v. Thomas

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
February 6, 2020

2020COA19

No. 16CA0107, People v. Thomas — Crimes — Resisting Arrest
— Assault in the Third Degree — Criminally Negligent Bodily
Injury to an At-Risk Adult; Criminal Law — Lesser Included
Offenses

A division of the court of appeals considers whether (1) a

defendant resisted arrest when he went limp while being moved to a

patrol car; (2) the condition of the area surrounding an arrest can

properly be considered to prove that a defendant’s resistance

created a substantial risk of causing bodily injury to the arresting

officer; (3) causing negligent injury to an at-risk adult is included in

third degree assault causing injury to another person; and (4)

section 18-1.3-801(2)(b), C.R.S. 2019, eliminates level 4 drug

felonies as triggering and predicate felonies under section

18-1.3-801(2)(a).
 The division concludes that, by going limp while being moved

to the patrol car, the defendant resisted arrest because he was

resisting police efforts to maintain physical control over him and to

proceed with arrest procedures of booking and bonding. People v.

Tottenhoff, 691 P.2d 340, 344-45 (Colo. 1984).

A defendant resists arrest when, among other things, he or

she uses means other than the direct use or threat of physical force

or violence that “create[] a substantial risk of causing bodily injury

to the peace officer or another.” § 18-8-103(1)(b), C.R.S. 2019. The

division concludes that this includes increasing the risk that a

peace officer or another will be injured by surrounding conditions.

The division also concludes that proof that the victim was a

person does not always prove that the victim was at least seventy

years old. Hence, negligent bodily injury to an at-risk adult is not a

lesser included offense of third degree assault causing injury to

another.

The division further concludes that section 18-1.3-801(2)(b)

eliminates level 4 drug felonies as triggering felonies for habitual

criminal sentencing, but does not prohibit courts from considering
level 4 drug felony convictions as predicate felony convictions.

Therefore, the division affirms the convictions and sentence.
COLORADO COURT OF APPEALS 2020COA19

Court of Appeals No. 16CA0107
Mesa County District Court No. 15CR304
Honorable Charles R. Greenacre, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Weston Jefferson Thomas,

Defendant-Appellant.

JUDGMENT AND SENTENCE AFFIRMED

Division I
Opinion by JUDGE CARPARELLI*
Taubman and Grove, JJ., concur

Announced February 6, 2020

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

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 Defendant, Weston Jefferson Thomas, appeals the judgment of

conviction and sentence entered on jury verdicts finding him guilty

of third degree assault (a class 6 felony), resisting arrest (a class 2

misdemeanor), and negligent bodily injury to an at-risk adult (a

class 6 felony). He also appeals his adjudication and sentencing as

a habitual criminal. We affirm.

I. Background

¶2 Thomas lived in a trailer on the victim’s property. According

to the victim, she went to Thomas’s trailer after receiving

complaints that Thomas was being loud and disruptive. When she

did so, Thomas grabbed her by the neck with two hands and

slammed her into a nearby parked car. During the altercation,

Thomas yelled at the victim that she “didn’t belong in this world.”

¶3 S.F., who lived in a nearby trailer, testified that he came out of

his trailer when he heard a ruckus. He said he saw Thomas with

two hands around the victim’s neck, holding her up against a

parked car, and yelling that she did not “need to be in this world.”

S.F. further testified that he separated Thomas from the victim and

restrained him on the ground until the police arrived. When the

police arrived, they arrested Thomas. As they attempted to

1
 handcuff him, Thomas resisted their efforts by flailing his arms. As

they attempted to put him in the patrol car, he resisted their efforts

by going limp.

¶4 At trial, the evidence centered on Thomas’s and the victim’s

conflicting testimony. The jury found Thomas guilty of third degree

assault, negligent bodily injury to an at-risk adult, and resisting

arrest.

II. Sufficient Evidence Supports Thomas’s Conviction for
Misdemeanor Resisting Arrest

¶5 Count 2 of the amended complaint and information alleged

that Thomas resisted arrest by using means that “created a

substantial risk of causing bodily injury to the peace officer or

another; in violation of section 18-8-103[(1)(b)], C.R.S. [2019].”

Thomas contends his conviction should be reversed because

(1) his conduct after he was handcuffed cannot properly be

considered to prove the offense of resisting arrest;

(2) the physical condition of the area in which he was

handcuffed and carried to the patrol car cannot properly

be considered to prove that he created a substantial risk

of causing bodily injury to the arresting officer; and

2
 (3) there is insufficient evidence that his conduct created a

substantial risk of causing bodily injury to the arresting

officer.

We reject each of these arguments in turn and conclude that the

evidence was sufficient to convict Thomas of resisting arrest.

A. Standard of Review and Applicable Law

¶6 We review a challenge to the sufficiency of the evidence de

novo. People v. Perez, 2016 CO 12, ¶ 8. To determine whether the

evidence presented at trial was sufficient to support a guilty verdict,

we evaluate whether the evidence, when viewed as a whole and in

the light most favorable to the prosecution, was substantial and

sufficient to support a conclusion by a reasonable mind that the

defendant is guilty of the charge beyond a reasonable doubt. Id. at

¶ 24. In doing so, we give the prosecution “the benefit of every

reasonable inference that may be fairly drawn from the evidence.”

People v. Davis, 2012 COA 56, ¶ 12.

¶7 A person is guilty of resisting arrest when “he knowingly

prevents or attempts to prevent a peace officer, acting under color of

his official authority, from effecting an arrest” by, among other

3
 things, using “means which create[] a substantial risk of causing

bodily injury to the peace officer or another.” § 18-8-103(1)(b).

B. The Evidence

¶8 One of the responding officers testified that he told Thomas he

was under arrest and instructed him to put his hands behind his

back. According to the officer, as he attempted to put the handcuffs

on, Thomas struggled and kept pulling his arms away. As that

officer tried to grab one of Thomas’s arms, a second officer tried to

grab the other arm.

¶9 The responding officer also testified that the area in which he

handcuffed Thomas was run down and had debris lying all over the

ground. He explained that it was a place where the police were

required to step over the debris. The officer testified that as he tried

to walk Thomas to the patrol car, Thomas went limp and the other

officer had to help carry Thomas approximately twenty feet to the

car. He testified that he watched his steps so he would not fall,

trying to walk Thomas back to the patrol car, stepping over debris,

and preventing Thomas from pulling away from him and fighting

him.

4
¶ 10 On cross-examination, Thomas admitted that he did not want

to be arrested and resisted “a little.” He also described the area in

which he was handcuffed and taken to the car as having “broken

glass, and TVs and microwaves, things like that” on the ground. He

admitted that if the officer had fallen on the ground, he could have

been injured. Thomas further agreed that “going limp when

somebody is trying to arrest you could easily cause them to fall

down[.]” He testified that because he “was shook up from being

jumped, and wanting to be with [his] dog,” he “wasn’t really

thinking about” the risks that his actions posed to the responding

officers.

C. Conduct After Handcuffing Properly Considered

¶ 11 Thomas contends that the arrest was completed when he was

handcuffed and that his conduct after that, including his resistance

to being transported to the patrol car, cannot properly be

considered to prove the offense of resisting arrest. We are not

persuaded.

¶ 12 To “effect an arrest, the peace officer must apply a level of

physical control over the person resisting the arrest so as to

5
 reasonably ensure that the person does not leave.” People v.

Armstrong, 720 P.2d 165, 169 (Colo. 1986) (emphases added).

¶ 13 The police told Thomas he was under arrest, and, by placing

handcuffs on him, the police exercised a level of physical control

over him. At that point, a reasonable person in Thomas’s situation

“would necessarily believe that he was being placed under arrest,”

was not free to leave, and instead was required to submit to booking

and bonding procedures at the jail. People v. Tottenhoff, 691 P.2d

340, 344-45 (Colo. 1984).

¶ 14 So long as the police were present, they had a level of physical

control over Thomas that reasonably ensured that he did not leave.

When the police completed their duties at the scene and were

leaving the area, they sought to maintain physical control over

Thomas by putting him in the patrol car and transporting him to

the police station for booking and bonding procedures. However,

Thomas went limp, and in doing so, he resisted the arrest and

created a substantial risk that the officers would be injured.

¶ 15 We conclude that it was proper for the jury to consider the

evidence of Thomas’s conduct after he was handcuffed with regard

to the charge of resisting arrest. We also conclude that, when

6
 viewed as a whole and in the light most favorable to the

prosecution, Perez, ¶ 8, there was substantial and sufficient

evidence to support a conclusion by a reasonable mind that by

going limp when the police took him to the patrol car, Thomas

knowingly attempted to prevent them from proceeding with the

arrest by, among other things, using means that created a

substantial risk of causing bodily injury to the officers. See

§ 18-8-103(1)(b).

¶ 16 We are not persuaded that a contrary conclusion is required

by People v. Thornton, 929 P.2d 729, 733 (Colo. 1996), and Wieder

v. People, 722 P.2d 396 (Colo. 1986), on which Thomas relies.

¶ 17 In Wieder, the defendant was found in a car that had struck a

power pole. As the police pulled him out of the car, the defendant

struggled and the police arrested him for drunk driving and

handcuffed him. They then led him to a patrol car and, as they

tried to put him in, he head-butted one officer and kneed the other

in the groin. 722 P.2d at 397.

¶ 18 Wieder was “convicted of second degree assault in violation of

section 18-3-203(1)(f), 8 C.R.S. (1978 and 1985 Supp.), which

makes unlawful an assault against a peace officer while ‘lawfully

7
 confined or in custody.’” Id. The court rejected Wieder’s contention

that second degree assault while confined or in custody “is limited

to conduct arising in a detention or correctional facility context and

does not apply to a field arrest situation.” Id. Citing Armstrong,

720 P.2d 165, the Wieder court said that “the definition of ‘custody’

necessarily differs from that of arrest for purposes of section 18-3-

203(1)(f) . . . , when the person subject to an arrest resists that

arrest.” 722 P.2d at 398.

¶ 19 Here, Thomas did not assault the officers as they took him to

the patrol car, he was not charged with or convicted of assault

under section 18-3-203(1)(f), and the definition of “custody” for

purposes of section 18-3-203(1)(f) is not in issue.

¶ 20 Thornton is similarly distinguishable. There, the defendant

was charged with felony escape under section 18-8-208(3), C.R.S.

2019. See 929 P.2d at 730. The defendant argued that he was

never “in custody or confinement” as required by the escape

statute. Relying on Armstrong, the Colorado Supreme Court

concluded that Thornton was “in custody” for purposes of the

escape statute because the police had established physical control

of him. Id. at 734-35. The supreme court explained that “[p]hysical

8
 control can be established by physical restraint or by the suspect’s

submission to control.” Id. at 734. And in Tottenhoff, the court

said that once physical control has been established, a suspect is

required to submit to booking and bonding procedures. 691 P.2d at

344-45.

¶ 21 The issue here is not whether Thomas was in custody for

purposes of section 18-8-208(3) or tried to escape, but, rather,

whether his resistance to being transported to the patrol car and

the police station for booking constituted resisting arrest. We

conclude that such conduct can constitute resisting arrest and that

it was proper for the court to submit the evidence to the jury for its

determination.

D. Physical Condition of Surrounding Area Properly Considered

¶ 22 We also reject Thomas’s contention that the physical condition

of the area in which he was handcuffed and carried to the patrol car

cannot properly be considered to prove that he created a

substantial risk of causing bodily injury to the officer. This

argument is contrary to logic and the plain meaning of the statute.

9
¶ 23 As pertinent here, a person commits resisting arrest when he

knowingly attempts to prevent a peace officer, acting under color of

his official authority, from effecting an arrest of him or another, by:

(a) Using or threatening to use physical force
or violence against the peace officer or another;
or

(b) Using any other means which creates a
substantial risk of causing bodily injury to the
peace officer or another.

§ 18-8-103(1).

¶ 24 We review the application of statutes de novo. Churchill v.

Univ. of Colo., 2012 CO 54, ¶ 68. When the statutory language is

clear, we apply its plain and ordinary meaning in a manner that

gives effect to the General Assembly’s intent, and we construe each

provision in the context of the statute “as a whole to give

‘consistent, harmonious and sensible effect to all [parts of the

statute].’” Bd. of Cty. Comm’rs v. Costilla Cty. Conservancy Dist., 88

P.3d 1188, 1192-93 (Colo. 2004) (quoting People v. Luther, 58 P.3d

1013, 1015 (Colo. 2002)); accord Lobato v. Indus. Claim Appeals

Office, 105 P.3d 220, 223 (Colo. 2005). And, in so doing, we must

not apply the statute in a manner that renders any part of it

meaningless or absurd or in a manner that leads to an illogical or

10
 absurd result. State v. Nieto, 993 P.2d 493, 501 (Colo. 2000); Kyle

W. Larson Enters., Inc. v. Allstate Ins. Co., 2012 COA 160M, ¶ 9.

¶ 25 Subsections (1)(a) and (1)(b) of section 18-8-103 provide

distinct ways in which a person can commit resisting arrest.

Subsection (1)(a) is plainly limited to the use or threat of physical

force or violence against an arresting officer. Implicit in this

description is that the accused knowingly attempted to prevent

arrest by causing or threatening to cause bodily injury either by

physical contact or an instrument of force or violence. In contrast,

subsection (1)(b) explicitly pertains to means other than the use or

threat of physical force and requires only that the other means

create a substantial risk of bodily injury.

¶ 26 Considering the two subsections together, we perceive nothing

in the plain language of the statute dictating that “other means”

cannot include conduct that puts an officer at risk of injury by

falling or contacting nearby objects or conditions. Accordingly, we

conclude that the jury could properly consider evidence of the

physical surroundings in which Thomas was handcuffed and

transported to the patrol car.

11
 E. Evidence Sufficient to Prove Resisting Arrest

¶ 27 Viewing the evidence in the light most favorable to the

prosecution, as we must, we conclude that it is sufficient “to

support a conclusion by a reasonable mind,” Perez, ¶ 24 (quoting

People v. Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)),

that Thomas resisted arrest by means other than the use or

threatened use of physical force and that those means created a

substantial risk of causing bodily injury to the arresting officer.

III. Counts 1 and 3 Do Not Merge

¶ 28 Thomas next contends that his conviction for criminally

negligent bodily injury to an at-risk adult (Count 3) should merge

into his conviction for third degree assault (Count 1) because the

former is a lesser included offense of the latter. We are not

persuaded.

A. Standard of Review

¶ 29 We review de novo whether an offense is a lesser included

offense of another. See People v. Torres, 224 P.3d 268, 275 (Colo.

App. 2009). Because Thomas did not assert merger in the trial

court, we review his contention for plain error.

12
 B. Lesser Included Offenses

¶ 30 Under section 18-1-408(5)(a), C.R.S. 2019, an offense is

included in another when it “is established by proof of the same or

less than all the facts required to establish the commission of the

offense charged[.]” Our supreme court has consistently evaluated

whether one offense is a lesser included offense of another within

the meaning of section 18-1-408(5)(a) by applying a “statutory

elements” or “strict elements” test. Reyna-Abarca v. People, 2017

CO 15, ¶ 53. In Reyna-Abarca, the court held that “an offense is a

lesser included offense of another offense if the elements of the

lesser offense are a subset of the elements of the greater offense,

such that the lesser offense contains only elements that are also

included in the elements of the greater offense.” Id. at ¶ 64. The

court commented that this test “aligns directly with and gives force

to the language of section 18-1-408(5)(a), which requires that a

lesser included offense be established by proof of the same or less

than all of the facts required to establish the greater offense.” Id. at

¶ 62. “Thus, a subset can always be established by the same or

fewer than all of the facts of the set of which it is a part.” Id.

13
 C. Thomas’s Convictions

¶ 31 On Count 3, Thomas was convicted of criminally negligent

bodily injury to an at-risk adult. 1 Thomas was also convicted, on

Count 1, of third degree assault, which required proof that he

“knowingly or recklessly cause[d] bodily injury to another

person . . . .” § 18-3-204(1)(a), C.R.S. 2019.

¶ 32 Thomas argues that Count 3 is a lesser included offense of

Count 1 because each of the essential elements of negligent bodily

injury to an at-risk adult is a subset of the essential elements of

knowingly or recklessly causing bodily injury to another person.

Based on the Reyna-Abarca court’s explanation and application of

the subset test, we conclude otherwise.

¶ 33 Proof that the victim was a person does not always prove that

the victim was at least seventy years old. Stated in the terms of

section 18-1-408(5)(a) and the Reyna-Abarca test, proof of injury to

an at-risk adult is not established by proof of the same or fewer

facts than are required to prove injury to another person. Thus,

1 “‘At-risk adult’ means any person who is seventy years of age or
older . . . .” § 18-6.5-102(2), (4.5), C.R.S. 2019.

14
 Reyna-Abarca and section 18-1-408(5)(a) both indicate that Count 3

is not included in Count 1.

¶ 34 In contrast, Thomas’s argument is that Count 3 is a lesser

included offense of Count 1 “because an ‘at-risk adult’ is always

‘another person.’” This argument may have superficial appeal, but

it inverts the Reyna-Abarca test. Evidence that the victim was a

person does not prove that the victim was at least seventy years old.

Hence, injury to an at-risk adult is not always established by the

same or fewer than all the facts necessary to prove injury to another

person.

¶ 35 Accordingly, we conclude criminally negligent injury to an at-

risk adult is not included in the offense of knowing or reckless

injury to a person. The trial court did not err, let alone plainly err,

by not merging Thomas’s convictions for third degree assault and

negligent bodily injury to an at-risk adult.

IV. Thomas’s Prosecutorial Misconduct Claim Fails

¶ 36 Thomas next contends that allowing the prosecutor’s

comments during rebuttal closing argument constituted plain error

because the comments assumed he was guilty of the charged

crimes, and, thus, undermined his presumption of innocence. We

15
 agree that the comments were improper but conclude that reversal

is not required because they did not rise to the level of plain error.

A. Relevant Facts

¶ 37 At trial, four witnesses testified to the events that transpired in

early March 2015.

¶ 38 The responding patrol officer interviewed the victim, S.F., and

Thomas. The officer testified that he noticed red marks around the

victim’s neck when he arrived on the scene. His photographs of her

injuries were admitted at trial. He also testified that Thomas had

cuts on his forehead.

¶ 39 Thomas, however, disputed the other witnesses’ testimony.

According to Thomas, after spending time with his son and taking a

nap, he woke up, noticed pry marks on his trailer door, and was

worried that something inside his trailer might be missing. He

pounded on his trailer’s cabinet doors and yelled before he

suddenly heard a knock at his door. Holding his dog in his arms,

he opened the door and saw S.F. and another unknown male. S.F.

immediately jumped on him, causing Thomas to drop his dog. S.F.

also scratched his face. The altercation moved to the yard outside

of Thomas’s trailer, where the victim was standing next to a parked

16
 car. Thomas admitted that it is possible the victim was bumped

during the altercation, but he did not remember this.

¶ 40 During rebuttal closing argument, the prosecutor implored the

jury to evaluate each witness’s credibility in this “he said, she said”

case. He stated:

The Court tells you to look at a person’s
motive. . . . You get to consider their
demeanor. You get to consider the manner in
which they testified. And you also get to
consider how this case might affect them. And
Mr. Thomas is facing potential criminal
sanctions.

Mr. Thomas has every reason in the world to
get on that stand and tell you that it didn’t
happen. He has every reason in the world to
deny a crime that he wants to avoid a
conviction on.

¶ 41 Thomas now contends that these comments undermined his

presumption of innocence because they assumed he was guilty.

Rather than attacking Thomas’s credibility based on record

evidence, Thomas argues that the prosecutor made an

“impermissible, generalized” attack based on his status as a

criminal defendant.

17
 B. Standard of Review and Applicable Law

¶ 42 The determination of whether a prosecutor’s statements in

closing argument constitute misconduct is within the trial court’s

discretion. See Domingo-Gomez v. People, 125 P.3d 1043, 1049

(Colo. 2005); People v. Strock, 252 P.3d 1148, 1152 (Colo. App.

2010). A trial court’s prosecutorial misconduct ruling “will not be

disturbed by an appellate court in the absence of a gross abuse of

discretion resulting in prejudice and a denial of justice.” People v.

Moody, 676 P.2d 691, 697 (Colo. 1984); see also Carrillo v. People,

974 P.2d 478, 485 (Colo. 1999) (equating “gross abuse of discretion”

with “abuse of discretion”).

¶ 43 When deciding a claim of prosecutorial misconduct, we engage

in a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010). First, we determine whether the prosecutor’s challenged

conduct was improper based on the totality of the circumstances,

and, second, we determine whether any improper conduct warrants

reversal under the proper standard of review. Id.; see also Domingo-

Gomez, 125 P.3d at 1048.

¶ 44 “Factors to consider when determining the propriety of

statements include the language used, the context in which the

18
 statements were made, and the strength of the evidence supporting

the conviction.” Domingo-Gomez, 125 P.3d at 1050; see also Harris

v. People, 888 P.2d 259, 266 (Colo. 1995) (“[T]he context in which

challenged prosecutorial remarks are made is significant, including

the nature of the alleged offenses and the asserted defenses, the

issues to be determined, the evidence in the case, and the point in

the proceedings at which the remarks were made.”).

¶ 45 “Where, as here, a defendant does not object at trial to the

now-challenged conduct, we will only reverse a conviction if the

conduct was improper and rises to the level of plain error.” People

v. Nardine, 2016 COA 85, ¶ 37. “To constitute plain error,

prosecutorial misconduct must be flagrant or glaringly or

tremendously improper, and it must so undermine the fundamental

fairness of the trial as to cast serious doubt on the reliability of the

judgment of conviction.” People v. Manyik, 2016 COA 42, ¶ 35

(citation omitted); see also Strock, 252 P.3d at 1153 (Whether

prosecutorial misconduct requires reversal depends on “the severity

and frequency of the misconduct, any curative measures taken by

the trial court to alleviate the misconduct, and the likelihood that

19
 the misconduct constituted a material factor leading to the

defendant’s conviction.”).

C. Application

¶ 46 Because Thomas’s attorney did not object to the prosecutor’s

comments, we review this contention for plain error. In doing so,

we must first determine whether the trial court erred when it did

not intervene and instruct the jury to disregard the prosecutor’s

argument.

¶ 47 A prosecutor is permitted to comment on the evidence

admitted at trial and the reasonable inferences that can be drawn

from it. See People v. Samson, 2012 COA 167, ¶ 31. Among other

things, “[t]he partiality of a witness is subject to exploration at trial,

and is ‘always relevant as discrediting the witness and affecting the

weight of his testimony.’” Davis v. Alaska, 415 U.S. 308, 316 (1974)

(quoting 3A J. Wigmore, Evidence § 940 at 775 (Chadbourn rev.

1970)). Here, because Thomas testified, the jury could properly

consider his credibility and his interest in the outcome of the case

and the prosecutor could properly argue that it should do so. We

reject Thomas’s contention that the prosecutor’s argument

20
 impermissibly undermined the presumption of innocence and

presumed he was guilty.

¶ 48 Accordingly, we conclude that the trial court did not err when

it did not intervene and instruct the jury to disregard the

prosecutor’s argument. Further, we conclude the prosecutor’s

argument did not undermine the fundamental fairness of the trial.

V. Thomas Was Properly Sentenced
Under the Habitual Criminal Statute

¶ 49 Thomas was convicted of third degree assault and negligent

bodily injury to an at-risk adult, each of which is a class 6 felony,

and three sentence enhancing habitual criminal counts.

¶ 50 At Thomas’s sentencing hearing, the court found that the

prosecution proved the following three prior felony convictions

beyond a reasonable doubt:

• a 1995 class 4 felony conviction in case number 95CR14

for theft;

• a January 2005 class 6 felony conviction in case number

05CR210 for possession of one gram or less of a schedule

II controlled substance on December 16, 2004, in

21
 violation of section 18-18-405(1), (2.3)(a)(I), C.R.S. 2004;

and

• a June 2005 class 4 felony conviction in case number

05CR1936 for possession of more than one gram of a

schedule II controlled substance on April 7, 2005, in

violation of section 18-18-405(1), C.R.S. 2005.

¶ 51 Thomas contends that, under recent amendments to

Colorado’s habitual criminal statutes, the trial court lacked

authority to sentence him as a habitual criminal. In particular, he

asserts that

• under section 18-1.3-801(2)(a)(I), C.R.S. 2019, his

January 2005 and June 2005 drug convictions would

have been level 4 drug felonies; and

• under section 18-1.3-801(2)(b), level 4 drug felonies

cannot serve as predicate felonies.

A. Sufficiency of the Evidence

¶ 52 Thomas acknowledges that he did not seek a judgment of

acquittal or a judgment notwithstanding the verdict in the trial

court, but now argues that the prosecution’s evidence was not

sufficient to sustain his habitual criminal convictions. Challenges

22
 to the sufficiency of the evidence may be raised for the first time on

appeal and are not subject to plain error review. See McCoy v.

People, 2019 CO 44, ¶ 27.

¶ 53 We review the sufficiency of evidence de novo. Strock, 252

P.3d at 1155. We must determine whether the relevant evidence,

when viewed most favorably to the prosecution, is substantial and

sufficient to prove that the defendant has been previously convicted

of the charged habitual criminal counts. Id.; see also People v.

Carrasco, 85 P.3d 580, 582-83 (Colo. App. 2003).

¶ 54 However, Thomas admits he previously pleaded guilty to a

class 6 felony for possession of a controlled substance and, in a

separate case, pleaded guilty to class 4 felony possession of a

controlled substance. In addition, the record contains ample proof

that he also had a prior conviction for a class 4 felony theft.

Therefore, we conclude that there was sufficient proof of Thomas’s

three prior convictions.

B. Application of the Habitual Criminal Sentencing Statute

¶ 55 Although Thomas frames the challenge to his habitual

criminal sentence in terms of the sufficiency of the evidence, a

closer look shows that he is also asserting that the trial court erred

23
 when it applied the habitual criminal sentencing statute. Thomas

did not preserve that issue by objection in the trial court.

1. Standard of Review

¶ 56 When determining the proper application of a statute, our task

is to effectuate the legislature’s intent. McCoy, ¶ 37. We give the

statute’s words and phrases their plain and ordinary meanings in

accordance with common usage, apply rules of grammar, and

discern their particular meaning in the context of the statute as a

whole. We must ensure that our interpretation gives consistent,

harmonious, and sensible effect to all parts of the statute and avoid

constructions that would render any words or phrases meaningless

or lead to illogical or absurd results. Id. at ¶¶ 37-38.

¶ 57 The application of a statute is a question of law that we review

de novo. Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189

(Colo. 2010). However, because Thomas raises this issue for the

first time on appeal, if we conclude the court applied the statute

erroneously, we apply the plain error standard and reverse only if

the error was obvious and “so undermined the fundamental

fairness of the trial itself . . . as to cast serious doubt on the

reliability of the judgment of conviction.” Hagos v. People, 2012 CO

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 63, ¶ 14 (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005));

see also Maestas v. People, 2019 CO 45, ¶¶ 18-32 (Samour, J.,

concurring in the judgment only) (assertions of unpreserved

statutory construction should be reviewed under the de novo

standard of review and, if the trial court erred, plain error review

should be applied to determine whether the error requires reversal);

People v. Kadell, 2017 COA 124, ¶ 46 (J. Jones, J., concurring in

part and dissenting in part) (de novo review can be applied when

determining whether there was an error, and plain error review can

be applied when determining whether an error requires reversal).

2. Thomas’s January and June 2005 Convictions Are Felony
Convictions For Purposes of Section 18-1.3-801(3)

¶ 58 Section 18-1.3-801(2)(a)(I)(A) provides that anyone convicted of

any felony (a triggering offense) who has three previous felony

convictions (predicate offenses) arising from separate and distinct

criminal episodes must be sentenced to four times the maximum of

the presumptive range.

¶ 59 Thomas does not dispute that the convictions for third degree

assault and negligent injury to an at-risk adult in this case are

sufficient to trigger habitual criminal sentencing, but contends that

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 he did not have three predicate felonies. He argues that his

January and June 2005 drug convictions do not qualify as prior

felonies because, under section 18-1.3-801(3), “[n]o drug law

conviction shall be counted as a prior felony conviction under this

section unless such prior offense would be a felony if committed in

this state at the time of the commission of the new offense.” 2 We

are not persuaded.

¶ 60 Article XVIII, section 4, of the Colorado Constitution states:

“The term felony, wherever it may occur in this constitution, or the

laws of the state, shall be construed to mean any criminal offense

punishable by death or imprisonment in the penitentiary, and none

other.” In 2015, when Thomas committed the assault and negligent

bodily injury crimes for which he was sentenced in this case,

section 18-1.3-401.5(1), C.R.S. 2019 (enacted in 2013), stated: “For

purposes of this section, ‘felony’ means any felony or drug felony

defined in the state statutes.” In addition, in 2015, Thomas’s 2005

2 In Part V.B.4, we address Thomas’s assertions regarding
retrospective application of statutes. Here, we note that section 18-
1.3-801(3) was enacted on June 7, 2002, and, thus, predated
Thomas’s January 2005 conviction and his 2015 commission of the
offenses for which the court sentenced him. See Ch. 318, sec. 2,
§ 18-1.3-801(3), 2002 Colo. Sess. Laws 1428.

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 drug convictions would have been level 4 drug felonies punishable

by a maximum of one year in prison. See § 18-18-403.5(2)(a),

C.R.S. 2019. Accordingly, we conclude that at the time of

sentencing, Thomas’s January and June 2005 convictions were

prior felony convictions for purposes of sections 18-1.3-801(2)(a)(I)

and -801(3). Colo. Const. art. XVIII, § 4; § 18-1.3-401.5(1).

3. Thomas Has Three Previous Felony Convictions For Purposes
of Section 18-1.3-801(2)(a)(I)

¶ 61 Thomas argues that his “convictions for simple possession

would not have been ‘felonies’ but rather level 4 ‘drug felonies.’”

According to Thomas, section 18-1.3-801(2)(b)3 of “the habitual

sentencing statute precludes counting level 4 drug felonies as

3 Once again, in Part V.B.4, we address Thomas’s assertions
regarding retrospective application of statutes. Here, we note that
section 18-1.3-801(2)(a) was first enacted as section 18-1.3-801(2)
in June 2002 and replaced section 16-13-101(2) as part of the
relocation of Title 16 to Title 18. See Ch. 318, sec. 2, 2002 Colo.
Sess. Laws 1426-28 (effective Oct. 1, 2002). Since then, the statute
has changed several times, including in 2011 when it was divided
into subsections (2)(a) and (b). Subsection (2)(b) added new
language excluding class 6 felony drug possession convictions as
qualifying, triggering offenses for habitual criminal sentencing. See
Ch. 57, sec. 1, § 18-1.3-801(2)(b), 2011 Colo. Sess. Laws 151-52.
And in 2013, that subsection was amended to exclude level 4 drug
felonies as qualifying, triggering offenses. See Ch. 333, sec. 36,
§ 18-1.3-801(2)(b), 2013 Colo. Sess. Laws 1927-28.

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 predicate offenses when the defendant possessed a small quantity

of drugs.” Again, we are not persuaded.

¶ 62 We have already concluded that level 4 drug felonies

constitute felonies for purposes of section 18-1.3-801(3).

¶ 63 The meaning of subsections 801(2)(a)(I) and 801(2)(a)(I)(A) is

plain. They state that, except as provided in paragraphs (2)(b) and

(5) of section 18-1.3-801,

every person convicted in this state of any
felony, who has been three times previously
convicted, upon charges separately brought
and tried, and arising out of separate and
distinct criminal episodes, either in this state
or elsewhere, of a felony or, under the laws of
any other state, the United States, or any
territory subject to the jurisdiction of the
United States, of a crime which, if committed
within this state, would be a felony, shall be
adjudged an habitual criminal and shall be
punished [as stated in subsections
801(2)(a)(I)(A) and (B)].

¶ 64 The referenced paragraph (b) [subsection 801(2)(b)] states that

subsection 801(2)(a)(I)

shall not apply to . . . a conviction for a level 4
drug felony for attempt or conspiracy to
commit unlawful possession of a controlled
substance . . . if the amount of the . . .
controlled substance possessed is not more
than four grams or not more than two grams of
methamphetamine, heroin, cathinones, or

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 ketamine or not more than four milligrams of
flunitrazepam, even if the person has been
previously convicted of three or more
qualifying felony convictions.

¶ 65 Giving the words of these provisions their plain and ordinary

meanings and reading them in context, we conclude that a level 4

drug felony cannot be a triggering offense for habitual criminal

sentencing under section 18-1.3-801(2)(a)(I). This section is specific

to sentencing. It plainly tells courts that are sentencing defendants

for level 4 drug felonies that they may not impose habitual criminal

sentences in such cases “even if the person has been previously

convicted of three or more [felony convictions arising out of separate

and distinct criminal episodes].” § 18-1.3-801(2)(b). Thus,

subsection 801(2)(b) eliminates level 4 drug felonies as triggering

offenses for habitual criminal sentencing, but it does not change the

nature of qualifying felony convictions as defined in subsection

801(2)(a). Therefore, we conclude that subsection 801(2)(b) does

not prohibit courts from considering level 4 drug felony convictions

as predicate felony convictions.

¶ 66 In this case, Thomas’s triggering felony convictions were for

third degree assault and negligent injury of an at-risk adult, not for

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 drug possession. Consequently, the trial court did not err when it

concluded that Thomas had three previous felony convictions and

that those convictions were predicate felony convictions.

4. Wells-Yates v. People

¶ 67 As supplemental authority, Thomas cited Wells-Yates v.

People, 2019 CO 90M. We conclude that this decision does not

require a different result here.

¶ 68 In Wells-Yates, the supreme court addressed (1) abbreviated

proportionality reviews of habitual criminal sentences; (2)

determinations of the gravity or seriousness of triggering and

predicate offenses; (3) the gravity and seriousness of narcotic

offenses generally; and (4) the gravity and seriousness of narcotic

offenses of possession and possession with intent to sell, distribute,

dispense, or manufacture. Wells-Yates, ¶ 76. None of these issues

are present in this case.

¶ 69 Thomas did not request a proportionality review in the trial

court, nor has he done so in his briefs on appeal. Instead, in a

citation of supplemental authority, he has referred us to paragraphs

42, 43, and 59 of the Wells-Yates decision. In the referenced

paragraphs, the supreme court focused on abbreviated

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 proportionality reviews, extraordinary risk crimes, and

determinations about the gravity and seriousness of crimes, none of

which are at issue here.

¶ 70 In a section captioned “Should Relevant Statutory

Amendments Enacted After the Dates of the Triggering and

Predicate Offenses Be Considered During an Abbreviated

Proportionality Review?[,]” the court concluded that when

determining the relative gravity and seriousness of the offense

during an abbreviated proportionality review, “the trial court should

consider relevant legislative amendments enacted after the date of

the offense, even if the amendments do not apply retroactively.” Id.

at ¶ 45. The court also concluded that section of the decision by

stating that “legislative enactments that take effect after the date of

the offense and have no retroactive application may nevertheless be

relevant to evaluate the gravity or seriousness of the offense.” Id. at

¶ 52. Our analysis here has addressed the retroactive applications

of section 18-1.3-801(2) and (3) and section 18-1.3-401.5(1) to

Thomas’s 2005 drug offenses and the determination of a sentence

for his 2015 offenses.

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¶ 71 In the referenced paragraphs, we find only one sentence that

pertains to the statutes and issues Thomas has presented on

appeal. When determining whether an abbreviated proportionality

review should include consideration of statutory amendments

enacted after triggering and predicate offenses, the court said:

[S]ince Wells-Yates’s two predicate offenses of
possession of 2 grams or less of
methamphetamine, the legislature has
reclassified that crime from a class 4 felony
that is eligible to be both a triggering offense
and a predicate offense for habitual criminal
purposes to a level 4 drug felony that carries
less severe penalties and is not so eligible.”

Wells-Yates, ¶ 43 (emphases added).

¶ 72 The court made this statement in the context of whether

relevant statutory amendments enacted after the dates of the

triggering and predicate offenses should be considered during an

abbreviated proportionality review. The statement that level 4

felony offenses are “not so eligible” is brief, ambiguous, and

conclusory. Importantly, the decision does not include any analysis

of the wording of section 18-1.3-801(2)(b), and the statement is not

necessary to the ultimate holding in the case. See Main Electric,

Ltd. v. Printz Servs. Corp., 980 P.2d 522, 526 (Colo. 1999)

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 (conclusory statement that did not analyze contract terms was

dictum); United States v. Jesse, 744 P.2d 491, 502-03 (Colo. 1987)

(summary of holdings at the end of a decision controlled and

ambiguous statement in a footnote did not); cf. People v. Morehead,

2019 CO 48, ¶ 10 (rulings logically necessary to its holding become

the law of the case). Accordingly, it was dictum and does not

control our analysis.

VI. Colorado’s Habitual Criminal Sentencing Statutes Are
Constitutional

¶ 73 Finally, Thomas argues, for the first time on appeal, that

Colorado’s habitual criminal statutes, sections 18-1.3-801 to -803,

C.R.S. 2019, are unconstitutional because they allow a judge,

rather than a jury, to make necessary findings about whether a

defendant was previously convicted. Thomas asserts that this

procedure deprived him of his Sixth Amendment right to trial by

jury.

¶ 74 Thomas recognizes that his argument has been rejected by

numerous appellate decisions. See, e.g., People v. Huber, 139 P.3d

628, 631 (Colo. 2006); People v. Davis, 2017 COA 40M, ¶¶ 35-38.

He asserts that these cases were wrongly decided and should not be

33
 followed. We disagree and see no reason to depart from these

decisions.

VII. Conclusion

¶ 75 The judgment and sentence are affirmed.

JUDGE TAUBMAN and JUDGE GROVE concur.

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