Peo v. McKimmy

Opinion

22CA1528 Peo v McKimmy 08-20-2026 COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1528 Jefferson County District Court No. 21CR3062 Honorable Jeffrey R. Pilkington, Judge

The People of the State of Colorado, Plaintiff-Appellee, v. Michael Joseph McKimmy, Defendant-Appellant.

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

Division II

Opinion by CHIEF JUDGE TOW Harris and Brown, JJ., concur

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

Announced August 20, 2026

Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Rachel C. Funez, Alternate Defense Counsel, Glenwood Springs, Colorado, for Defendant-Appellant

¶1 Defendant, Michael Joseph McKimmy, appeals the judgment of conviction entered on a jury verdict finding him guilty of numerous offenses arising out of a burglary of a home, as well as the trial court’s adjudication of McKimmy as a habitual offender. We affirm in part and reverse in part, and we remand the case with directions.

I. Background

¶2 The jury heard evidence that would support the following findings. ¶3 Patrick Lagodny came home early from work to find McKimmy inside his house. McKimmy pointed a pocketknife at Lagodny before exiting through the front door with several bags of Lagodny’s belongings. Lagodny called 911 to report a robbery in progress and then followed McKimmy outside. ¶4 McKimmy tried to leave in Lagodny’s car. A fight ensued, during which McKimmy cut Lagodny’s hand. Lagodny ultimately disarmed McKimmy and pulled him out of the car. McKimmy fled the scene without Lagodny’s belongings, and Lagodny followed. ¶5 Sergeant John Parsons responded to the call for a robbery in progress. While en route to the residence, Sergeant Parsons was

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flagged down by a bystander, who told him that two men had been fighting nearby. Sergeant Parsons contacted the men, who were later identified as McKimmy and Lagodny. Lagodny stated that McKimmy had been “inside his house.” McKimmy was detained and placed in a patrol car during the stop. ¶6 The prosecution charged McKimmy with two counts of first degree burglary, three counts of aggravated robbery, second degree assault, felony menacing, aggravated motor vehicle theft, theft ($5,000-$20,000), third degree assault, and three crime of violence counts. A jury convicted McKimmy of the lesser crime of attempt to commit aggravated motor vehicle theft and convicted him as charged on all other counts. ¶7 The prosecution also charged McKimmy with ten habitual criminal counts. After a hearing, the trial court found that the prosecution had proved five of the habitual criminal counts:

• burglary in a 1987 Jefferson County case (1987 burglary);

• burglary in a 1991 Jefferson County case (1991 burglary);

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• bribing a witness in a 1991 Jefferson County case (1991 bribery);

• burglary in a 2008 Jefferson County case (first 2008 burglary); and

• burglary in another 2008 Jefferson County case (second 2008 burglary).

¶8 After merging several of the substantive offenses, the court sentenced McKimmy to sixty-four years in the custody of the Department of Corrections on the burglary charge and concurrent sentences on the other charges.

II. Sufficiency of the Evidence ¶9 McKimmy contends that the prosecution failed to present sufficient evidence for his aggravated robbery and theft charges. We disagree as to the aggravated robbery charge but agree as to the theft charge.

A. Standard of Review

¶ 10 “We review the record de novo to determine whether the evidence before the jury was sufficient both in quantity and quality to sustain a conviction.” People v. Ramos, 2017 COA 100, ¶ 7. We consider “whether the evidence, viewed as a whole and in the light

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most favorable to the prosecution, is sufficient for a reasonable person to conclude that the defendant is guilty of the crimes charged beyond a reasonable doubt.” Id. In doing so, “we are required to ‘give the prosecution the benefit of every reasonable inference which might be fairly drawn from the evidence.’” People v. Harrison, 2020 CO 57, ¶ 32 (quoting People v. Perez, 2016 CO 12, ¶ 25).

B. Aggravated Robbery 1. Applicable Law

¶ 11 A person commits robbery when they “knowingly take[] anything of value from the person or presence of another by the use of force, threats, or intimidation.” § 18-4-301(1), C.R.S. 2025; see also People v. Mortenson, 2023 COA 92, ¶ 7 (“The elements of robbery involve (1) conduct — the use of force, threats, or intimidation; (2) circumstances — the thing must have value and must be taken from the person or presence of another; and (3) a result — the taking.”). ¶ 12 A person is guilty of aggravated robbery if, during the act of robbery, they “knowingly wound[] or strike[] the person robbed . . . with a deadly weapon or by the use of force, threats, or

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intimidation with a deadly weapon knowingly put[] the person robbed . . . in reasonable fear of death or bodily injury.” § 18-4-302(1)(b), C.R.S. 2025. ¶ 13 “[P]roperty is taken from the ‘presence of another’ when it is so within the victim’s reach, inspection or observation that [they] would be able to retain control over the property but for the force, threats, or intimidation directed by the perpetrator against the victim.” People v. Bartowsheski, 661 P.2d 235, 244 (Colo. 1983). “When a person is unsuccessful in a taking by force, [they] could, at most, be guilty of attempted robbery.” Mortenson, ¶ 22.

2. Analysis

¶ 14 McKimmy argues that the prosecution failed to prove a successful taking because Lagodny was able to retain control over the property and successfully thwarted the robbery. ¶ 15 Specifically, McKimmy contends that this case is analogous to Mortenson. There, the defendant attempted to leave a store with stolen items in her purse, but a store employee confronted her before she could exit the building. Id. at ¶ 3. When she attempted to pull a gun on the employee, the employee immediately wrestled her to the ground. Id. The employee and a security officer

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disarmed and handcuffed the defendant before recovering the items from her purse. Id. A division of this court concluded that there was insufficient evidence to prove the defendant committed aggravated robbery because the defendant “did not successfully remove property from [the store employee’s] presence,” and, therefore, “the prosecution failed to meet its burden of proof with respect to the taking element of robbery.” Id. at ¶ 16. ¶ 16 McKimmy argues that “Lagodny was within arm’s length and had a right to exercise control over [the items],” meaning the property was still in Lagodny’s presence. But McKimmy also concedes that Lagodny’s version of events was inconsistent. At trial, Lagodny testified that when he entered his home, McKimmy was holding a knife and bags of Lagodny’s belongings. Upon seeing Lagodny, McKimmy pointed and jabbed the knife at him. Lagodny said McKimmy then “went straight to the door, turned the doorknob, and exited. Like turned his back on [Lagodny] and walked out the door.” Lagodny testified that he called 911 before pursuing McKimmy outside. ¶ 17 Thus, there was evidence that McKimmy had Lagodny’s items in his control, that McKimmy threatened Lagodny with a knife, and

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that McKimmy then exited the home and left Lagodny’s sightline. A jury could reasonably conclude that McKimmy took Lagodny’s belongings from his presence by the use of force, threats, or intimidation. See Harrison, ¶ 32. ¶ 18 Nor does the fact that Lagodny ultimately recovered his property mean McKimmy did not commit aggravated robbery. The evidence was sufficient to establish that McKimmy had possession of Lagodny’s property and removed it, albeit briefly, from Lagodny’s reach. See People v. Borghesi, 66 P.3d 93, 99 (Colo. 2003) (observing that for a robbery to occur, the defendant’s possession of the stolen property “could be exceedingly short”). ¶ 19 We conclude that the evidence viewed in the light most favorable to the prosecution was sufficient to sustain McKimmy’s conviction for aggravated robbery. See Ramos, ¶ 7.

C. Theft

1. Appliable Law

¶ 20 An individual commits theft when they “knowingly obtain[], retain[], or exercise[] control over anything of value of another without authorization or by threat” and “[i]ntend[] to deprive the other person permanently of the use or benefit of the thing of

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value.” § 18-4-401(1)(a), C.R.S. 2025. Theft is “[a] class 5 felony if the value of the thing involved is five thousand dollars or more but less than twenty thousand dollars.” § 18-4-401(2)(g). ¶ 21 The measure of value of stolen items is their reasonable market value at the time of the taking. People v. Evans, 612 P.2d 1153, 1155 (Colo. App. 1980). “An owner is always competent to testify as to the value of [their] property. However, the testimony must relate to the value of the property at the time of the commission of the crime.” People v. Moore, 226 P.3d 1076, 1084 (Colo. App. 2009) (citation omitted). And “testimony on the purchase price of goods is competent evidence of fair market value only where the goods are so new, and thus, have depreciated in value so insubstantially, as to allow a reasonable inference that the purchase price is comparable to current fair market value.” Id. There must be some basis for value other than pure speculation, guesses, and assumptions. Id. at 1084-85.

2. Analysis

¶ 22 McKimmy argues that the evidence for theft as charged was insufficient because the prosecution failed to prove the value of Lagodny’s items.

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¶ 23 The evidence at trial on the issue of value consisted exclusively of testimony from Lagodny, who assigned value to the items as the prosecution showed him photos taken at the scene. Lagodny valued the recovered items at $5,100. ¶ 24 When assigning value to the items, Lagodny testified to the following:

• A bag containing cameras, lenses, and memory cards was worth $2,500 “based on having purchased those items [him]self.”

• A Dyson hand-held vacuum cost $500 to purchase.

• A pair of blue jeans, coffee scale, and box of pencils were worth $100 dollars.

• A book bag containing clothes, wrapped Christmas gifts, Amazon bags, binoculars, and jewelry was worth $2,000 based on the purchase price of the items.

¶ 25 The bulk of Lagodny’s valuation testimony was based on the purchase price of the items. But Lagodny did not testify that any of these items were so new as to make their purchase price comparable to the fair market value on the date of the offense, and

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the prosecution offered no other evidence in support of that finding. See id. at 1084. ¶ 26 Furthermore, it is clear from the testimony that Lagodny’s valuation of certain items was based on speculation and guesses, which is not sufficient evidence. See id. at 1084-85. Specifically, Lagodny testified that the vacuum cost $500 to purchase as “a multi-piece vacuum,” but McKimmy only took the base of the vacuum and not its corresponding parts. Similarly, Lagodny “estimated” that the jeans, coffee scale, and box of pencils were worth $100 total without any explanation as to how he arrived at that value or the cost of the items individually. Finally, Lagodny testified that the value of the items in the book bag totaled $2,000, in large part because of “his wife’s jewelry” and other “hunting optics.” Notably, the prosecution did not offer any evidence supporting Lagodny’s claim that the book bag contained anything other than clothes and binoculars, which are visible in the admitted exhibit. An officer conducted a brief inventory of the items at the scene and captured the book bag on his body camera. He did not pull all the items out of the bag to document them individually, and the footage only shows clothes in the bag.

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¶ 27 In sum, the evidence at trial did not adequately tie a particular present value to any of the stolen items, and, therefore, it was not sufficient to support the jury’s finding that the value of the items was $5,000 or more. ¶ 28 The People argue that “assuming value was not proven, the proper remedy is to convict [McKimmy] of a lesser charge.” See Halaseh v. People, 2020 CO 35M, ¶ 8 (holding that a lesser offense can be implied in the conviction of its greater offense if each of the elements has already been charged and found by the jury beyond a reasonable doubt). In Moore, a division of this court vacated the judgment of conviction on a class 3 felony for theft and remanded for entry of judgment and resentencing on a class 4 felony. 226 P.3d at 1086. However, the division did so after finding that there was sufficient evidence to support a total valuation of approximately $10,400. See id. (finding the face value of the unrecovered items, defendant’s concession to the value of certain items, and replaced items equaled approximately $10,400). ¶ 29 Here, the prosecution did not offer sufficient evidence to support the valuation for any of Lagodny’s goods. But between Lagodny’s valuation testimony and a responding officer’s testimony

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that some of the clothes still “had the price tags on them,” the prosecution did offer sufficient evidence that the stolen items had some value. And “where a theft is established by the evidence, but the classification of the theft charged is not proven by competent evidence of value,” the proper remedy is to remand for entry of judgment on the lowest classification of theft, which does not require proof of the stolen item’s value. People v. Jaeb, 2018 COA 179, ¶¶ 42, 44. ¶ 30 At the time of McKimmy’s offense, theft was a class 1 petty offense “if the value of the thing involved is less than fifty dollars.” § 18-4-401(2)(b), C.R.S. 2021. Thus, we reverse and remand for an entry of judgment and resentencing on the class 1 petty offense of theft.

III. Reasonable Suspicion for Stop ¶ 31 McKimmy contends that the police lacked reasonable suspicion to stop him and that the court should have suppressed the evidence discovered as a result of the purportedly unconstitutional seizure. We disagree that the investigatory stop was improper.

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A. Applicable Law and Standard of Review ¶ 32 Individuals have a constitutional right to be free from unreasonable searches and seizures. U.S. Const. amends. IV, XIV; Colo. Const. art. II, § 7. “Police interactions with the public fall into three categories for search and seizure analysis: consensual interviews, investigatory stops, and arrests.” People v. Whitaker, 32 P.3d 511, 514 (Colo. App. 2000), aff’d, 48 P.3d 555 (Colo. 2002). “A consensual interview can escalate into an investigatory stop, and thus implicate the protections of the Fourth Amendment, if, upon objective review of the totality of the circumstances, a reasonable person would not feel that [they were] free to leave or to disregard the officer’s request for information.” Id. ¶ 33 An investigatory stop does not violate the Fourth Amendment if the officer has reasonable suspicion that the person detained is or was involved in criminal activity. People v. Vaughn, 2014 CO 71, ¶ 11. In determining whether an officer had a reasonable suspicion to conduct an investigatory stop, “we ask whether there were ‘facts known to the officer,’ which ‘taken together with rational inferences from those facts,’ gave rise to ‘a reasonable and articulable suspicion of criminal activity’ justifying the intrusion into the

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defendant’s personal privacy.” People v. Wheeler, 2020 CO 65, ¶ 13 (quoting People v. Funez-Paiagua, 2012 CO 37, ¶ 9). ¶ 34 Whether an officer had reasonable suspicion to conduct an investigatory stop is a mixed question of fact and law. People v. Ramirez, 1 P.3d 223, 226 (Colo. App. 1999). We defer to the court’s findings of fact if they are supported by the record but review legal conclusions de novo. Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007).

B. Additional Background ¶ 35 Before trial, McKimmy filed a motion to suppress in which he argued that Sergeant Parsons did not have reasonable suspicion to detain him. At a pretrial hearing on the motion, Sergeant Parsons testified that police were dispatched to a residence after the homeowner, who identified himself as Patrick Lagodny, called 911 to report that a man was inside his home and robbing him. Dispatch relayed that Lagodny and the intruder had made their way outside. Dispatch did not have a description of either man. ¶ 36 Sergeant Parsons testified that, as he was responding to the call, he was flagged down by a construction worker who told him that two men were fighting nearby. Sergeant Parsons contacted the

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two men approximately one block away from the residence. They were not fighting at the time of contact; rather, one man was walking after the other. ¶ 37 Upon initial contact, Sergeant Parsons noted that the man in front, later identified as McKimmy, “had blood on his face and around his mouth.” Sergeant Parsons asked McKimmy “if he was Patrick?” McKimmy answered “no” and continued to walk past him. Sergeant Parsons asked McKimmy “what was going on,” and McKimmy said that Lagodny “assaulted him.” As McKimmy attempted to walk by, Sergeant Parsons told him to “stay here, stay here,” and when McKimmy continued walking, Sergeant Parsons grabbed him by the arm to hold him in place. Sergeant Parsons described McKimmy’s demeanor as “tired and out of breath” and said McKimmy was “dismissive of interacting and communicating with me.” Sergeant Parsons asked Lagodny who McKimmy was, and Lagodny responded that he “didn’t know[,] but he was inside my house.” ¶ 38 Following a hearing on the motion, the trial court issued a written order denying the motion to suppress. The court found that Sergeant Parsons had a reasonable suspicion of criminal activity

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based on specific and articulable facts, along with reasonable inferences.

C. Analysis

¶ 39 We conclude that Sergeant Parsons initiated the investigatory stop when he ordered McKimmy to “stay here.” A reasonable person would not feel that they were free to leave or to disregard Sergeant Parsons’s order. Whitaker, 32 P.3d at 514; see also Stone v. People, 485 P.2d 495, 497 (Colo. 1971) (“[A] substantial percentage of people when asked by a police officer to stop will obey the request, and many individuals in this situation would feel that they were not free to go.”). ¶ 40 At that point, Sergeant Parsons knew the following: (1) Someone named Patrick had reported that his home had been burglarized; (2) Patrick and the male perpetrator were outside; (3) two men were described as “fighting” near the residence; (4) approximately one block away from the residence, one man was walking after another; (5) the man in front had blood on his face; (6) the man in front denied that he was Patrick; and (7) the man in front said that he had been assaulted but was nonetheless resistant to the officer’s intervention.

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¶ 41 Individually, these factors would likely not provide reasonable suspicion. See People v. Martin, 2014 COA 112, ¶ 22 (“While the presence of a single factor alone is generally insufficient to support an investigatory stop, the presence of some of these circumstances in combination may raise a reasonable suspicion of criminal activity that justifies the intrusion.” (quoting People v. Rushdoony, 97 P.3d 338, 342 (Colo. App. 2004))). But “[a]n officer is entitled to draw reasonable inferences from all the circumstantial evidence ‘even though such evidence might also support other inferences.’” People v. Threlkel, 2019 CO 18, ¶ 20 (quoting People v. Reyes-Valenzuela, 2017 CO 31, ¶ 14). Given the information available to Sergeant Parsons, it was reasonable for him to infer that the two men — who a bystander reported were fighting,1 and one of whom was injured and dismissive of the sergeant’s inquiries — were involved with the burglary reported one block away. It was also reasonable for Sergeant Parsons to infer that McKimmy — who denied he was “Patrick,” the homeowner — was the burglar. Sergeant Parsons had

1 Though the People do not argue this point, we note that fighting in

public is itself a criminal offense that a police officer may need to investigate. § 18-9-106(1)(d), C.R.S. 2025.

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a reasonable and articulable suspicion of criminal activity that gave rise to his investigatory stop. See Wheeler, ¶ 13. Consequently, the investigatory stop did not violate McKimmy’s constitutional rights. Vaughn, ¶ 11 IV. Prosecutorial Misconduct ¶ 42 McKimmy next argues that prosecutorial misconduct deprived him of a fair trial. We disagree.

A. Standard of Review and Applicable Law ¶ 43 We apply a two-step analysis to prosecutorial misconduct claims. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First, we must determine whether the prosecutor’s conduct was improper based on the totality of the circumstances. Id. Second, we must determine if any improper conduct warrants reversal according to the proper standard. Id. ¶ 44 A prosecutor has wide latitude to make arguments based on facts in evidence, People v. Maloy, 2020 COA 71, ¶ 61, and in responding to arguments made by defense counsel, People v. Cuellar, 2023 COA 20, ¶ 71. But it is improper for a prosecutor to denigrate defense counsel. People v. Parea, 126 P.3d 241, 247 (Colo. App. 2005).

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B. Analysis

¶ 45 McKimmy contends that the prosecutor committed prosecutorial misconduct when he (1) highlighted McKimmy’s lack of cooperation during the investigatory stop; (2) elicited victim impact testimony; and (3) asked jurors to imagine how Lagodny was feeling during the event. The specific statements at issue are as follows:

• The prosecutor asked Sergeant Parsons, “[W]hat was [McKimmy’s] demeanor like [during the investigatory stop]”?

• The prosecutor asked what Officer Michael Cotten meant when he said that McKimmy “seemed unwilling” to give his name.

• The prosecutor asked Lagodny “how [he was] feeling [during the 911] call.”

• The prosecutor asked Lagodny “what [his] emotional state [was] like” when speaking with the police.

• The prosecutor, during closing argument, referenced testimony that Lagodny “looked like he needed a hug”

after the events, told the jurors he was “not asking [them]

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to put [themselves] in his shoes,” argued he “bet [Lagodny] looked like he needed a hug,” and said, “I can’t imagine being in [Lagodny’s] shoes.”

¶ 46 We discern no prosecutorial misconduct in any of these statements. ¶ 47 The prosecution of this case hinged on Lagodny’s testimony regarding McKimmy’s presence in his house and the series of events that followed, making Lagodny’s credibility a key issue. See People v. Monroe, 925 P.2d 767, 770 (Colo. 1996) (holding credibility of eyewitness identification is a question for the jury). The prosecutor questioned the responding officers about McKimmy’s actions at the time of the stop to highlight for the jury the credibility issues arising from McKimmy’s version of events. The prosecutor similarly highlighted Lagodny’s emotional reaction during the 911 call and as he testified because his tone and demeanor in response to the events were relevant to his credibility. ¶ 48 And in closing arguments, the prosecutor (albeit inelegantly) emphasized that Lagodny’s emotional state was a direct response to McKimmy’s presence in his house and his subsequent threats. See People v. McBride, 228 P.3d 216, 221 (Colo. App. 2009) (affording

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prosecutor the benefit of the doubt for inartful remarks). True, the prosecutor’s comments as to his personal impressions — that he “bet” Lagodny looked like he needed a hug and that he “could not imagine being in [Lagodny’s] shoes” were inartful. But they were said in passing, referenced another witness’s specific testimony, and immediately followed the prosecutor’s assurance that he was not asking the jurors to put themselves in Lagodny’s shoes. Thus, we discern no prosecutorial misconduct in these statements. See People v. Samson, 2012 COA 167, ¶ 30 (“[B]ecause arguments delivered in the heat of trial are not always perfectly scripted, reviewing courts accord prosecutors the benefit of the doubt when their remarks are ambiguous or simply inartful.”). In any event, because McKimmy did not object to these comments, we would not reverse even if these comments had been improper because they were not “flagrantly, glaringly, or tremendously improper.” People v. Ray, 2025 CO 42M, ¶ 131 (quoting People v. Robinson, 2019 CO 102, ¶ 19). ¶ 49 McKimmy also argues that the prosecutor denigrated defense counsel and defense counsel’s theory during closing arguments. McKimmy challenges two particular statements by the prosecutor

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about the defense theory that the police had planted evidence: (1) “[B]oy, is it a hell of an allegation to sit there, like [defense counsel] just did, and accuse two [police] officers of planting evidence, which is what she just did”; and (2) “that argument is vague, it is speculative, and it is utterly imaginary.” ¶ 50 McKimmy’s counsel objected to the first statement on the grounds that it was “improper” and was “degrading [the] defense.” The trial court responded, “Ladies and gentlemen, this is argument okay,” and then it told the prosecutor, “Don’t make it personal.” McKimmy did not ask for greater clarity in the court’s ruling; nor did he ask for any further remedy. Because the court apparently addressed McKimmy’s objection to his satisfaction, we discern no reversible error. ¶ 51 The second statement, to which McKimmy did not object, was a valid response to defense counsel’s closing argument, in which she noted that the positioning of a glove allegedly worn by McKimmy and discarded at the scene was irregular, it was not visible on the responding officer’s body camera, and there was a period of time when the same officer’s body camera was turned off for six minutes. In any event, it was not so “flagrantly, glaringly, or

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tremendously improper” as to constitute plain error. Ray, ¶ 131 (quoting Robinson, ¶ 19).

V. Habitual Criminal Counts ¶ 52 McKimmy contends that the trial court violated his constitutional rights when it adjudicated the habitual criminal counts rather than submitting them to a jury. We agree but conclude that the error was harmless beyond a reasonable doubt.

A. Applicable Law and Standard of Review ¶ 53 As relevant here, a defendant who is convicted of a felony may be adjudged a habitual offender if they have been “three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes.” § 18-1.3-801(2)(a)(I), C.R.S. 2025. Such a habitual offender must receive a prison term of four times the maximum presumptive range for the class of felony of which they are convicted in the current case. § 18-1.3-801(2)(a)(I)(A). ¶ 54 “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490

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(2000). Whether prior convictions arose from separate and distinct criminal episodes is a factual inquiry that requires a jury determination. See Erlinger v. United States, 602 U.S. 821, 838 (2024); People v. Gregg, 2025 CO 57, ¶ 25. ¶ 55 We review constitutional challenges to a trial court’s sentencing determinations de novo. People v. Kirby, 2024 COA 20, ¶ 55. “[E]rrors of the kind presented here (i.e., those that omit an element of the offense from the jury’s review) are nonstructural and therefore, when preserved, are subject to constitutional harmless error review.” Brown v. People, 2026 CO 51, ¶ 48. Constitutional harmless errors require reversal “unless the reviewing court is ‘able to declare a belief that [the error] was harmless beyond a reasonable doubt.’” Hagos v. People, 2012 CO 63, ¶ 11 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).

B. Analysis

¶ 56 McKimmy argues that the trial court erred when it made factual findings regarding McKimmy’s identity as the convicted individual in the prior offenses and determined that the prior offenses were separately brought and tried and arose from separate and distinct criminal episodes.

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¶ 57 We disagree with McKimmy’s assertion that proof of identity is a factual inquiry separate from the fact of a prior conviction — and one that must be proved to a jury. Nothing in Erlinger suggests that, when considering prior convictions under Apprendi, the court may not make the determination that the defendant is the person who suffered those convictions. To the contrary, the United States Supreme Court reiterated its prior holding: The judge “can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.” Erlinger, 602 U.S. at 840 n.3 (emphasis added) (quoting Mathis v. United States, 579 U.S. 500, 511-12 (2016)). Indeed, if a judge were only permitted to find that a particular felony conviction had entered in the past, but not that the defendant had been the one convicted of that felony, it would reduce the prior crime exception to a nullity. Thus, consistent with Erlinger, we conclude that the judge may determine not only “what crime [and] what elements” the prior offense involved, but also that it was “the defendant” who was convicted. Id. (quoting Mathis, 579 U.S. at 511-12). ¶ 58 We agree with McKimmy, however, that he was entitled to have a jury determine whether his prior convictions were separately

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brought and tried and whether they arose out of separate and distinct criminal episodes. Id. at 838; Gregg, ¶ 24. Although the trial court sentenced McKimmy almost two years before Erlinger was decided, McKimmy is entitled to the application of the Erlinger decision in this direct appeal. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final . . . .”). Nevertheless, we conclude that the error was constitutionally harmless. See Brown, ¶¶ 48-53. ¶ 59 The record in this case shows the following details for the convictions the trial court found had been proved.

Conviction Case Number2 Offense Date Conviction Date 1987 burglary 87CR1115 Not identified 3/7/88 1991 burglary 91CR443 2/25/91 12/3/91 1991 bribery 91CR1410 7/3/91 12/3/91

first 2008 08CR543 9/1/07 12/8/08 burglary second 2008 08CR552 7/10/07 12/8/08 burglary

2 Because all the prior convictions the prosecution proved were Jefferson County cases, we refer only to the case numbers.

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¶ 60 The trial court determined that all these convictions arose from different criminal episodes and were separately brought and tried. Where several charges are resolved through guilty pleas, they satisfy the requirement of “separately brought and tried” when, “had they not been adjudicated through the entry of guilty pleas, [they] would have been tried separately.” People v. Williams, 2019 COA 32, ¶ 38 (quoting Gimmy v. People, 645 P.2d 262, 267 (Colo. 1982)). Here, the record is unclear whether the charges in the two 1991 cases or the two 2008 cases would have been tried separately. Nor does the record reveal whether there would have been a basis to join them. ¶ 61 We need not resolve this issue, however, because even if we were to treat the two 1991 convictions as a single predicate and, similarly, the two 2008 convictions as a single predicate, it is beyond any doubt that the 1987 burglary, the 1991 convictions, and the 2008 convictions did not arise from the same criminal episode and were separately brought and tried. The 1987 burglary conviction entered before McKimmy committed the 1991 offenses; and the 1991 convictions entered before McKimmy committed the 2008 offenses. Thus, it would have been impossible to jointly try

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the 1987 case with the 1991 or 2008 cases, or the 1991 cases with the 2008 cases. ¶ 62 In short, the evidence is indisputable that the prosecution proved that McKimmy had (at least) three prior felony convictions — in 1987, 1991, and 2008 — which necessarily arose from different criminal episodes and were separately brought and tried. No rational jury could have concluded otherwise. Thus, the trial court’s failure to submit the matter to a jury was harmless beyond a reasonable doubt, see Brown, ¶ 53, and reversal is not warranted, see Hagos ¶ 11.

VI. Disproportionate Sentences ¶ 63 McKimmy argues that the trial court’s sentences were grossly disproportionate. We disagree.

A. Standard of Review and Applicable Law ¶ 64 We review the proportionality of a sentence de novo. People v. Thomeczek, 284 P.3d 110, 117 (Colo. App. 2011). ¶ 65 Colorado courts conduct a two-step analysis when considering a proportionality challenge. People v. Crawley, 2024 COA 49, ¶ 9. In the first step, the trial court conducts an abbreviated proportionality review. Id. “The two subparts in step one entail an

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analysis of: (1) the gravity or seriousness of all the offenses in question — the triggering offense and the predicate offenses; and (2) the harshness of the sentence imposed on the triggering offense.” Wells-Yates v. People, 2019 CO 90M, ¶ 23. ¶ 66 The grave or serious inquiry requires the trial court to evaluate the facts and circumstances underlying the offense and consider the harm caused or threatened to the victim or society and the culpability of the offender. Id. at ¶ 12. “[W]hen the proportionality of a habitual criminal sentence is challenged, the grave or serious inquiry includes consideration of the defendant’s history of felony recidivism.” Id. at ¶ 23. ¶ 67 If a crime is considered per se grave or serious — that is, it would be grave or serious in every potential factual scenario — the trial court need not consider the particular facts and circumstances underlying the offense. People v. Session, 2020 COA 158, ¶¶ 34-36. Instead, it may proceed directly to consideration of the harshness of the penalty. Id. at ¶ 34. ¶ 68 Taken together, the two subparts of step one require a reviewing court to determine “whether in combination [the triggering offense and the predicate offenses] are so lacking in

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gravity or seriousness so as to suggest that the sentence is unconstitutionally disproportionate to the crime, taking into account the defendant’s eligibility for parole.” Wells-Yates, ¶ 23; see Session, ¶ 38. If the court’s consideration of the gravity or seriousness of the offenses in comparison to the harshness of the sentence “gives rise to an inference of gross disproportionality,” the court moves on to the second step, in which it conducts an extended proportionality review by comparing “the challenged sentence to sentences for other crimes in the same jurisdiction and the same crime in other jurisdictions.” Crawley, ¶ 9.

B. Analysis

1. McKimmy’s Offenses are Grave and Serious ¶ 69 We begin by noting McKimmy’s substantial history of felony recidivism, which spans four decades and — significantly — includes several instances of burglarizing people’s homes. See Wells-Yates, ¶ 47 (noting that the seriousness of a defendant’s criminal conduct may be exacerbated if the defendant has committed similar offenses in the past). And at least three of the predicate burglaries involved McKimmy breaking into someone’s

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home and stealing property worth thousands of dollars.3 While we agree that second degree burglary is not per se grave or serious because there are fact patterns that would not be considered as such, see Session, ¶ 48, the gravity and seriousness of burglary increases when it involves a person’s dwelling or the risk of a dangerous confrontation, id. Moreover, while one individual burglary may not be grave or serious, we cannot say that McKimmy’s numerous burglaries, when viewed in combination, are “lacking in gravity or seriousness.” Wells-Yates, ¶ 23. ¶ 70 We then turn to whether each of his triggering offenses, in combination with this serious recidivist history, is “so lacking in gravity or seriousness as to give rise to an inference that the sentence imposed on that particular triggering offense is grossly disproportionate.” Id. at ¶ 38. ¶ 71 The first degree burglary and aggravated robbery convictions are per se grave and serious. Session, ¶ 47 (first degree burglary); People v. Wright, 2021 COA 106, ¶ 67 (aggravated robbery). Thus, for those offenses we can skip directly to the second subpart of step

3 As the trial court noted, no information was provided as to the factual background of the 1991 burglary.

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one and consider the harshness of the sentence imposed on these counts. See Wells-Yates, ¶ 13. ¶ 72 The second degree assault involved McKimmy injuring Lagodny with a knife, albeit only slightly. McKimmy acted with the intent to cause injury and used a deadly weapon in doing so. Similarly, the menacing was based on McKimmy brandishing the knife toward Lagodny in Lagodny’s own home. McKimmy acted knowingly and introduced a deadly weapon into the scenario, thereby significantly increasing the risk of harm. Thus, we conclude that McKimmy’s second degree assault and menacing offenses were grave and serious. See id. at ¶ 12. ¶ 73 Finally, though it is a closer call, we reject McKimmy’s argument that the attempted motor vehicle theft was not grave or serious because he was simply trying to escape. Indeed, if anything, the attempt to flee the scene of the crime makes this offense more — not less — serious. In any event, given that the attempt to steal the car was accompanied by violence, we cannot say the crime was not grave and serious. And to the extent the facts of this particular offense were less grave or serious, McKimmy’s recidivist history fills any gap. See id. at ¶ 23.

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¶ 74 We thus conclude that when each of McKimmy’s triggering offenses is viewed in combination with his predicate offenses, that combination of crimes is sufficiently grave and serious to satisfy the first subpart of step one of the proportionality analysis. We turn, then, to the second subpart — the harshness of the sentence imposed on each triggering offense. Id. at ¶ 27.

2. McKimmy’s Sentences Are Not Grossly Disproportionate to the Severity of the Crimes

¶ 75 In reviewing the harshness of a defendant’s sentence, we presume that the sentence established by our General Assembly is constitutional. People v. Kennedy, 2025 CO 63, ¶ 14. Accordingly, “a great deal of deference is due to legislative determinations regarding sentencing.” People v. Deroulet, 48 P.3d 520, 523 (Colo. 2002), abrogated on other grounds by Wells-Yates, ¶¶ 16-17. Indeed, the supreme court has cautioned that the need to preserve “the primacy of the General Assembly in crafting sentencing schemes” means that statutorily authorized sentences will rarely be so harsh as to be unconstitutionally disproportionate. Id. at 526.

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¶ 76 McKimmy’s adjudication as a habitual criminal resulted in the following prison sentences4:

• sixty-four years for first degree burglary;

• sixty-four years for aggravated robbery;

• thirty-two years for second degree assault;

• twelve years for felony menacing;

• six years for attempt to commit aggravated motor vehicle theft;5 and

• three years for theft.6

4 Other than his challenge to the process by which he was adjudged

a habitual offender, McKimmy does not, and cannot, argue that the sentences imposed were not legally authorized by the statute. 5 Though McKimmy was charged with aggravated motor vehicle

theft, a class 5 felony, the jury verdict reflects a conviction for the lesser included offense of criminal attempt to commit aggravated motor vehicle theft. The mittimus, however, reflects a conviction for the original charge. Nevertheless, the six-year sentence is commensurate with a habitual criminal sentence for a class 6 felony (consistent with the jury’s verdict). Because neither party asserts a challenge to the mittimus, we do not address it further. 6 As to McKimmy’s theft conviction, the court initially imposed a

twelve-year sentence but later found that sentence to be disproportionate and modified it to a three-year sentence. Neither party challenges that modification. In any event, in light of our reversal of McKimmy’s theft conviction and remand for entry of a conviction on a petty offense, we need not consider any proportionality issues related to the theft offense.

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McKimmy is eligible for parole on each of these sentences. See Wells-Yates, ¶ 14 (“Our treatment of the harshness of the penalty (the second subpart of step one) is somewhat unique in that we explicitly consider parole eligibility.”). ¶ 77 Given the seriousness of the conduct underlying each of McKimmy’s felony convictions — particularly when viewed in light of his lengthy history of similar behavior — and the fact that he is parole eligible, we cannot say that any of his sentences present the rare situation in which there is an inference of gross disproportionality. See Deroulet, 48 P.3d at 526-27.

VII. Warrant

¶ 78 McKimmy contends the court erred by approving an overbroad warrant. We disagree.

A. Applicable Law and Standard of Review ¶ 79 The United States and Colorado Constitutions require warrants to be issued with particularity and only upon a showing of probable cause. U.S. Const. amend. IV; Colo. Const. art. II, § 7. The particularity standard requires the court to ask “whether the description in a warrant is sufficiently particular that it enables the executing officer to reasonably ascertain and identify the things

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authorized to be seized.” People v. Roccaforte, 919 P.2d 799, 803 (Colo. 1996). And to determine whether “the affidavit accompanying the warrant creates a substantial basis for the conclusion that probable cause exist[s],” People v. Miller, 75 P.3d 1108, 1112 (Colo. 2003), we examine the totality of the circumstances. People v. Altman, 960 P.2d 1164, 1167 (Colo. 1998). “As a part of [the probable cause] inquiry, the affidavit must supply a sufficient nexus between criminal activity, the things to be seized, and the place to be searched.” People v. Kazmierski, 25 P.3d 1207, 1211 (Colo. 2001). ¶ 80 Our review of the trial court’s ruling on a motion to suppress presents a mixed question of fact and law. Dhyne v. People, 2024 CO 45, ¶ 8. We defer to the trial court’s findings of fact if they are supported by the record but review legal conclusions de novo. Id. In particular, we review de novo whether a search warrant was overly broad. Pettigrew v. People, 2022 CO 2, ¶ 49.

B. Additional Background ¶ 81 Before trial, McKimmy filed a motion to suppress evidence obtained through a search warrant. McKimmy argued that the warrant was overly broad because the scope of the search warrant

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“essentially request[ed] all content and DATA that could possibly be found on [McKimmy’s] cell phone.” McKimmy also argued that the warrant was not supported by probable cause. The prosecution responded that the search warrant “contained sufficiently particularized language”; that the phone download “only cover[ed] a span of approximately [four] days,” which cut against an argument of overbreadth; and that the evidence should not be suppressed because the officer relied on the warrant in good faith. ¶ 82 The trial court denied the motion. It found that the affidavit “satisfied the probable cause and nexus requirements.” The court also found that “the Search Warrant in this case satisfies the Fourth Amendment particularity requirement.”

C. Analysis

¶ 83 We agree with the trial court. The warrant limited the scope of the request to any data, communications, photos, files, GPS data, and internet activity “relating to the planning and commission of the burglary.” The warrant did not authorize a general search of McKimmy’s phone. Cf. People v. Coke, 2020 CO 28, ¶ 37 (affirming suppression of contents of defendant’s cell phone after finding the warrant lacked particularity because “it permitted the officers to

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search all texts, videos, pictures, contact lists, phone records, and any data that showed ownership or possession”). ¶ 84 The warrant was also supported by probable cause. The affidavit set forth facts relating to the investigation. It noted that McKimmy was in possession of a cell phone at the time of arrest, that McKimmy denied the burglary and claimed that Lagodny attacked him, and that McKimmy alleged that his cell phone would prove he was never within the vicinity of Lagodny’s home. The affidavit explained that, based on information gleaned from McKimmy’s monitored phone calls while in jail, the police had reason to believe that McKimmy was working with a third party to identify and “scope[] out” Lagodny’s residence and, potentially, other residences in advance of the burglary. The police believed that McKimmy’s cell phone might contain information “that could provide [McKimmy’s] location information as well as show phone calls and messages” from the possible third party. In short, the affidavit amply provided a sufficient nexus between the burglary and the search of the phone. See Kazmierski, 25 P.3d at 1211.

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VIII. Sanction Request and Theory of Defense ¶ 85 Lastly, McKimmy contends that the trial court erred by denying (1) his sanction request following a prosecutorial discovery violation and (2) his proposed jury instruction related to that discovery violation. We disagree.

A. Applicable Law and Standard of Review ¶ 86 “The prosecuting attorney shall ensure that a flow of information is maintained between the various investigative personnel and [their] office sufficient to place within [their] possession . . . all material and information relevant to the accused and the offense charged.” Crim. P. 16(I)(b)(4). And the prosecuting attorney is obligated to make available to the defense materials within their possession no later than thirty-five days before trial. Crim. P. 16(I)(b)(3). ¶ 87 “In the event that a discovery violation is found, the decision whether to impose a sanction is within the sound discretion of the trial court.” People v. Lee, 18 P.3d 192, 196 (Colo. 2001). The discretion of the trial court in fashioning a remedy is not unlimited, and when creating the appropriate sanction, the court must consider certain factors, including “(1) the reason for the delay in

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providing the requisite discovery; [and] (2) any prejudice a party has suffered as a result of the delay.” Id. “Where a sanction is deemed necessary, therefore, the trial court should impose ‘the least severe sanction that will ensure that there is full compliance with the court’s discovery orders.’” Id. at 197 (quoting People v. Cobb, 962 P.2d 944, 949 (Colo. 1998)). The exclusion of evidence can be a proper remedy when faced with a pattern of neglect. Id. ¶ 88 We review a trial court’s denial of a motion for discovery sanctions for an abuse of discretion. People v. Tippet, 2023 CO 61, ¶ 34. ¶ 89 Trial courts also have broad discretion to determine the form of jury instructions so long as the jury is adequately instructed on the law. People v. Bielecki, 964 P.2d 598, 607 (Colo. App. 1998). Thus, we review a trial court’s decision to reject a jury instruction for an abuse of discretion. People v. Barnum, 217 P.3d 908, 910 (Colo. App. 2009). A trial court abuses its discretion when it misapplies or misconstrues the law or its decision is manifestly arbitrary, unreasonable, or unfair. People v. Liggett, 2021 COA 51, ¶ 16, aff’d, 2023 CO 22.

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B. Additional Background ¶ 90 On March 14, 2022, the prosecution collected buccal swabs and fingerprints from McKimmy. Approximately two weeks later (and thirty-five days before the trial), the prosecution requested an extension of the thirty-five-day deadline so the forensic testing results could still be introduced at trial notwithstanding their tardy disclosure under Crim. P. 16(V)(b)(1). McKimmy opposed the request. On April 8, the trial court issued an order denying the prosecution’s request after finding that it had not established good cause to extend the deadline (the sanction order). In the sanction order, the trial court sanctioned the prosecution for missing the deadline by excluding the results of the forensic testing at issue. ¶ 91 On April 19, McKimmy received the fingerprint results from the two knives collected. The results stated that “no lifts of value were recovered” from the knives. The date on the report showed that the detective received these results on April 6, 2022 — thirteen days before the prosecution disclosed them to the defense. McKimmy filed a motion for sanctions based on the thirteen-day delay. McKimmy’s request for relief included (1) prohibiting the People from proceeding on the crime of violence charges;

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(2) allowing McKimmy to introduce evidence that no fingerprints were found on the knives (without opening the door to the presentation of other forensic evidence); and (3) instructing the jury about the prosecution’s discovery violations and permitting the jury to consider them when determining whether the prosecution met its burden of proving McKimmy’s guilt. ¶ 92 After a hearing on McKimmy’s sanctions request, the trial court agreed that the prosecution committed a discovery violation and, citing the Lee factors, concluded that this constituted a pattern of neglect “[b]y the narrowest of margins” based on the previous Rule 16 violation addressed in the sanction order. However, the court also concluded that McKimmy was not prejudiced by the thirteen-day delay. Having already sanctioned the prosecution for the previous violation, the court “d[id] not believe any further sanction [other] than prohibiting the People from introducing any evidence relating to the test [wa]s necessary.” ¶ 93 The trial court also rejected McKimmy’s requested jury instruction, which provided as follows:

This court’s rules and Colorado’s criminal law require the District Attorney’s Office to disclose all evidence in its possession to the defendant

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prior to trial. The District Attorney’s Office has an additional requirement to disclose any information in its possession that is beneficial to the defense. These discovery requirements are designed to protect a defendant’s constitutional right to the presumption of innocence, the constitutional right to a fair trial, and to ensure the defendant’s ability to effectively challenge whether the prosecution has proven a case beyond a reasonable doubt.

These requirements in no way alleviate the prosecution’s burden of proof as defined in Instruction No. ___.

The jury is instructed that this court found the District Attorney’s Office has violated its obligations in this case and failed to disclose material evidence in its possession to the defendant prior to trial in accordance with its obligations. The jury is further instructed that since the burden of proof is on the prosecution the jury can consider these violations when conducting a fair and rational consideration of all the evidence, or lack of evidence, in this case.

¶ 94 The court found that the “instruction as drafted . . . encourage[d] the jury to in a way punish the People,” and that it informed the jury that it “can consider the [discovery] violations of the People when determining whether or not the defendant is guilty or not guilty.” The court considered its sanction sufficient and declined to include the instruction.

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C. Analysis

¶ 95 McKimmy argues that his requested sanction — dismissal of the crime of violence sentence enhancers — was necessary to deter future misconduct and to protect his rights. ¶ 96 As noted, “great deference is owed to trial courts” in their decisions regarding sanctions for discovery violations. Lee, 18 P.3d at 196. The trial court considered the necessary factors and ultimately concluded that the exclusion of the results was a sufficient sanction, particularly in light of its finding that McKimmy was not prejudiced. The trial court also considered but declined to adopt McKimmy’s request to dismiss the crime of violence charges because the case defense counsel relied on, People ex rel. Gallagher v. Dist. Ct., 656 P.2d 1287, 1288 (Colo. 1983), involved the total destruction of evidence as opposed to a thirteen-day delay that did not prejudice the defendant. Under the circumstances, we cannot say that the trial court’s decision to sanction the prosecution by only excluding the test results was manifestly arbitrary, unreasonable, or unfair. See Liggett, ¶ 16; see also Tippet, ¶ 64 (explaining that a trial court’s sanction decision is not an abuse of

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discretion if it “fell within a range of reasonable options” (quoting Churchill v. Univ. of Colo. at Boulder, 2012 CO 54, ¶ 74)). ¶ 97 McKimmy also argues that the trial court erred by denying his request for the jury instruction. Specifically, McKimmy argues that this instruction “embodied [his] theory of defense — that police mishandled the case, ultimately charging the wrong man.” ¶ 98 We reject McKimmy’s attempt to recharacterize the proposed instruction as a theory of defense instruction. A theory of defense instruction is a brief instruction that explains the evidence and its legal effect. People v. Bruno, 2014 COA 158, ¶ 19. The proposed instruction did not reference any evidence or its legal effect. Instead, it referenced information that was not in evidence — i.e., the discovery violation. It then purported to suggest that the jury could give some legal effect to that nonevidentiary information. Significantly, McKimmy’s trial counsel never characterized the requested instruction as a theory of defense instruction, nor did her argument or the proposed instruction itself draw any connection to the defense theory that the police mishandled the investigation or arrested the wrong person. Rather, the instruction asked the jury to punish the prosecution for a discovery violation for which the

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court had already imposed a sanction. Thus, the instruction was not a theory of defense instruction. ¶ 99 Beyond his theory of defense argument, McKimmy offers no basis for requiring the court to give a jury instruction of this nature. The trial court clarified that it was rejecting the proposed jury instruction because “there is no authority cited in the motion, nor [did McKimmy show] that such a[n] instruction is appropriate.” We cannot say the trial court abused its discretion in declining to include the proposed instruction. See Barnum, 217 P.3d at 910.

IX. Disposition

¶ 100 We reverse McKimmy’s conviction for felony theft, and we remand the case to the trial court to impose a conviction and sentence for petty offense theft. We affirm the judgment in all other respects.

JUDGE HARRIS and JUDGE BROWN concur.