People v. Wright

498 P.3d 1147

2021 COA 106

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

v.Michael Thomas Jean WRIGHT, Defendant-Appellant.

Court of Appeals No. 18CA1408

Colorado Court of Appeals, Division III.

Announced August 12, 2021

Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dayna Vise, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶ 1 Defendant, Michael Thomas Jean Wright, appeals her¹ judgment of conviction entered on jury verdicts finding her guilty of second degree burglary, child abuse, resisting arrest, obstruction of a peace officer, harassment, and possession of drug paraphernalia. This appeal requires that we address an apparent issue of first impression:

Is harassment under section 18-9-111(1)(a), C.R.S. 2020, a "crime against another person" that can serve as a predicate offense for second degree burglary under section 18-4-203, C.R.S. 2020?² Because the statutory elements of the offense necessarily constitute "a crime against another person," we decline to follow the fact-specific approach to resolving such inquiries espoused in People v. Poindexter , 2013 COA 93, 338 P.3d 352. Instead, we conclude, as a matter of law, that the offense can serve as a predicate to second degree burglary.

¶ 2 Having so concluded, and because we also reject Wright's contention that the trial court's ex parte communications with the jury violated her constitutional rights to counsel and to be present, we affirm her conviction.

¶ 3 Wright also challenges, on proportionality grounds, the habitual criminal sentence imposed on her second degree burglary conviction. Applying the standard announced in Wells-Yates v. People , 2019 CO 90M, 454 P.3d 191, we conclude that possession of a weapon by a previous offender (POWPO) is not a per se grave or serious crime for purposes of a proportionality review. Because the trial court incorrectly considered POWPO and second degree burglary to be per se grave or serious crimes, we vacate Wright's sentence and remand for a new proportionality review.

I. Background

¶ 4 The jury heard the following evidence.

¶ 5 On October 12, 2017, Wright went to an apartment complex in Colorado Springs ostensibly to search for her daughter, apparently under the belief that her daughter was being held in one of the apartments and was possibly in danger.

¶ 6 Wright began banging on the door of one of the apartment units and indicated that she was looking for "Alexis," who she said was her daughter and whom she believed to be inside the unit. The resident of the unit eventually answered the door and told Wright that her daughter was not there. After a lengthy exchange, the resident closed the door without permitting Wright to enter.

¶ 7 Wright continued her search, banging on the doors of several other nearby apartment units. Eventually, Wright knocked on the door of the unit in which Phillip Bloch was residing with his son. Before answering, Bloch asked who was at the door, to which Wright responded that she was looking for someone named "Jasmine." Bloch opened the door. Wright continued to inquire about "Jasmine," and Bloch indicated that he did not know anyone by that name. Bloch then shut the door.

¶ 8 After knocking on the doors of several other units, Wright returned to Bloch's unit and knocked again. Bloch opened the door, warned Wright to leave the premises, and closed the door again. before closing the door once again. Wright, however, continued to knock on Bloch's door. When Bloch opened the door to warn Wright he was going to call the police, Wright rushed into the unit and tried to grab Bloch by the throat.

¶ 9 A physical altercation ensued, during which Bloch retrieved a firearm from his bedroom. Bloch pointed his firearm at Wright, who was standing near the doorway, and demanded that she "move." Wright began pushing farther into the unit, again asking for "Jasmine." The altercation escalated: Bloch pushed Wright up against a wall and aimed the firearm at her stomach while Wright continued to grab Bloch by his throat. Bloch's two-year-old son approached the scuffle, and Wright, apparently in an effort to attack Bloch, kicked Bloch's son across the room. Bloch pulled the trigger of his firearm three times, but it failed to fire. Bloch tossed the firearm aside and pushed Wright out of the apartment. He then called the police.

¶ 10 Police responded to the apartment complex and arrested Wright after having to subdue her with physical force. The police searched her person and discovered a pipe that later tested positive for methamphetamine.

¶ 11 Wright was charged with possession of drug paraphernalia, obstruction of a peace officer, resisting arrest, child abuse, harassment, and second degree burglary (predicated on harassment).³ She was also charged with five habitual offender counts.

¶ 12 Following a two-day trial, a jury found Wright guilty on all substantive counts.

¶ 13 At Wright's sentencing hearing, the trial court adjudicated Wright to be a habitual offender. After conducting an abbreviated proportionality review, the court sentenced her to forty-eight years in the custody of the Department of Corrections for her second degree burglary conviction consistent with the habitual criminal sentencing statute. The court merged Wright's harassment conviction into her second degree burglary conviction.⁴ It imposed a concurrent ninety-day sentence for Wright's child abuse, resisting arrest, and obstruction of a peace officer convictions.⁵

II. Sufficiency of the Evidence

¶ 14 Wright contends that the crime of harassment, as charged under section 18-9-111(1)(a), cannot serve as a predicate offense for second degree burglary because it is not "a crime against another person." And even if it can, she contends, there was insufficient evidence presented at trial to support her burglary conviction predicated on harassment. Accordingly, she argues, her conviction and sentence for burglary must be vacated. We disagree with both contentions.

A. Harassment is Necessarily a "Crime Against Another Person"

¶ 15 We first address Wright's contention that her burglary conviction cannot be predicated on harassment.

¶ 16 As relevant here, "[a] person commits second degree burglary ... if the person knowingly breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry in a building or occupied structure with intent to commit therein a crime against another person or property." § 18-4-203(1). Thus, only those crimes "against another person or property" can serve as a predicate offense for second degree burglary. Whether the crime of harassment can be so classified presents a question of statutory interpretation that we review de novo. See Poindexter , ¶ 6.⁶

¶ 17 The General Assembly has not defined the term "crime against another person." However, in Poindexter , a division of this court ascribed to the term the following definitions:

1. "[a] category of criminal offenses in which the perpetrator uses or threatens to use force"; or

2. "[a] crime against the body of another human being."

Poindexter , ¶ 11 (quoting Black's Law Dictionary 401, 1112 (8th ed. 2004)); see id. at ¶ 29 (applying those definitions). We agree with the division in Poindexter that these definitions accord the term its plain and ordinary meaning. See id. at ¶ 26. Thus, we apply these definitions here to effectuate the legislature's intent. See, e.g. , McCoy v. People , 2019 CO 44, ¶ 37, 442 P.3d 379 ("[T]o ascertain and give effect to the legislature's intent ..., we look first to the language of the statute, giving its words and phrases their plain and ordinary meanings.").

¶ 18 Under section 18-9-111(1)(a), "[a] person commits harassment if, with intent to harass, annoy, or alarm another person, he or she ... [s]trikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact." Thus, to commit harassment, one necessarily must subject another to some form of "physical contact." Unequivocally, then, the offense requires that one engage in an act "against the body of another human being." Accordingly, we conclude, as a matter of law, that harassment is a "crime against another person."

¶ 19 Wright advances two arguments opposing such an interpretation. Neither is persuasive.

¶ 20 First, Wright points out that the harassment statute is located in article 9 of title 18 (entitled "Offenses Against Public Peace, Order, and Decency"), not in article 3 (entitled "Offenses Against the Person"). She suggests, therefore, that harassment is not a "crime against another person," but is instead an offense against "public peace, order, and decency," placing it outside the class of crimes designated by the legislature as possible predicates to burglary. Yet Wright also acknowledges that "the placement of criminal statutes in particular articles does not necessarily reflect the legislature's intent." Poindexter , ¶ 28. The titles of the specific articles and parts in the statutory code "are generally left to the revisor of statutes, who possesses no authority to make substantive statutory changes." People v. Borghesi , 66 P.3d 93, 102 (Colo. 2003). And even if we were to assume that the statute's organizational placement reflects the will of the legislature, the plain language of the statute — which unambiguously indicates that harassment is a "crime against another person" — is controlling in our interpretation.⁷ See McCoy , ¶ 37 ("[T]o ascertain and give effect to the legislature's intent ..., we look first to the language of the statute ....").

¶ 21 Second, Wright argues, relying on Poindexter , that we ought to avoid categorizing harassment as "a crime against another person" as a matter of law and instead consider the particular factual circumstances of her case.

¶ 22 In Poindexter , a division of this court considered whether obstructing a...