People v. Mortenson

541 P.3d 639

2023 COA 92

2023 COA 92

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Cedar L. MORTENSON, Defendant-Appellant.

Court of Appeals No. 21CA1364

Colorado Court of Appeals, Div. I.

Announced October 5, 2023

Arapahoe County District Court No. 19CR1181, Honorable Shay K. Whitaker, Judge

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE JOHNSON

¶ 1 Defendant, Cedar L. Mortenson (Mortenson), appeals the judgment of conviction entered on a jury verdict finding her guilty of aggravated robbery. Because the prosecution did not present evidence of a taking under the robbery statute—a taking that must be from the person or presence of another by force—we vacate her aggravated robbery conviction and remand with directions. In doing so, we confront an issue that has percolated for many years in Colorado case law with mixed results: When we vacate a conviction on a greater offense for insufficient evidence, but the evidence is sufficient to support a conviction for a lesser included offense, should we remand the case to the district court with instructions to enter a judgment of conviction on the lesser included offense (in this case, attempted aggravated robbery)?

[1] ¶ 2 Our supreme court has never mandated appellate courts to enter a judgment of conviction on a lesser included offense that is necessarily implied in a jury verdict vacated due to insufficient evidence. See Halaseh v. People, 2020 CO 35M, ¶ 9, 463 P.3d 249. Instead, the appellate court may exercise its discretion to determine whether entry of conviction on the lesser included offense would be appropriate under the given circumstances. Id. Based on the facts of this case, in which the jury was not instructed on the lesser offense and the record supports an "all-or-nothing" strategy chosen by both the prosecution and defense, we exercise our discretion and decline to direct the district court to enter judgment of conviction on the lesser included offense on remand. Because Mortenson’s aggravated robbery conviction was her most serious offense, the court may reconsider the sentences for her remaining convictions.

I. Background

¶ 3 At trial, the prosecution’s evidence would have allowed the jury to find the following facts. Mortenson placed about ninety dollars’ worth of Target items in her purse and proceeded to the store exit without paying for them. As she stepped through the first of two sets of sliding glass doors, she was confronted by the victim, Keith Williams (Williams), an undercover Target "asset protection specialist." When Williams stepped toward her, Mortenson backed into a corner of the exit vestibule and reached inside her shirt. In the same moment that Mortenson pulled out a gun, Williams closed the gap between them. He quickly wrestled Mortenson to the ground, face down, and a uniformed security guard arrived to assist. After a two-minute struggle, the two Target employees were able to disarm and handcuff Mortenson in the vestibule. They recovered the Target items from her purse, and the police were called.

¶ 4 Mortenson was tried on charges of (1) aggravated robbery of merchandise from the person or presence of Williams with a deadly weapon, see § 18-4-302(1)(d), C.R.S. 2023; (2) felony menacing; (3) false reporting to authorities; and (4) theft from Target. The jury found Mortenson guilty as charged.

¶ 5 Mortenson did not testify at trial. Her two theories of defense were that she pulled a gun to defend herself against an unidentified person blocking her path, and that the prosecution had not proved a taking, by the use of force. On appeal, Mortenson challenges only her aggravated robbery conviction. She contends that (1) there was insufficient evidence to support that conviction because there was ho evidence showing that a robbery taking occurred, and (2) prosecutorial misconduct in closing argument mandates reversal. Because we agree with her first contention, we do not need to address the second.

II. Insufficient Evidence of Aggravated Robbery

A. Standard of Review and Applicable Law

[2–4] ¶ 6 In evaluating an insufficient evidence claim, we review the evidence de novo. Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). We view the evidence as a whole and in the light most favorable to the prosecution to determine whether "a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. We do not serve as the thirteenth juror and do not determine what specific weight should be given to one piece of evidence over another. People v. Gonzales, 666 P.2d 123, 128 (Colo. 1983). Rather, we consider whether the prosecution put forward sufficient evidence to meet its burden of proof with respect to each element of the crime charged. Martinez v. People, 2015 CO 16, ¶ 22, 344 P.3d 862; see People v. Espinoza, 195 P.3d 1122, 1127–28 (Colo. App. 2008) (this burden is required by the Due Process Clauses of the Colorado and United States Constitutions).

[5, 6] ¶ 7 To prove aggravated robbery, the prosecution must prove every element of robbery, plus additional elements. See People v. Borghesi, 66 P.3d 93, 97 (Colo. 2003); People v. Liebler, 2022 COA 21, ¶ 17, 510 P.3d 548. A person commits robbery if she knowingly takes 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. 2023. 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. People v. Derrera, 667 P.2d 1363, 1368 (Colo. 1983).

[7–9] ¶ 8 For property to be in a victim’s "presence," the victim must be exercising, or have the right to exercise, control over the item taken. People v. Ridenour, 878 P.2d 23, 27 (Colo. App. 1994). The property must also "be within the victim’s reach, inspection or observation so that the victim would be able to retain control over the property but for the force or threat of force directed by the perpetrator against the victim." Borghesi, 66 P.3d at 103 (emphasis added). A loss prevention officer has the right to exercise control over a store’s property. See People v. Foster, 971 P.2d 1082, 1085 (Colo. App. 1998).

[10, 11] ¶ 9 In Colorado, a person may be found guilty of robbery if she takes items from a human victim’s person or presence and use force, simultaneously or in any sequence. See Borghesi, 66 P.3d at 97–103 (because Colorado’s robbery statutes are primarily intended to protect people, not property, a robbery victim is a person). People v. Bartowsheaki, 661 P.2d 235, 244 (Colo. 1983), articulates this course of transaction rule as follows: "The gravamen of robbery is the application of physical force or intimidation against the victim at any time during the course of a transaction culminating in the taking of property from the victim’s person or presence." (Emphasis added.)

¶ 10 As relevant here, "[a] person who commits robbery is guilty of aggravated robbery if during the act of robbery or, the immediate flight therefrom," the person possesses a deadly weapon. § 18-4-302(1)(d).

B. No Evidence Supports the Taking Element for Robbery and Aggravated Robbery

[12] ¶ 11 The Attorney General does not dispute that Mortenson failed to take anything from Williams’s person or presence, instead asserting that the taking element in the robbery statute is satisfied by other evidence when applying the course of transaction rule from Bartowsheski, 661 P.2d at 244. Specifically, the Attorney General argues that (1) robbery does not require a successful taking from a person; (2) the theft of Target merchandise establishes the necessary taking for a robbery conviction; (3) the use of force after property theft establishes a robbery under the course of transaction rule as interpreted by People v. Buell 2017 COA 148, ¶ 24, 442 P.3d 961, aff’d, 2019 CO 27, 439 P.3d 857: "when a defendant uses force or intimidation to retain control over property he has already taken, he commits robbery"; and (4) the use of force in the immediate flight after a theft is sufficient to sustain a robbery conviction. We are not persuaded that the taking element of robbery may be satisfied by any facts other than those defined in the robbery statute. See People v. Hopkins, 2013 COA 74, ¶ 8, 328 P.3d 253 ("The only ‘facts’ necessary to constitute a crime are said to be those that appear on the face of the statute as a part of the definition of the crime." (quoting Patterson v. New York, 432 U.S. 197, 221, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977))).

¶ 12 As we discussed above, an element of robbery is that property must be taken from a victim’s person or presence, and every element of robbery is an element of aggravated robbery. See Borghesi, 66 P.3d at 97, 103; see also § 18-4-301(1). Robbery victims are people, not businesses, so Williams, not Target, is the named victim of Mortenson’s aggravated robbery charge. See Borghesi, 66 P.3d at 103.

¶ 13 The prosecution presented surveillance video evidence from the Target exit vestibule showing that Williams was only two steps away from Mortenson and her purse when she reached inside her shirt for the gun. The surveillance video shows that the unpaid-for Target property was not on Williams’ "person," but it was in his "presence." It also shows that Mortenson ostensibly intended to use force to take the property from his presence.

¶ 14 But was the merchandise taken from Williams’ presence? We perceive no evidence to support that finding. The surveillance video, shows that Mortenson had no chance to take property from Williams’ presence because he did not allow her to create space between them, and as soon as she pulled the gun from her shirt, he...