People v. Thomeczek

284 P.3d 110, 2011 WL 3618111, 2011 Colo. App. LEXIS 1394
CourtColorado Court of Appeals
DecidedAugust 18, 2011
DocketNo. 09CA0863
StatusPublished
Cited by16 cases

This text of 284 P.3d 110 (People v. Thomeczek) 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. Thomeczek, 284 P.3d 110, 2011 WL 3618111, 2011 Colo. App. LEXIS 1394 (Colo. Ct. App. 2011).

Opinion

Opinion by

Judge TERRY.

Defendant, Robin Gene Thomeezek, appeals the judgment of conviction entered on [114]*114jury verdicts finding him guilty of second degree burglary, violation of a protection order, and harassment. He also appeals the sentence imposed for the burglary conviction. We affirm.

I. Background

Defendant is the ex-husband of the victim, M.N. On January 16, 2008, defendant repeatedly hit M.N. and pulled her hair (January incident). The altercation led to a protection order prohibiting defendant from, among other things, entering M.N.'s resi-denee or contacting her.

Despite the protection order, M.N. occasionally allowed defendant to watch their children and eat family dinners at the residence. However, on the morning of April 26, 2008, defendant went to the residence uninvited (April incident). He entered the residence, criticized the pants M.N. was wearing, and hit her hard on the buttocks. He picked up a telephone and threw it at her, telling her to "call the [expletive] cops." The phone hit M.N.'s head.

M.N. called the police, and defendant fled when an officer arrived. The officer chased defendant for several blocks but was unable to apprehend him. Later that day, officers were called back to the residence and found defendant hiding in the garage.

II. Res Gestae Evidence

Defendant contends the trial court abused its discretion in admitting res gestae evidence of the January incident. We disagree.

We review a trial court's rulings on evidentiary matters for an abuse of discretion, and we will not reverse such a ruling unless it is manifestly arbitrary, unreasonable, or unfair. Kaufman v. People, 202 P.3d 542, 553 (Colo.2009).

"Res gestae is a theory of relevance which recognizes that certain evidence is relevant because of its unique relationship to the charged crime." People v. Greenlee, 200 P.3d 363, 368 (Colo.2009). It includes incidental matters necessary to explain the charged crime, People v. Rollins, 892 P.2d 866, 872-73 (Colo.1995), and "provides the fact-finder with a full and complete understanding of the events surrounding the crime and the context in which the charged crime occurred." People v. Lucas, 992 P.2d 619, 624 (Colo.App.1999). Generally, res gestae evidence is linked in time and cireumstance to the charged crime. People v. Quintana, 882 P.2d 1366, 1378 (Colo.1994).

To be admissible, res gestae evidence needs to be relevant, and its relevance must not be outweighed by the danger of unfair prejudice. People v. Czemerynski, 786 P.2d 1100, 1109 (Colo.1990). The procedural requirements of CRE 404(b) do not apply to res gestae evidence. Id.

Here, defendant asserts that evidence of the January incident was not proper res ges-tae evidence because it was not "part and parcel" of the April incident and was not necessary for the jury to obtain a complete understanding of the latter incident. He also asserts that evidence of the January incident that led to issuance of the protection order had no bearing on whether he violated the order in the April incident We disagree with these assertions.

Evidence of the January incident and the parties' conduct thereafter was, indeed, necessary to a full understanding of why the victim and defendant may have behaved as they did in the charged incident, and was probative of defendant's intent with regard to the burglary and harassment charges. This evidence would have helped the factfin-der to understand why the victim might have admitted defendant into the residence despite the protection order; what his intent was when he entered the residence; what his intent was when he hit the victim hard on the buttocks; and why he threw a telephone at her and told her to call the police (implying that he knew of the protection order). See People v. Merklin, 80 P.3d 921, 925 (Colo.App.2003) (the defendant's history of repeatedly telephoning the victim was admissible as res gestae evidence in trial for violation of restraining order); People v. Shepherd, 43 P.3d 693, 697 (Colo.App.2001) (in burglary trial where the victim had restraining order against the defendant, prosecutor's argument regarding the relationship between [115]*115the defendant and the victim, and the defendant's prior actions toward the victim, referred to admissible res gestae evidence pertinent to the burglary charge and did not amount to prosecutorial misconduct); People v. Allen, 944 P.2d 541, 546 (Colo.App.1996) (evidence of events leading to issuance of restraining order against the defendant was admissible as res gestae evidence in prosecution for the defendant's later entry into the victim's home and threats against the victim). The temporal separation of the two events here does not alter our res gestae analysis. People v. Gladney, 250 P.3d 762, 768 (Colo.App.2010) ("[Wle have held that conduct occurring months ... before a charged crime may be admissible as res gestae evidence.").

We further conclude that the probative value of this evidence outweighed any potential for unfair prejudice. Any prejudice was mitigated by the trial court's limiting instructions, which admonished the jury not to use the evidence to assess defendant's guilt or innocence.

Accordingly, we conclude the trial court did not abuse its discretion in admitting evidence of the January incident at trial.

III. Double Jeopardy-Lesser Included Offense

We next consider and reject defendant's contention that the crime of harassment, codified in section 18-9-111(1), C.R.S. 2010, is a lesser included offense of violation of a protection order, codified in section 18-6-808.5(1), C.R.S.2010, and that principles of double jeopardy therefore require us to merge his convictions for these two offenses.

Because defendant did not raise this argument in the trial court, our review is for plain error. People v. Tillery, 231 P.3d 36, 47 (Colo.App.2009) (cert. granted May 24, 2010). Generally, "[elrrors that so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction constitute plain error." People v. Vigil, 127 P.3d 916, 929-30 (Colo.2006). However, no definition of plain error will fit every case. Tillery, 231 P.3d at 48. "The underlying principle [of plain error, whether there is] 'a reasonable possibility that the error contributed to [the] conviction," can be restated as [whether there is] a reasonable possibility that the error contributed to the sentence. In the double jeopardy context, the answer would invariably be 'yes?" Id. (citations omitted).

The Double Jeopardy Clauses of the United States and Colorado Constitutions prevent the state from punishing a defendant twice for the same offense. Patton v. People, 35 P.3d 124, 128-29 (Colo.2001).

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Cite This Page — Counsel Stack

Bluebook (online)
284 P.3d 110, 2011 WL 3618111, 2011 Colo. App. LEXIS 1394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-thomeczek-coloctapp-2011.