People v. Lacallo

JUDGE ROMAN

concurring in part and dissenting in part.

[ 55 In my view, the nature of sufficiency of the evidence review does not lend itself to plain error analysis. Accordingly, even though the sufficiency of the evidence contention is unpreserved, I would reach the merits and conclude that insufficient evidence exists to sustain the conviction for engaging in a riot under 18-9-104(1), C.R.98.2018.

I 56 Typically, an appellate court begins its analysis by reviewing a trial court's ruling to determine if any error occurred. Seq, eg., People v. Jones, 2013 CO 59, ¶11, 311 P.3d 274 (a trial court's evidentiary rulings are reviewed for an abuse of discretion); Dempsey v. People, 117 P.3d 800, 807 (Colo.2005) (a trial court's rulings on questions of law are reviewed de novo). This is true whether a contention is preserved, see Krutsinger v. People, 219 P.3d 1054, 1063 (Colo.2009) (trial court's evidentiary error was harmless), or unpreserved, see People v. Miller, 118 P.3d 743, 750 (Colo.2005) (trial court's instructional error reviewed for plain error).

1 57 When there is an error relating to the sufficiency of the evidence, by definition, there is insufficient evidence to sustain the conviction. See Dempsey, 117 P.8d at 810 (conviction reversed because evidence was insufficient to justify the defendant's convietion for obstructing a lawful assembly). Under that cireumstance, the conviction cannot stand even if the contention is unpreserved. If, on the other hand, the evidence is sufficient and there was no error, the analysis ends. See id. (evidence sufficient to sustain conviction for obstructing a peace officer). This is the method of review Colorado courts have utilized to date, and I see no reason to depart from that method.

158 Based on that resolution, I would not address Parts III and IV of the majority opinion. I concur, however, with Part V of the majority's opinion that the trial court should calculate defendant's presentence confinement credit based solely on the time he has been confined in Jefferson County for the charges in this case.

I. Standard of Review

T 59 Our supreme court "reviews questions relating to sufficiency of the evidence de novo." People v. Roggow, 2018 CO 70, 118, 318 P.3d 446. The prosecution has the burden of establishing " 'sufficient evidence to establish guilt-no more, no less"" Dempsey, 117 P.3d at 807 (quoting People v. Benmett, 183 Colo. 125, 180, 515 P.2d 466, 469 (1978).

1 60 Divisions of this court have followed supreme court precedent even when the issue is raised for the first time on appeal-until now. See People v. Randell, 2012 COA *454108, €30, 297 P.3d 989 ("A defendant may challenge the sufficiency of the evidence on appeal without moving for a judgment of acquittal in the trial court. Accordingly, we reject the People's contention that the insufficient evidence claims defendant failed to raise in the trial court should only be reviewed for plain error." (citation omitted)).

161 In People v. McBride, 228 P.3d 216, 226 (Colo.App.2009), another division explained that the sufficiency of evidence "standard is so high, and the consequences to the rare defendant able to satisfy it so severe, that we apply it even where (as here) a defendant failed to preserve the challenge by raising it in the trial court." Accord People v. Garcia, 2012 COA 79, 1 35, 296 P.3d 285; People v. Duncan, 109 P.3d 1044, 1045 (Colo.App.2004).

T 62 Other states also address insufficiency of the evidence claims for the first time on appeal without applying plain error review. See State v. Thomas, 62 Conn.App. 356, 772 A.2d 611, 615 (2001) (unpreserved sufficiency of 'the evidence claims are not reviewable under the plain error doctrine because they involve a fundamental constitutional right); Garza v. State, 284 Ga. 696, 670 S.E.2d 78, 79 n. 7 (2008) (citing Jackson v. Virginia, 448 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and noting the importance under due process that sufficient evidence exists as to every element of the crime of which a defendant is convicted) (superseded on other grounds by statute); State v. Wright, 154 Idaho 157, 295 P.3d 1016, 1017 n. 1 (App. 2013); State v. Foster, 298 Kan. 348, 312 P.3d 364, 368 (2013); Commonwealth v. Joyner, 467 Mass. 176, 4 N.E.3d 282, 288 (2014) (reviewing unpreserved insufficiency claim "because findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice" (quoting Commonwealth v. Powell, 459 Mass. 572, 946 N.E.2d 114, 122 (2011))); State v. Criswell, 370 Mont. 511, 305 P.3d 760, 768 (2013); State v. Stein, 127 NM. 362, 981 P.2d 295, 297 (App.1999) (reviewing unpreserved insufficiency claim because "Injo error is more fundamental than the convietion of an innocent person, and no right of a party is more fundamental than the right not to be convicted when innocent"); State v. Martinez, -- N.C.App. --, 749 S.E.2d 512, 514 (2013) (invoking authority under an appellate rule that allows for review of un-preserved issues in part because "it is difficult to contemplate a more 'manifest injustice' to a convicted defendant than that which would result from sustaining a conviction that lacked adequate evidentiary support" (quoting State v. Gayton-Barbosa, 197 N.C.App. 129, 676 S.E.2d 586, 590 (2009))); Musgrove v. State, 422 S.W.3d 13, 15 n. 1 (Tex.App.2013); Garay v. State, 165 P.3d 99, 101 n.1 (Wyo.2007) (abandoning the plain error rule where sufficiency of the evidence is the issue).1

1 63 I too see no reason to apply the plain error rule here. because "a defendant is always prejudiced if he is found guilty and the evidence is not sufficient to establish his guilt." Garay, 165 P.3d at 101 n. 1; see also United States v. Melot, 732 F.3d 1234, 1240 (10th Cir.2013) ("[A] conviction in the absence of sufficient evidence of guilt is plainly an error, clearly prejudiced the defendant, and almost always creates manifest injustice." (quoting United States v. Goode, 488 F.3d 676, 681 n. 1 (10th Cir.2007))).

*455T 64 It is "an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Jackson, 448 U.S. at 816, 99 S.Ct. 2781. For this reason, a conviction in the absence of sufficient evidence always prejudices a defendant. Melot, 732 FBd at 1240. Thus, it is academic whether a specific sufficiency objection is made, because a conviction based on legally insufficient evidence always constitutes a denial of due process, and therefore must be reversed. And, as a result, due process should compel appellate courts to fully evaluate a defendant's claims, even when unpre-served. See also Sanchez v. People, 2014 CO 29, 119, 825 P.3d 553 ("[The entry of a Judgment of conviction for a crime not supported by a unanimous verdict beyond a reasonable doubt rises to the level of structural error, requiring reversal regardless of a sufficiently specific objection.").

1 65 The majority relies on the application of plain error review in the federal appellate courts as a basis for adopting plain error review in Colorado. However, the federal cireuits often conclude that no plain error exists based on a fourth prong of plain error analysis, that the "[clourt may exercise discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Scull, 821 F.3d 1270, 1277 (10th Cir.2008) (quoting United States v. Hughes, 191 F.3d 1817, 1822 (10th Cir.1999)); see United States v. Clemens, 788 F.3d 1, 18-14 (1st Cir.2018) (reviewing only for "clear and gross injustice"); Umited States v. Fries, 725 F.3d 1286, 1291 n. 5 (11th Cir.2018) (explaining that the parties requested plain error review but the predominant rule in the circuit is "better stated as requiring that we uphold a conviction unless to do so would work. a 'manifest miscarriage of justice'"); United States v. Brown, 727 F.3d 829, 885 (5th Cir.2013) (reviewing unpreserved suffi-ciency of the evidence issue only for "manifest miscarriage of justice"); United States v. Natale, 719 F.3d 719, 748 (7th Cir.2018) (same).

"I 66 But, as the majority notes, the Colorado Supreme Court has not clearly acknowledged a fourth prong of plain error analysis in Colorado. See People v. Greer, 262 P.3d 920, 982-83 (Colo.App.2011) (J. Jones, J., specially concurring) (noting that the Colorado Supreme Court has not adopted the fourth prong of the federal plain error test, which allows appellate courts the discretion to remedy any error where a "miscarriage of Justice" would result). And a conviction absent sufficient evidence is a manifest injustice. See Fries, 725 F.3d at 1294-95 (the failure to properly object at trial "may affect our standard of review, [but] permitting a conviction to stand where not a whit of evidence supports an essential element of the crime charged would do great damage to the considerations of due process that serve as a fundamental bulwark to our criminal justice system"); State v Gayton-Barbosa, 197 N.C.App. 129, 676 S.E.2d 586, 590 (2009) (questioning whether there is more "manifest injustice" than sustaining a conviction that lacks evidentiary support).

T67 Moreover, the majority does not address whether an error even occurred because it first concludes that any error was not obvious. See People v. Vigil, 251 P.3d 442, 447 (Colo.App.2010). Review in that manner seems to assume without deciding that an error occurred because review under the plain error standard of review in Colorado starts with the determination whether there was an error. See Miller, 118 P.3d at 750 ("Plain error addresses error that is both 'obvious and substantial'") (emphasis added); see also Robles v. People, 2013 CO 24, 19, 302 P.3d 229 (concluding first that trial court did not err, and thus, necessarily, that it did not commit plain or structural error).

T 68 In addition, although the case before us involves a legal challenge to a statutory element,2 I believe that plain error review is *456still inappropriate and can lead to an unfair result, as it does in this case. The error we are reviewing is whether there was a convietion in the absence of sufficient evidence. United States v. Delgado-Uribe, 868 F.3d 1077, 1081 (10th Cir.2004) (an appellate court simply determines whether the evidence would establish each element of the crime). Thus, as here, when a defendant challenges the sufficiency of the evidence to a statutory element, the underlying question becomes whether defendant's conduct constitutes a crime. If defendant's conduct was not a crime, the conviction must be reversed. See Dempsey, 117 P.8d at 810. In cases such as this one, it is the role of the appellate court to engage in an independent analysis of the legal issue. And, as will be seen when I begin with de novo review of defendant's contention, I conclude that that his conduct in this case is not a crime under section 18-9-104(1) and therefore his conviction should not stand. But because the majority stops at obviousness and sidesteps the legal issue without ever reaching the merits, it affirms defendant's conviction despite, in my view, defendant having committed no crime.

169 Nor do the decisions from other divisions of this court that pre-date Roggow and Dempsey change my view. In People v. Harris, 688 P.2d 1095 (Colo.App.1981), in which the majority "joins," the division did not determine a legal question.3 Moreover, although the Harris division stated, "to allege insufficiency of evidence as to an indispensable element of a erime is to assert plain error," it applied a de novo analysis by "reading the record as a whole" and determining that "sufficient competent evidence" existed to sustain the convictions. Id.; cf. Roggow, 113 (sufficiency of the evidence claims are reviewed de novo, determining "whether the relevant evidence, when viewed as a whole in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charges beyond a reasonable doubt"). Although the Harris division did not address how plain error would have been applied if an error had been found in that case, the problem that arises by the majority's holding today was alleviated by the Harris division's full analysis of the evidence.

I also have concerns regarding the practical effect of adopting plain error review for sufficiency of the evidence claims. This sea change adopted by the majority will af-feet strategic decision-making by trial counsel. Rather than relying on the expertise of the appellate divisions and courts to address novel issues of law, trial counsel will be forced to research and make legal objections at trial instead of focusing on the presentation of evidence4 Likewise, for strategic reasons, defense counsel may not wish to give the prosecutor an opportunity to present additional evidence if the prosecutor is proceeding under an incorrect view of the legal requirements to establish an element of the crime. And because the burden of proof is on the prosecution, a defendant should not be required to do so. Yet compelling objection in the trial court, as the majority now does, may afford the prosecution a reprieve. See People v. Walters, 641 P.2d 292, 294 (Colo.App.1981) (the trial court has discretion to allow either party to reopen the case and introduce evidence).

{71 Finally, plain error review in this context does not further judicial economy; it impedes it. As a result of today's decision, defendants can be expected to raise an ineffective assistance of counsel claim virtually every time a lack of sufficient evidence claim fails under plain error analysis. This opinion will almost certainly create a new line of *457Crim. P. 35(c) ineffective assistance of counsel claims. Seq, eg., Hagos v. People, 2012 CO 63, ¶1, 288 P.3d 116 (ineffective assistance of counsel appeal based on counsel's failure to object to an erroneous instruction that did not constitute plain error on direct appeal).

T72 But more than anything, I fail to see how plain error review is fair to a defendant who has been convicted despite insufficient evidence in the record to support the convietion.

T 783 Turning now to the merits of the case, I would reverse the conviction.

IIL Engaging in a Riot

T74 Defendant contends the evidence is insufficient to sustain his conviction for engaging in a riot under section 18-9-104(1), because the incident inside the jail was not a "public disturbance." Under the cireum-stances here, and because Colorado has a separate statute addressing riots by persons confined in detention facilities, and the statutory requirements under section 18-9-104 were not met, I agree.5

T 75 Analysis of defendant's contention requires interpretation of section 18-9-104. Statutory interpretation is a question of law that appellate courts review de novo. Bostelman v. People, 162 P.3d 686, 689 (Colo.2007). When interpreting a statute, an appellate court must first determine and give effect to the legislature's intent by examining the plain and ordinary meaning of the statutory language. People v. Madden, 111 P.3d 452, 457 (Colo.2005). Statutory terms are read in context and construed according to common usage. § 2-4-101, C.R.8.2018.

T 76 When statutory language is clear and unambiguous, the provision is applied as written and no further statutory analysis is necessary. Bostelman, 162 P.3d at 690; People v. Armstrong, 720 P.2d 165, 167 (Colo.1986). If the statutory language is ambignuous, however, we use other tools of construction, such as, "legislative history, the consequences of a given construction, and the end to be achieved by the statute." People v. Disher, 224 P.8d 254, 256 (Colo.2010); see § 2-4-203, C.R.8.2013.

1 77 Section 18-9-104(1) provides, "[a] person commits an offense if he or she engages in a riot." A "riot" is defined as "a public disturbance involving an assemblage of three or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs the performance of any governmental function." § 18-9-10102), C.R.8.2018.

178 Defendant asserts that the incident was not a "public disturbance" because it took place in a part of the jail not open to the public. The term "public disturbance" is not defined by the statute, but our supreme court has acknowledged that "public" is an element of the general riot statute. See People v. Bridges, 620 P.2d 1, 4 (Colo.1980) (concluding that the defendant's conduct was public, violent, involved the requisite number of people, and created a grave danger of damage and injury to property and persons).

179 Because it is not clear from the statute whether the legislature intended that a public disturbance include incidents occurring inside a jail, the statute is ambiguous. See Disher, 224 P.Bd at 256. Therefore, I look beyond the statutory plain language to assist my interpretation. See id.

1 80 Here, the legislature enacted a separate statute specifically penalizing active participation in a riot by a person confined in any detention facility. § 18-8-211, C.R.S. 2018. And it did not specify detention facilities in the general riot statute, section 18-9-104. Therefore, in most instances, incidents inside a jail will not be public disturbances. See United States v. Wright, 864 F.Supp. 1018, 1014-15 (D.Colo.1994) (because the Colorado legislature enacted a statute applicable to conduct at buildings owned by the federal government, a Veteran's Administration hospital is not included in the term "public place" under the general disorderly conduct statute, section 18-9-110, C.R.S., 2018); cf *458State v. Riddle, 45 N.C.App. 84, 262 S.E.2d 322, 324 (1980) (statutory definition for "public disturbance" specified that "places covered by this definition shall include ... prisons").

81 The People assert that other jurisdictions have concluded that a jail is a public place for purposes of general riot statutes _ and that the actual location of the disturbance is not determinative. See United < States v. Bridgeman, 528 F.2d 1099, 1144 (D.C.Cir.1975); Commonwealth v. Zwierzelewski, 177. Pa.Super. 141, 110 A.2d 757, 760 (1955). However, those jurisdictions did not have statutes in place specifically addressing riots by persons confined in detention facilities. See Bridgeman, 528 F.2d at 1118 (D.C. general riot statute was designed to be an "all-encompassing statute" that includes incidents in jails); Zwierselewski, 110 A.2d at 760 (general riot statute applicable to prison riot; however, legislature subsequently enacted a statute to penalize riots in a penal or correctional institution); see also People 2. Dixon, 91 Ill.2d 346, 63 Ill.Dec. 442, 488 N.E.2d 180, 185 (1982) (prison fight punishable under mob-action statute because statute did not require that acts occur in public view, and prior riot law did not require that a disorder occur in a public place).

{82 In Colorado, however, the General Assembly has specified that riots in public places are covered by the general riot statute, see Bridges, 620 P.2d at 5 (in evaluating overbreadth challenge, supreme court noted that the defendant's conduct-a fight outside a party resulting in broken windows, bullet holes in vehicles and a nearby house, and injuries to participants-was "precisely the type of conduct the riot statute was intended to proscribe"), and riots by persons confined in detention facilities are covered by the riots in detention facilities statute. See § 18-8-211.

{83 Turning to the facts of this case, I conclude that the incident was not a public disturbance as intended by the General Assembly in the general riot statute.

184 The People highlight the following record evidence in support of its assertion that the incident was a public disturbance because it affected the public: the entire jail had to be locked down, inmates had to be decontaminated due to gas exposure, the facility's fire sprinkler system was compromised, there was concern that the disturbance would spread to other parts of the facility, deputies were called to work outside their regular hours, visitors were evacuated, the facility could not accept new transfers during the incident, there was concern that the water system outside the facility could be affected, and the incident was broadcasted to local news agencies. See Bridgeman, 528 F.2d at 1116 (adopting a test for the public disturbance requirement of a general riot statute that evaluates whether a disturbance affects the public).

1 85 However, these facts seem to limit the incident and its impact to the boundaries of the detention facility. See § 18-8-211(4) (defining "detention facility" as "any building, structure, enclosure, vehicle, institution, or place, whether permanent or temporary, fixed or mobile, where persons are or may be lawfully held in custody or confinement").

{86 To be sure, I can envision a situation in which both the general riot statute and the detention facility riot statute would apply to a defendant's conduct. However, the incident here falls short of the conduct proscribed by the legislature in the general riot statute. Cf. Zwierselewski, 110 A.2d at 759-60 (local firefighters called to extinguish numerous fires, roads surrounding the institution blocked, entire institution taken out of the hands of the officials, and public feared mass prison break). Accordingly, I would reverse defendant's conviction under the general riot statute and remand the case to the trial court for a judgment of acquittal on that count.

. In its entirety, the Wyoming Supreme Court stated in footnote one:

Historically, this Court has paid lip service to the concept of giving only the plain error rule's limited review to sufficiency of the evidence issues, but in practice we have performed our usual sufficiency of the evidence analysis whether or not a motion for judgment of acquittal was made in the trial court. In truth, the plain error standard does not lend itself to application where the issue is sufficiency of the evidence. One, there is no "incident" that is alleged to be error, and no objection can be made to the failure to have presented evidence on one or more of the elements of the crime. Two, the "clear and unequivocal rule of law" element of plain error analysis does not "fit" a sufficiency of the evidence analysis. Third, the proposition that a defendant's guilt must be proved with competent evidence bearing upon each of the crime's elements always involves a fundamental right. Finally, a defendant is always prejudiced if he is found guilty and the evidence is not sufficient to establish his guilt. For these reasons, we hereby abandon any adherence to the plain error rule where sufficiency of the evidence is the issue.

. I note that even the majority appears to recognize a difference between cases involving a legal challenge to a statutory element and those challenging the quantity and quality of evidence. This case should not be read therefore as standing for the proposition that all unpreserved suffi*456ciency of evidence claims are subject to plain error analysis. See People v. Garcia, 2012 COA 79, ¶ 42, 296 P.3d 285 (reviewing an unpreserved sufficiency of the evidence challenge involving the quantity of evidence).

. In People v. Rice, 40 Colo.App. 357, 361, 579 P.2d 647, 650 (1978), the division essentially treated the defendant's lack of a specific objection as a waiver and refused to address his contention on appeal. Id. ("Since we find no plain error with respect to these convictions, we do not address the issue of sufficiency of the evidence relative to them.").

. As will be seen, infra, this is no small matter for overtaxed trial public defenders. After conducting my own research in this case, I agree with defendant that only a handful of other jurisdictions, and no cases from Colorado, have interpreted similar statutory language.

. The jury also convicted defendant of participating in a riot by a person confined in a detention facility. § 18-8-211, C.R.S.2013. Defendant does not contest the sufficiency of the evidence for that conviction.