitted Lotz of menacing but found him guilty of all other offenses. The prosecution did not go forward with the crime of violence sentence enhancers, and the court sentenced Lotz to life in prison without the possibility of
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parole on the murder count and to consecutive terms of twelve, three, and one and a half years, respectively, on the other felonies.
¶ 13 Lotz now appeals, arguing that (1) the evidence at trial was insufficient to prove he acted after deliberation; (2) the court erroneously denied his motion to suppress evidence obtained from his truck; (3) the court erroneously instructed the jury; and (4) the mittimus incorrectly states that he was convicted of a crime of violence.
II. Sufficiency of Evidence
¶ 14 Lotz contends that the prosecution failed to prove he acted after deliberation. We disagree.
A. Standard of Review and Applicable Law
¶ 15 “[S]ufficiency of the evidence claims may be raised for the first time on appeal and are not subject to plain error review.” McCoy v. People, 2019 CO 44, ¶ 27. We consider the evidence in the light most favorable to the People, giving “the prosecution the benefit of every reasonable inference which may be fairly drawn from the evidence.” Clark v. People, 232 P.3d 1287, 1291-92 (Colo. 2010).
¶ 16 Lotz was charged with first degree murder under section 18-3- 102(1)(a), C.R.S. 2026, which provides that “[a] person commits the
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crime of murder in the first degree if[,] . . . [a]fter deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person.” “The term ‘after deliberation’ means not only intentionally but also that the decision to commit the act has been made after the exercise of reflection and judgment concerning the act.” § 18-3-101(3), C.R.S. 2026. “An act committed after deliberation is never one which has been committed in a hasty or impulsive manner.” Id.
B. Analysis
¶ 17 Lotz contends that there was insufficient evidence to prove that he acted after deliberation. In support of his argument, he points out that “[t]here were no witnesses to the murder”; he “made no statements to the police about it”; “[t]here was no evidence about the events leading up to the murder”; strangulation and blunt force trauma as well as using leashes and rope do not “involve planning or preparation, but instead suggest hasty or impulsive actions”; and “[t]here was no evidence a deadly weapon was used.” He also asserts that the fact that blood was found in the home and car reveals a panicked, not planned, response. We are not convinced.
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¶ 18 First, direct evidence of Lotz’s state of mind is not required to demonstrate that he acted after deliberation. “The element of deliberation, like intent, can rarely be proven other than through circumstantial or indirect evidence.” People v. Sanchez, 253 P.3d 1260, 1262 (Colo. App. 2010) (citation omitted).
¶ 19 Second, we are unpersuaded by Lotz’s suggestion that killing someone by strangulation or blunt force trauma, or using leashes and ropes as part of a murder, could never involve planning or preparation. To the contrary, the time required to beat or strangle someone to death, or the time required to gather ropes and leashes and then bind a victim, could allow for sufficient time for deliberation. And while using a more traditional deadly weapon might perhaps be probative of a defendant’s mental state, the tools used to carry out a homicide are not dispositive of whether the perpetrator acted after deliberation, and Lotz cites no authority for such a proposition. Finally, leaving blood behind after a failed attempt to fully clean a crime scene may indicate ineffectiveness, rather than panic.
¶ 20 Some of the facts Lotz points to may have also been logically interpreted by the jury as evidence that Lotz acted after
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deliberation. The fact that there were no witnesses to the murder may support an inference that Lotz planned the murder for a time when he knew that his actions would not be observed. And Lotz’s decision not to make any statements to the police may reveal that he thought through whether he would respond to police inquiries.
¶ 21 Further, the history of domestic violence between Lotz and the victim, along with the fact that the two fought just three days before the victim went missing, could support an inference by a reasonable jury that Lotz planned the murder. In the video of the argument recorded on the victim’s phone, the victim asked Lotz why he was going to get his gun and Lotz responded: “Part of it is going to be suicide, trust me.” This statement could reasonably support an inference that Lotz formed a plan to kill the victim and followed through on it a few days later. See People v. Madson, 638 P.2d 18, 26 (Colo. 1981) (evidence of acting with deliberation “may take the form of enmity, hostility, jealousy, or other manifestations of ill will between the accused and the victim”); People v. Jensen, 55 P.3d 135, 140 (Colo. App. 2001) (“In a homicide trial, evidence of prior threats, mistreatment, or malice by the defendant toward the victim
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is admissible to show the defendant’s motive and culpable mental state.”).
¶ 22 Third, the victim’s injuries could reasonably support an inference that Lotz acted after deliberation. At trial, a forensic examiner testified that the victim died from blunt force trauma or strangulation. She suffered a scalp hemorrhage; multiple abrasions, bruises, and lacerations on her head and face; and a nasal fracture. The victim also had rib fractures, contusions, and bruises. The injuries were consistent with multiple impacts of blunt force trauma.
¶ 23 As a result of strangulation, the victim had abrasions on her neck that could have been due to her attempts to free herself from the leash. She also had ligature marks around her neck, petechia on her eyelids, marked congestion in her head, fractured bones in her throat, and hemorrhaging in her neck muscles. The injuries to her neck were consistent with being strangled by a leash in a hanging or pulling motion. The examiner also testified that the victim’s injuries related to strangulation occurred before her death and that the quickest someone may die from strangulation alone is
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at least a few minutes, if the perpetrator is efficient and there is no resistance.
¶ 24 Thus, the extent and severity of the victim’s injuries could support a determination by the jury that Lotz took an appreciable length of time to kill the victim after he started strangling her. See Sanchez, 253 P.3d at 1262 (the jury reasonably could have inferred the defendant exercised judgment from the locations of the stab wounds on the victims’ chest, neck, and back “because of the degree of harm that may result from stabbing a person in those places”).
¶ 25 For the reasons above, we conclude there is sufficient evidence to support the jury finding that Lotz acted after deliberation and thus discern no error.
III. Suppression Motion
¶ 26 Lotz argues that the court erred by denying his motion to suppress the evidence seized from his truck because the warrant lacked probable cause. We disagree.
A. Standard of Review and Applicable Law
¶ 27 “The Fourth Amendment to the United States Constitution . . . prohibit[s] the issuance of a search warrant except upon probable
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cause supported by oath or affirmation particularly describing the place to be searched and the things to be seized.” People v. Rodriguez-Ortiz, 2025 COA 61, ¶ 21 (cert. granted Feb. 9, 2026). To establish probable cause, a search warrant affidavit must “allege facts sufficient to cause a reasonably cautious person to believe that evidence of criminal activity” exists in the place to be searched. People v. Omwanda, 2014 COA 128, ¶ 21. When examining a search warrant after the fact to determine its validity, we “assess whether the affidavit provided the [judge] with a ‘substantial basis’ for concluding probable cause existed.” People v. Randolph, 4 P.3d 477, 481 (Colo. 2000) (citing Illinois v. Gates, 462 U.S. 213, 239 (1983)). And we review the totality of the circumstances to determine whether probable cause existed. People v. Miller, 75 P.3d 1108, 1113 (Colo. 2003). “This analysis does not lend itself to mathematical certainties or bright line rules; rather, it involves a practical, common-sense determination whether a fair probability exists that a search of a particular place will reveal contraband or other evidence of criminal activity.” Id.
¶ 28 A court’s ruling on a motion to suppress presents a mixed question of fact and law. People v. Davis, 2019 CO 24, ¶ 14. We
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defer to the court’s factual findings if they have record support, but we review its legal conclusions de novo. People v. Cooper, 2016 CO 73, ¶ 7. “We review preserved trial errors of constitutional dimension, including the admission of evidence obtained in violation of the Fourth Amendment, for constitutional harmless error.” Pettigrew v. People, 2022 CO 2, ¶ 50 (citing Hagos v. People, 2012 CO 63, ¶ 11).
B. Additional Facts
¶ 29 An investigator from the sheriff’s office applied for a warrant to search Lotz’s truck after he was arrested at the towing yard. The warrant sought:
• [P]hotographs
• DNA or other biological evidence • Trace finger prints [sic]
• Indicia of ownership/use • Weapons of any type
• Sales/credit card transaction receipts • Nokia cell phone
• Women’s purse [sic]
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¶ 30 The affidavit in support of the warrant included a detailed description of the investigation and why investigators suspected that Lotz was connected to the victim’s disappearance. Among other things, the investigator attested to the following:
• The victim had been missing for several days, and her friends and family were concerned because of the history of domestic violence between her and Lotz.
• It was unusual for the victim to leave her animals uncared for and to be out of contact with her friends and family.
• Lotz had an extensive criminal record, including committing domestic violence against the victim, kidnapping, aggravated assault, felony menacing, robbery, theft, eluding, and parole violations; and being a habitual criminal offender.
• A search of the victim’s home and car had revealed suspected blood and evidence that someone had attempted to clean up blood at the home.
• A search of the victim’s phone had revealed the video of the conflict between the victim and Lotz on February 7.
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• Lotz had driven the victim’s car on at least two occasions after the victim disappeared, including to the tow yard where Lotz was arrested.
• The deputy who took Lotz into custody saw a phone and a “large knife with the blade wrapped in a paper towel” in plain view in Lotz’s truck.
• Lotz had the victim’s credit card in his pocket when he attempted to drive the truck away.
• After speaking with Lotz, investigators identified various inconsistencies in his account of the days leading up to his arrest.
A judge signed the warrant.
¶ 31 When they searched the truck, investigators observed women’s jewelry, a vehicle floormat that resembled the mats from the victim’s car, and a bottle of alcohol. Law enforcement then amended the initial warrant, seeking the originally listed items in addition to: “women’s jewelry, [victim’s car] compatible vehicle accessories . . ., cleaning supplies, keys . . ., residential rugs or floor coverings, [and] bottles of alcoholic beverages.” The affidavit for the amended warrant incorporated the same detailed explanations included in
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the first warrant and further described law enforcement’s observations during its execution, including that deputies had located a rug on the road near the victim’s home with suspected blood on it.
¶ 32 After finding the victim’s bound and hidden body, the investigator again amended the warrant seeking the following additional items: “cordage that resembled dog leashes (nylon and leather), horse leads, bungee cords, and/or nylon rope[;] cloth sheets similar to a bed sheet or duvet cover[;] [and] moving blankets and rugs or similar items.” Again, the affidavit for this amended warrant included the same detailed explanations, in addition to law enforcement’s observations while executing the previous warrants and finding the victim’s body.
¶ 33 Upon execution of the warrants, law enforcement seized the following evidence from the truck, which the prosecution later admitted as evidence at trial:
• the victim’s jewelry;
• Lotz’s cell phone, which showed he had researched places to sell or pawn jewelry;
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• floormats from the victim’s car that were stained with Lotz’s blood; and
• keys to the victim’s car.
¶ 34 Before trial, the defense moved to suppress the results of the searches, arguing that the initial warrant was not supported by probable cause because it did not establish a nexus between the crimes alleged and the search of the truck.
¶ 35 The court denied the motion, finding a “substantial nexus and probable cause to search the vehicle and obtain the warrant” based on the following facts: Lotz was in the truck that was the subject of the search, police saw a knife wrapped in a paper towel, Lotz had the victim’s credit card, Lotz drove the victim’s car to the tow yard, and there was a “prior history between the two and knowledge of a missing person.”
C. Analysis
¶ 36 Lotz contends that the court erroneously denied his motion to suppress the evidence obtained from his truck. Specifically, he argues that the first search warrant lacked probable cause and thus impermissibly tainted the second and third warrants. We conclude the first search warrant did not lack probable cause.
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Accordingly, we discern no error in the court’s denial of Lotz’s suppression motion.
¶ 37 Lotz points to how the affidavits in support of the warrants “did not identify which offense Lotz allegedly committed, identify any crime under investigation, or explain any criminal connection to [Lotz’s truck].” We reject Lotz’s characterization of the affidavits as “bare bones.”
¶ 38 “[I]f an affidavit contains only conclusory statements devoid of facts from which a magistrate can independently determine probable cause, it is deemed a deficient ‘bare bones’ affidavit.” People v. Rabes, 258 P.3d 937, 940 (Colo. App. 2010) (citation omitted). The affidavits here contained far more than conclusory statements, providing five pages of in-depth, detailed descriptions. And although Lotz is correct that the affidavits do not identify a specific criminal offense Lotz allegedly committed, they do discuss at length the victim’s sudden disappearance, law enforcement’s investigation, and law enforcement’s reasonable suspicions of Lotz’s involvement.
¶ 39 We recognize that “[a]n affidavit that provides the details of an investigation, yet fails to establish a minimal nexus between the
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criminal activity described and the place to be searched, is nevertheless bare-bones.” People v. Gutierrez, 222 P.3d 925, 941 (Colo. 2009). However, under the circumstances here, the affidavits contained sufficient facts from which a judge could independently draw probable cause. Specifically, the affidavits establish that a person of reasonable caution would conclude that Lotz’s truck contained evidence of a crime related to the victim’s disappearance. Lotz — already a suspect in the victim’s disappearance — drove the victim’s car to pick up his truck, left a phone and a “large knife” with the blade wrapped in paper towels in plain view in the truck when he was taken into custody, and had the victim’s credit card in his pocket as he drove his truck off the tow lot. Together, these facts provided the judge with “a substantial basis to find that probable cause existed to believe that contraband or evidence of criminal activity would be located” in Lotz’s truck. People v. Cox, 2018 CO 88, ¶ 17. Accordingly, the court did not err in denying Lotz’s motion to suppress.
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IV. Jury Instruction
¶ 40 Lotz contends that the court reversibly erred by providing a bridge instruction to the jury that created a “hard transition” between first and second degree murder. We disagree.
A. Standard of Review and Applicable Law
¶ 41 In Colorado, “a criminal defendant is entitled to an instruction permitting the jury to find him guilty of a lesser offense, whether included in the charged offense or not, where it is supported by the evidence and the defendant wants it.” People v. Roman, 2017 CO 70, ¶ 16. The parties refer to this type of instruction as a “bridge instruction.”
¶ 42 Colorado is a “soft transition” jurisdiction, meaning that a jury need not acquit a defendant of a greater offense before considering a lesser included offense. People v. Richardson, 184 P.3d 755, 764 n.7 (Colo. 2008); People v. Vasquez, 2022 COA 100, ¶ 66. As a result, “hard transition” instructions — which require a jury to unanimously agree that a defendant is not guilty of a greater offense before it can consider a lesser included offense — are improper. Richardson, 184 P.3d at 764 n.7; Vasquez, ¶ 66; People v. Zamarripa-Diaz, 187 P.3d 1120, 1122 (Colo. App. 2008).
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¶ 43 Generally, we review jury instructions de novo to determine if they correctly informed the jury on the law. People v. Roberts- Bicking, 2021 COA 12, ¶ 17. If they did, we review the trial court’s decision to give a particular instruction for an abuse of discretion and will not disturb that decision unless it is manifestly arbitrary, unreasonable, or unfair. Id.
B. Analysis
¶ 44 The prosecution tendered the following bridge instruction, which mirrored the pattern jury instruction, COLJI-Crim E:14 (2025).
If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged, he may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged if the evidence is sufficient to establish his guilt of the lesser offense beyond a reasonable doubt.
....
After considering all the evidence, if you decide the prosecution has proven each of the elements in the crime charged or of a lesser included offense, you should find the defendant guilty of the offense proven, and you should so state in your verdict.
After considering all the evidence, if you decide the prosecution has failed to prove one or more
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elements of the crime charged and one or more elements of the lesser included offenses, you should find the defendant not guilty of these offenses, and you should so state in your verdict.
¶ 45 Defense counsel objected, arguing that the instruction did not make it “completely clear that the jury may return a guilty verdict on a lesser without first acquitting on the larger, the first-degree murder in this case.” Defense counsel requested that the court include the following additional sentence at the end of the first paragraph: “The jury need not acquit the defendant of greater offenses before reaching a verdict on a lesser offense.”
¶ 46 The trial court used the prosecution’s tendered bridge instruction after concluding that the language correctly stated the law. The court also pointed out that if the jury had questions, it could provide clarifying instructions.
¶ 47 Lotz now contends that the jury instruction was a “hard transition instruction that is inconsistent with the law in this soft- transition jurisdiction.” Because the instruction’s first sentence begins with “if,” Lotz argues, this conditional conjunction prefaces a clause that is dependent on the jury’s doubt as to guilt on the charged offense. In other words, according to Lotz, “only if this
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triggering action was not met would the jury proceed to the dependent clause — the consideration of the lesser offenses.”
¶ 48 We agree that the first sentence of the instruction — if considered in isolation — could be read as suggesting a hard transition; however, when reviewing the language as a whole, the instruction properly informed the jury of the soft transition. In context, the first sentence merely suggests an order in which the jury may consider offenses — most severe to least — but it does not require the jury to unanimously acquit the defendant of the greatest offense before considering any lesser included offenses. Thus, a jury receiving the instruction could just as well work in the opposite direction, deciding whether the prosecution had proved each element of a lesser included offense beyond a reasonable doubt before deciding the same with respect to each greater offense.
¶ 49 Our conclusion comports with precedent. The supreme court has held that the pattern instruction that the instruction here was based on cannot “be read to require a unanimous decision on the greater offense before consideration of the lesser.” People v. Padilla, 638 P.2d 15, 18 (Colo. 1981). And other divisions of this court have found that the pattern language in the bridge instruction
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“contain[ed] ‘soft transition’ language[] and instruct[ed] the jury, ‘[I]f you decide that the prosecution has proven each of the elements of the crime charged or of a lesser included offense, you should find the defendant guilty of the offense proven.’” People v. LePage, 397 P.3d 1074, 1078 (Colo. App. 2011), aff’d on other grounds, 2014 CO 13; see also People v. McGregor, 635 P.2d 912, 914 (Colo. App. 1981) (precursor to COLJI-Crim. E:14 did not restrict the order in which the jury could consider the offenses or require an acquittal on the greater offense before consideration of a lesser one). As one division explained, the reference in such a bridge instruction to “the elements of the crime charged or of a lesser included offense” essentially tells the jury to “consider the greater or lesser offenses in an order of its choosing.” LePage, 397 P.3d at 1078.
¶ 50 Lotz’s reliance on People v. Bachicha, 940 P.2d 965 (Colo. App. 1996), is misplaced. In Bachicha, the court responded to a jury question asking if jurors could consider a lesser offense because they were deadlocked on the greater offense. Id. at 967. The court referenced its earlier instructions in a way that “implied to the jury that it would have to acquit [the] defendant of the greater offense by a unanimous vote before it could consider the lesser-included
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offense.” Id. In contrast, here, neither the instructions nor the court implied that the jury was required to unanimously acquit Lotz of a greater offense before it could consider any lesser included offense. See McGregor, 635 P.2d at 914 (“[R]eversible error results only when the instruction mandates or conveys the impression that there must be an acquittal on one charge before consideration of another.”); see also People v. Bobian, 2019 COA 183, ¶ 34 (Despite advising the jury that it should consider the greater offenses before the lesser included ones, the prosecutor “did not suggest that the jury had to acquit [the defendant] of the greater offenses before considering lesser offenses, and therefore did not misstate the law.”).
¶ 51 Accordingly, the trial court’s bridge instruction correctly stated the law, and the court did not abuse its discretion when it issued the instruction to the jury.
V. Mittimus Correction
¶ 52 Lotz argues, and the People concede, that the mittimus should be corrected to reflect that he was not convicted of any crime of violence sentence enhancers.
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¶ 53 “Clerical mistakes in judgments, orders, or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.” Crim. P. 36. We review the accuracy of the mittimus de novo. People v. Mendenhall, 2015 COA 107M, ¶ 84.
¶ 54 Here, Lotz was initially charged with two crime of violence sentence enhancers, but the jury was not instructed on the sentence enhancers and thus did not return a verdict on those counts. The mittimus incorrectly reflects a conviction on one of the initially charged enhancers and a disposition on the other.
¶ 55 We remand the case so that the mittimus can be corrected to properly reflect that Lotz was not convicted of the crime of violence charges.
VI. Disposition
¶ 56 The judgment of conviction is affirmed. The case is remanded to the trial court to amend the mittimus.
JUDGE GOMEZ and JUDGE MOULTRIE concur.