People v. Poot-Baca

544 P.3d 683

2023 COA 112

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

v.Christopher F. POOT-BACA, Defendant-Appellant.

Court of Appeals No. 20CA1153

Colorado Court of Appeals, Div. IV.

Announced November 30, 2023

City and County of Denver District Court No. 19CR1327, Honorable Jay S. Grant, Judge

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Elyse Marie Maranjian, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE NAVARRO

¶ 1 Defendant, Christopher F. Poot-Baca, appeals the judgment of conviction imposed on jury verdicts finding him guilty of robbery of an at-risk person, identity theft, and criminal possession of a financial device. He also appeals the district court’s restitution order. We affirm the judgment and order. In doing so, we hold that criminal possession of a financial device is not a lesser included offense of identity theft.

I. Factual and Procedural History

¶ 2 On the night of January 14, 2019, eighty-one-year-old Minnie Sheppard was waiting at a bus stop when a man pushed her to the ground, took her purse and bag, and ran away. Police and paramedics arrived at the scene and transported Sheppard to the hospital, where she was diagnosed with a knee fracture.

¶ 3 While at the crime scene, Sheppard described her assailant’s physical appearance to the officers and said he had been drinking out of a Coca-Cola (Coke) bottle, which he dropped before attacking her. At the hospital, she clarified that it was actually a Coke can. An officer collected a Coke can from the crime scene, and a DNA sample taken from it matched that of Poot-Baca.

¶ 4 Sheppard’s credit card, a Discover Card, was in her purse when it was stolen. The following day, three unauthorized charges were made online with the credit card. A few hours later, two men shopped at a Foot Locker store, and one tried to use her card. The transactions were declined, and the interaction was recorded on surveillance video. Poot-Baca was later arrested wearing a sweatshirt very similar to the one worn by the man in the surveillance video — a purple sweatshirt bearing an image of Marilyn Monroe.

¶ 5 The prosecution charged Poot-Baca with robbery of an at-risk adult, a crime of violence, identity theft, and criminal possession of a financial device. A jury convicted him as charged.

¶ 6 On appeal, Poot-Baca contends that the district court erred by (1) admitting evidence of Sheppard’s pretrial identification of him and her identification of him during trial; (2) failing to merge the possession of a financial device conviction with the identity theft conviction because the former is a lesser included offense of the latter; and (3) ordering restitution for uncharged conduct.

II. Identification Evidence

[1] ¶ 7 Poot-Baca contends that the district court erroneously admitted into evidence Sheppard’s identifications of him as the robber because they were the unreliable products of an impermissibly suggestive pretrial identification procedure. We conclude, however, that any error was harmless beyond a reasonable doubt.

A. Standard of Review and Preservation

[2, 3] ¶ 8 Because the admission of an unreliable identification of the defendant violates due process, People v. Martinez, 2015 COA 37, ¶ 11, 378 P.3d 761, and because Poot-Baca preserved the issue, we apply the constitutional harmless error standard to determine whether any error requires reversal. See id. at ¶ 10. "Under this standard, the prosecution must show the error was harmless beyond a reasonable doubt." Id. "If there is a reasonable possibility the error contributed to the conviction, we will reverse." Id.

B. Relevant Facts

¶ 9 Sheppard provided a description of the robber shortly after the incident, but she did not identify anyone as the robber when presented with two photographic arrays of potential suspects, one of which included a photograph of Poot-Baca.

¶ 10 Before trial, the parties appeared in court for a deposition of Sheppard under section 18-6.5-103.5, C.R.S. 2023, premised on her at-risk status. The prosecution wished to preserve her testimony for presentation at trial if she was not available at the time of trial. See § 18-6.5-103.5(4). Defense counsel sought to waive Poot-Baca’s appearance at the deposition, but the prosecutor objected. The district court ruled that Poot-Baca had to attend the deposition because Sheppard’s deposition testimony might become a substitute for her trial testimony.

¶ 11 The prosecutor did not ask Sheppard to identify her assailant during the deposition. Immediately afterward, however, Sheppard spontaneously told the prosecution’s investigator that she recognized Poot-Baca as her assailant. Defense counsel moved to suppress this identification and any subsequent in-court identification. The court denied the motion, finding there was no "impermissibly suggestive pretrial identification procedure arranged by law enforcement" and "[t]he inherent suggestiveness of the courtroom setting [did] not rise to the level that requires the Court to assess the identification for reliability under [Neil v.] Biggers[, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)]."

¶ 12 Sheppard testified during the trial. The prosecutor asked her about recognizing Poot-Baca as the robber during the deposition. Sheppard confirmed that she had recognized him then, and she again identified him during trial as the man who had robbed her. Defense counsel extensively cross-examined Sheppard about the circumstances surrounding her identification of Poot-Baca, calling its reliability into question in light of those circumstances.

C. Analysis

¶ 13 Poot-Baca contends that the district court erred by (1) denying his request to waive his presence at the deposition; (2) admitting Sheppard’s pretrial identification of him following the deposition because it was unreliable under the circumstances; and (3) admitting her subsequent in-court identification. We need not decide whether the court erred because any error was harmless in light of the other identification evidence admitted at trial and not challenged on appeal.

¶ 14 Most significantly, the prosecution admitted DNA evidence that identified Poot-Baca as the, robber. Sheppard told officers immediately after the robbery that the robber had been drinking a Coke product and had thrown the can on the ground at the bus stop. Officers retrieved the Coke can approximately twenty minutes later and found no other Coke cans at the bus stop. According to other trial evidence, a match for the DNA profile obtained from the can was "estimated to be at least 2 octillion times more likely if the sample originated from Christopher Poot-Baca than if it originated from one unknown unrelated person." Based on this data, and in the absence of a showing that Poot-Baca had an identical twin, the evidence showed that the probability was greater than 99.9 percent that Poot-Baca was the source of the DNA on the Coke can.

¶ 15 At trial, Poot-Baca argued that the DNA evidence established only that he was in the area some time before the robbery. He presented somewhat vague evidence that he had attended appointments in the area near the bus stop and that he did not show up at an appointment on the day of the robbery. But that evidence did not actually place him at the bus stop previously or show that he took the bus on prior occasions. In any event, the fact that Sheppard saw the robber drinking out of the Coke can immediately before the robbery firmly connected Poot-Baca to the robbery given the DNA evidence.¹

¶ 16 Moreover, a still photo from an officer’s body camera footage recorded when the officer first responded to the scene supported Sheppard’s account. That photo shows a Coke can on a sidewalk. Photos taken by officers when they returned to the scene twenty minutes later also show a Coke can on the sidewalk. None of the photos depicts any other Coke cans. If Poot-Baca’s theory that he might have left the Coke can at the bus stop before the robbery were true, however, there should have been two Coke cans left at the bus stop: the can with his DNA as well as the one the robber left. But the police discovered only the Coke can with Poot-Baca’s DNA. Hence, to believe the defense theory, the jury would have had to find that, in the twenty minutes between the police’s first response to the scene and their second, someone removed the Coke can the robber threw on the ground and replaced it with a Coke can bearing Poot-Baca’s DNA. We do not discern a reasonable possibility that the jury would have made this finding if only Sheppard’s identifications of Poot-Baca had not been admitted at trial.

¶ 17 Furthermore, the prosecution presented evidence that the person who tried to use Sheppard’s credit card at Foot Locker shortly after the robbery wore the same distinctive sweatshirt as Poot-Baca wore when he was arrested a month later. That is, the evidence showed that Poot-Baca possessed Sheppard’s credit card taken during the robbery and attempted to use it the next day.

¶ 18 As a result, the prosecution presented overwhelming evidence that Poot-Baca was the robber, independent of Sheppard’s identifications of him. Given this other evidence identifying him as the culprit, we conclude that the guilty verdicts were surely unattributable to the alleged error in admitting Sheppard’s identifications. Therefore, the alleged error was harmless beyond a reasonable doubt. See Martinez, ¶ 15 (holding that, given the substantial evidence that the defendant was the person whom the victim saw trying to break into her home, which was independent of the victim’s identification of him during a show-up procedure, any error in admitting the identification evidence was harmless beyond a reasonable doubt); see also People v. Singley, 2015 COA 78M, ¶ 34, 412 P.3d 741 ("[C]onsidering the extensive evidence of...