People v. Sa'Ra

117 P.3d 51, 2004 Colo. App. LEXIS 2120, 2004 WL 2609558
CourtColorado Court of Appeals
DecidedNovember 18, 2004
Docket02CA2146
StatusPublished
Cited by19 cases

This text of 117 P.3d 51 (People v. Sa'Ra) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Sa'Ra, 117 P.3d 51, 2004 Colo. App. LEXIS 2120, 2004 WL 2609558 (Colo. Ct. App. 2004).

Opinion

117 P.3d 51 (2004)

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Iemhotep SA'RA, Defendant-Appellant.

No. 02CA2146.

Colorado Court of Appeals, Division III.

November 18, 2004.
Certiorari Denied August 8, 2005.

*54 Ken Salazar, Attorney General, John J. Fuerst, III, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

PICCONE, J.

Defendant, Iemhotep Sa'ra, appeals the judgment of conviction entered upon a jury verdict finding him guilty of escape from intensive supervised parole (ISP). We affirm.

Defendant was placed on mandatory parole for two years following service of a prison sentence for forgery. Defendant was required to establish a residence of record as a condition of his parole. Defendant designated his wife's residence as his residence of record.

Defendant's parole officer informed him that his residence of record could not be changed without his parole officer's consent and provided defendant with both oral and written notice that he must be at his residence of record during assigned curfew hours. The officer explained that if defendant were absent from his residence of record for more than twenty-four hours, he would be prosecuted for felony escape. Defendant signed several written notices acknowledging his understanding of these requirements and did not express any uncertainty or confusion about the consequences of being away from his residence of record for more than twenty-four hours.

On November 15, 2000, defendant failed to report to his parole officer. That same day, defendant's wife informed his parole officer that defendant had stopped residing with her. On November 20, 2000, defendant's wife told his parole officer that she last saw defendant on November 16, 2000. Defendant was arrested on January 28, 2001.

I.

Defendant contends the trial court erred in instructing the jury when it omitted the "extended limits" language of § 17-27.5-104, C.R.S.2004, from the jury instruction that set forth the elements of escape. We disagree.

Defendant objected to the escape instruction at trial on grounds different from those he now complains of on appeal. Therefore, we review his contention for plain error. See People v. Richards, 23 P.3d 1223 (Colo.App.2000). Under these circumstances, reversal is required if the defendant demonstrates "not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to his conviction." People v. Garcia, 28 P.3d 340, 344 (Colo.2001)(quoting Bogdanov v. People, 941 P.2d 247, 255-56 (Colo.1997)). "In ascertaining whether there was plain error, courts must consider the jury instructions as a whole to determine whether the jury was properly advised as to the law." People v. Rivas, 77 P.3d 882, 888 (Colo.App.2003).

Section 17-27.5-104 provides: "If an offender fails to remain within the extended limits on his confinement as established under the intensive supervision program . . . he shall be deemed to have escaped from custody and shall, upon conviction thereof, be punished as provided in section 18-8-208, C.R.S." A person commits escape as a class three felony "if, while being in custody or confinement following conviction of a felony *55 other than a class 1 or class 2 felony, he knowingly escapes from said custody or confinement." Section 18-8-208(2), C.R.S.2004.

As relevant here, the trial court instructed the jury as follows:

The elements of the crime of escape are:

1. That the defendant
2. in the State of Colorado, at or about the date and place charged,
3. was in lawful custody
4. following conviction of Forgery, a class 5 Felony, and
5. knowingly escaped from custody or confinement.

The court defined "custody and confinement" as follows: "As used in the escape statute, [the term] includes the status of an individual who is on Intensive Supervision Parole from the Department of Corrections."

We reject defendant's contention that plain error occurred because the jury was not instructed with the "extended limits" language of § 17-27.5-104. Contrary to his contention, the instructions as a whole instructed the jury on the crime of escape from ISP. The elements instruction for escape essentially tracked the pattern instruction. Further, the court's definition of custody and confinement informed the jury that ISP constitutes custody and confinement.

II.

Defendant contends the trial court violated his right to present a defense by excluding as irrelevant his sister's testimony that he lived with her in the Denver area. We disagree.

Trial courts have considerable discretion in deciding questions concerning the admissibility of evidence. People v. Ibarra, 849 P.2d 33, 38 (Colo.1993). Absent an abuse of discretion, a trial court's evidentiary rulings will be affirmed. To show an abuse of discretion, an appellant must establish that the trial court's decision to reject the evidence was manifestly arbitrary, unreasonable, or unfair. Ibarra, supra.

Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. CRE 401; People v. Kyle, 111 P.3d 491, 2004 WL 1690244 (Colo.App. No. 01CA1221, July 29, 2004).

As a condition of ISP, defendant signed a Parole Agreement/Order that stated defendant "shall establish a residence of record and shall reside at such residence in fact and on record; shall not change this place of residence without the consent of his parole officer; and shall not leave the area paroled to nor the state paroled to without permission of the parole officer."

Defendant sought to admit testimony of his sister that he was living with her in the Denver metro area after he failed to return to his residence of record. The trial court found that evidence to be irrelevant to the escape charge because the escape occurred when defendant left his residence of record.

Defendant executed an acknowledgment that he understood that should he leave his designated residence of record for a period in excess of twenty-four hours, he would be prosecuted for felony escape. It is clear from the record defendant was absent from his designated residence of record for a period in excess of twenty-four hours. Therefore, the trial court was correct in its finding that evidence that defendant was living in the Denver metro area was irrelevant to the escape charge. Once defendant failed to remain at his residence of record longer than twenty-four hours, he was considered "to have escaped from custody," regardless of where he lived thereafter. See § 17-27.5-104.

III.

Defendant contends the trial court erred in taking judicial notice that a person with defendant's name appeared before the court for sentencing on a prior felony. We disagree.

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Bluebook (online)
117 P.3d 51, 2004 Colo. App. LEXIS 2120, 2004 WL 2609558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-sara-coloctapp-2004.