Opinion
21CA1103
02-22-2024
The People of the State of Colorado, Plaintiff-Appellee, v. Megan Marie Nalwood, Defendant-Appellant.
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Larimer County District Court No. 20CR1762 Honorable Susan Blanco, Judge
Opinion Modified Petition for Rehearing GRANTED
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
OPINION
HARRIS J.
¶ 1 Defendant, Megan Marie Nalwood, appeals the judgment of conviction entered on jury verdicts finding her guilty of vehicular eluding, eluding or attempting to elude a police officer (eluding a police officer), driving under restraint (DUR), and driving an unregistered vehicle. We vacate the conviction and sentence for DUR, but we otherwise affirm the judgment.
I. Background
¶ 2 In August 2020, an officer conducting routine patrol on a highway near Longmont noticed a car without a license plate. He pulled up behind the car and turned on his patrol vehicle's lights to initiate a traffic stop. The car began to move to the shoulder but then sped up and drove away. The officer activated his siren and pursued the car for about ten miles.
¶ 3 At that point, because the car was approaching downtown Longmont, the officer ended his pursuit and other police officers deployed spike strips, which stopped the car. The officers approached the car with guns drawn and arrested Nalwood. During the arrest, Nalwood told police that she had an outstanding warrant in Denver.
¶ 4 The People charged Nalwood with vehicular eluding, a class 5 felony; DUR; and operating an unregistered vehicle. Later, defense counsel asked the court to instruct the jury on what he characterized as the "lesser non-included" offense of eluding a police officer, a class 2 traffic misdemeanor.
¶ 5 At trial, defense counsel acknowledged that "some of what [Nalwood] did [was] certainly a crime," and he said that the jury should "find her guilty" of eluding a police officer. The theory of defense was that Nalwood had not driven recklessly, so she was not guilty of vehicular eluding.
¶ 6 The jury returned a verdict finding Nalwood guilty of all charges, including the added charge of eluding a police officer.
¶ 7 On appeal, Nalwood contends that the court should have granted her for-cause challenge to a juror, the DUR conviction is not supported by the evidence, the court erroneously admitted certain evidence, and the two eluding convictions should merge because the misdemeanor is a lesser included offense of the felony. We agree with her sufficiency of the evidence claim but otherwise reject her contentions.
II. For-Cause Challenge to Juror R A. Facts
¶ 8 Initially, Juror R attempted to be excused from jury duty because she had signed up for a half-marathon and if deliberations ran long, she "[wouldn't] be able to make it." The court declined to excuse her based on hardship.
¶ 9 Later, Juror R said that she felt "wishy-washy" about the vehicular eluding charge, because reckless driving puts "other people in danger," so she thought she might be "slightly biased," though she was not "entirely sure why." She also said that she would "have a problem" if Nalwood did not testify, but only because the charges involved eluding.
¶ 10 Defense counsel challenged Juror R and another juror "for essentially the same reason[s]": they had a concern about the charges, and it appeared that they would "shift[] the burden to [the defense] just based on the nature of the charges." The prosecutor asked the court to examine the jurors further.
¶ 11 With respect to Juror R, the court gave a detailed explanation of the presumption of innocence and emphasized that the prosecution had the burden to prove the charges beyond a reasonable doubt. To "make sure that there [wa]s no bias involved," the court asked Juror R whether she was "so uncomfortable" with an accusation of reckless driving that she was "already siding with the prosecution." Juror R responded, "No. I do think that I can give a verdict that is fair, based off of just the evidence that is provided." The court then clarified that the evidence might not include testimony from the defendant and asked whether that "would be a strike against" the defendant. Juror R said no.
Defense counsel declined to ask any follow-up questions, and he did not offer any additional reasons for his challenge to Juror R. The court denied the challenges for cause, finding that both jurors "would be fair and impartial."
¶ 12 Juror R sat on the jury.
B. Analysis
¶ 13 Every criminal defendant has a constitutional right to a trial before a fair and impartial jury. See U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; see also People v. Clemens, 2017 CO 89, ¶ 15. To protect this right, a juror who is biased in favor of or against either side must be dismissed. People v. Gulyas, 2022 COA 34, ¶ 18.
¶ 14 Still, the fact that a prospective juror initially misunderstands the law or has a preconceived belief as to some aspect of the case does not necessarily require the juror's dismissal for cause. See Marko v. People, 2018 CO 97, ¶ 21; § 16-10-103(1), C.R.S. 2023. "If, after further examination, the court is convinced that the juror will follow the law and be impartial — in other words, if 'rehabilitative efforts' prove successful — the juror should not be removed." Gulyas, ¶ 19 (quoting Clemens, ¶ 16).
¶ 15 We review the trial court's denial of a challenge for cause for an abuse of discretion. People v. Maestas, 2014 COA 139M, ¶ 11. This standard gives deference to the trial court's assessment of the credibility of prospective jurors' responses and serves to discourage reviewing courts from second-guessing the trial court's decision based on a cold record. Clemens, ¶ 13. A trial court abuses its discretion when it makes a decision that is manifestly arbitrary, unreasonable, or unfair, or when it misconstrues or misapplies the law. People v. Oliver, 2020 COA 97, ¶ 7.
¶ 16 We will assume that Juror R initially expressed some bias, primarily based on the nature of the charges. The question, then, is whether she was sufficiently rehabilitated through the court's colloquy with the challenged jurors. See People v. Merrow, 181 P.3d 319, 321 (Colo.App. 2007).
¶ 17 Nalwood contends that because the court asked leading questions, we should mistrust the sincerity of Juror R's responses. We do not dispute that problems could arise if a trial judge "subjects a prospective juror with a strong preconceived bias to a barrage of leading questions." Id. at 323 (Webb, J., concurring). But here, Juror R expressed a nebulous bias and the court's questions did not suggest a particular answer. Rather than a "barrage" of leading questions, the court specifically invited Juror R "just to explain" her concerns about the eluding charge. And we do not see anything particularly pointed about the court's question of whether the defendant's decision not to testify would be a "strike against her." The court needed to know whether Juror R had retreated from her earlier comments. See People v. Sandoval, 706 P.2d 802, 804 (Colo.App. 1985).
¶ 18 We also reject Nalwood's argument that the court's rehabilitation efforts were inadequate because its questions were inaccurate or incomplete. Asking Juror R whether she was "already siding with the prosecution" before the case even started did not flip the presumption of innocence and imply that the parties were on equal footing. The court had just reiterated the concept of the presumption of innocence and explained the nature of the prosecution's burden. So the question could only have implied that "siding with the prosecution" would be inconsistent with the applicable legal principles and disqualify Juror R from jury service.
¶ 19 Nor do we require an exact match between the juror's comments and the court's rehabilitative instructions and questions. Juror R said she had a concern about the eluding charge and that there "might be a problem" if Nalwood did not testify or present evidence. The court's instructions and questions on the presumption of innocence, the prosecution's burden of proof, and the defendant's right to remain silent sufficiently covered Juror R's potential biases. And "it was within the trial court's unique role in jury selection and discretion" to credit Juror R's subsequent assurance that she could render a verdict based on the evidence and be fair and impartial. Vigil v. People, 2019 CO 105, ¶ 24; see also id. (Neither the Federal nor the Colorado Constitution "dictate[s] a catechism for voir dire.") (citation omitted); People v. Fleischaker, 2013 COA 2, ¶ 27 ("A juror's . . . expression of a belief that he or she can be fair [is] deemed sufficient to deny a defendant's challenge for cause.").
¶ 20 Accordingly, we conclude that the court did not abuse its broad discretion by denying the challenge for cause.
III. Sufficiency of the Evidence for DUR
¶ 21 A person commits DUR if she drives a motor vehicle on any highway with knowledge that her license is under restraint. See § 42-2-138(1)(a), C.R.S. 2023. "Knowledge" means "actual knowledge of any restraint from whatever source or knowledge of circumstances sufficient to cause a reasonable person to be aware that such person's license or privilege to drive was under restraint." § 42-2-138(4)(a). Even under the second part of the definition, the defendant must have "actual subjective knowledge" of the relevant circumstances. People v. Ellison, 14 P.3d 1034, 1036-37 (Colo. 2000).
¶ 22 Nalwood contends that the evidence was insufficient to establish that she had knowledge that her license was under restraint.
¶ 23 On a challenge to the sufficiency of the evidence, we review the record de novo to determine whether the evidence, when viewed in the light most favorable to the prosecution, was both substantial and sufficient to support a jury's conclusion that the defendant was guilty beyond a reasonable doubt. People v. Perez, 2016 CO 12, ¶ 8. We examine both direct and circumstantial evidence, and we "give the prosecution the benefit of every reasonable inference which might be fairly drawn from the evidence." Id. at ¶¶ 24-25 (quoting People v. Gonzales, 666 P.2d 123, 128 (Colo. 1983)).
¶ 24 "[M]ere proof of mailing [of the revocation notice] is not sufficient to prove beyond a reasonable doubt a defendant's knowledge of restraint of [her] driver's privilege." People v. Boulden, 2016 COA 109, ¶ 13. Instead, to prove knowledge when the defendant is allegedly served by mail, the prosecution must establish not only that notice was mailed to the defendant, but also the existence of other circumstances tending to show the defendant's knowledge of the revocation, such as the defendant's status as a habitual traffic offender. See People v. Tun, 2021 COA 34, ¶¶ 37-38 (prosecution submitted verification that notice had been mailed and evidence that the defendant was a habitual traffic offender whose driver's license had never been reinstated); People v. Espinoza, 195 P.3d 1122, 1128 (Colo.App. 2008) (prosecution submitted proofs of service of revocation notice and evidence that the defendant was a habitual traffic offender).
¶ 25 In this case, the evidence to support the knowledge element of DUR consisted of (1) Nalwood's Division of Motor Vehicles (DMV) driving record; and (2) two revocation notices from the DMV addressed to Nalwood at an address that did not match the address on her DMV record, one dated September 2, 2019, and one dated December 27, 2019.
¶ 26 The driving record shows that Nalwood's driver's license was revoked in April 2012, reinstated in July 2012, and renewed in 2013. Thereafter, she obtained duplicate licenses from the DMV in 2015 and February 2019. Then, according to the DMV record, her license was revoked in September 2019 and again in December 2019.
¶ 27 But (even setting aside the issue of the inconsistent addresses) there is no proof of service of the two notices dated September 2, 2019, and December 27, 2019. In both Boulden and Tun, the evidence included a "Verification of Mailing of Notices/Orders" from the DMV that contained a statement by an employee verifying "that these notices/orders were deposited" in the mail, with a "handwritten check mark" next to the defendant's name and address. Boulden, ¶ 11; Tun, ¶ 35. The notices purportedly mailed to Nalwood did not include any certificate or verification of mailing.
¶ 28 In fact, the evidence suggests that the notices were not mailed or otherwise served on Nalwood before the date of the offense. The "Proof Of Service" section of Nalwood's driving record shows that two revocation notices were served in 2012 (one by mail, one by the sheriff's office), and one notice was served in September 2020, several weeks after Nalwood was arrested in this case.
The driving record does not show that the September and December 2019 notices were ever mailed, and no one testified that Nalwood had been served.
¶ 29 Additionally, the evidence showed that Nalwood's license had previously been revoked once — eight years earlier for only a few months — and then reinstated, and that she had a valid driver's license until September 2019, less than a year before her arrest. See Boulden, ¶¶ 15-17 (finding that evidence of one suspension, seven months before the offense date, along with proof of service, was not sufficient to prove knowledge). Nalwood's act of eluding could support a finding that she had knowledge of the revocation, but only in combination with other evidence, not on its own. See Espinoza, 195 P.3d at 1128.
¶ 30 In the absence of any proof that the 2019 revocation notices were mailed or otherwise served on Nalwood, the evidence was insufficient to prove that she knew her license was under revocation in August 2020.
We reject Nalwood's argument that the court erred by admitting the DMV records without the required seal. See § 42-2-121(2)(c)(II), C.R.S. 2023. For one thing, the claim is arguably waived. On the first day of trial, while the parties were discussing redactions to the DMV records, the prosecutor represented that with respect to the "certification of the official record, there's no issue. [Counsel are] in agreement." A moment later, defense counsel confirmed that what the lawyers did "not agree on" was limited to the scope of the redactions. At the conclusion of the discussion, the trial court referred to the records as "certified," a description that defense counsel did not dispute. When the records were introduced at trial, the prosecutor and then the witness identified them as "certified" official records, again without any objection from defense counsel. By repeatedly acquiescing in the representation that the DMV records were certified, defense counsel "waived [Nalwood's] right to argue . . . precisely the opposite" on appeal. People v. Kessler, 2018 COA 60, ¶ 36. Regardless, any error was not plain. First, because the parties represented that the records were properly certified, it would not necessarily have been obvious to the court that the logo on the cover page was not a seal. See People v. Pollard, 2013 COA 31M, ¶ 39 ("To qualify as 'plain' error, an error must be so clear-cut, so obvious, that a trial judge should be able to avoid it without benefit of objection."). Second, Nalwood does not contend that certification of the records was deficient in any other respect, and we cannot say that the lack of a seal, standing alone, rendered her trial fundamentally unfair such that we have a serious doubt about the reliability of her conviction. See People v. Wend, 235 P.3d 1089, 1098 (Colo. 2010) ("Ensuring fundamental fairness in trial is the beacon of plain error review."); see also Cardman v. People, 2019 CO 73, ¶ 39 (error is plain if it is obvious and "so undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment" (quoting Hagos v. People, 2012 CO 63, ¶ 14)).
IV. Evidentiary Issues
¶ 31 Nalwood contends that the trial court erred by admitting evidence that she had an outstanding warrant and that the police conducted a "high-risk" traffic stop after they immobilized her car.
A. Standard of Review
¶ 32 We review a trial court's evidentiary ruling for an abuse of discretion, meaning we will not disturb the ruling unless it is contrary to law or manifestly arbitrary, unreasonable, or unfair. See People v. Dominguez, 2019 COA 78, ¶ 13.
B. Evidence of Nalwood's Outstanding Warrant
¶ 33 At the time of her arrest, Nalwood told an officer that she had "a warrant out of Denver courts." Over Nalwood's objection, the court admitted the statement as res gestae evidence of her motive to elude police. Nalwood contends that the court erred because admission of the statement was improper under a res gestae theory and prohibited under CRE 404(b).
¶ 34 After the trial in this case, our supreme court abolished the doctrine of res gestae in criminal cases. Rojas v. People, 2022 CO 8, ¶ 52. In its place, the court adopted an analytical framework based on a distinction between intrinsic and extrinsic evidence. Id. at ¶ 44. Intrinsic evidence refers to evidence or acts that directly prove the charged offense or occurred contemporaneously with, and facilitated, the offense. Id. at ¶ 52. If evidence is not intrinsic, it is extrinsic, and if it implicates a defendant's character, the extrinsic evidence is only admissible in accordance with Rule 404(b). Id. at ¶¶ 44, 52.
¶ 35 At the outset, we reject the People's argument that Nalwood's statement to police about the outstanding warrant was intrinsic evidence because the statement facilitated commission of the eluding offense. To "facilitate" means to "make the commission of (a crime) easier." Black's Law Dictionary 734-35 (11th ed. 2019).
Neither Nalwood's statement about the warrant nor the fact of the warrant itself helped Nalwood elude the police.
¶ 36 Thus, the evidence of the outstanding warrant was extrinsic evidence. And we agree with Nalwood that the evidence implicated her character. So to be admissible, the evidence had to comport with Rule 404(b).
¶ 37 But according to Nalwood, because the prosecution relied exclusively on a res gestae theory, it failed to articulate any precise evidential hypothesis for the evidence's admission under CRE 404(b) and therefore waived that basis for admissibility. We see two flaws in this argument. First, it ignores the settled rule that an appellate court can affirm the trial court's evidentiary ruling on any ground supported by the record, even if that ground was not considered by the trial court. See People v. Trujillo, 2018 COA 12, ¶ 29 n.1; see also People v. Martinez, 36 P.3d 154, 158 (Colo.App. 2001) (determining that prior act evidence was admissible under CRE 404(b) even though the trial court had not conducted the proper analysis). Rojas is consistent with this rule. In that case, the supreme court considered whether, though not admissible as res gestae, the evidence might have been admissible under Rule 404(b), but it concluded that admitting the evidence without a limiting instruction amounted to reversible error. Rojas, ¶ 56. Second, the argument is not supported by the record. At trial, the prosecutor argued that the evidence was admissible to show Nalwood's motive to elude police and the court admitted it for that purpose.
¶ 38 Under Rule 404(b), evidence is not admissible to show that a defendant has a bad character and acted in conformity therewith, but it is admissible to prove motive. See CRE 404(b)(1)-(2); Rojas, ¶ 26. The mere fact that the trial court characterized the evidence as "res gestae" rather than "prior act" evidence is not dispositive. Under these circumstances, what matters is whether the evidence satisfies the four-part test articulated in People v. Spoto, 795 P.2d 1314 (Colo. 1990).
¶ 39 Nalwood does not dispute that the evidence satisfies the first three parts of the test — that the evidence of motive was relevant to a material issue and its logical relevance was independent of a prohibited propensity inference. See id. at 1318. But she says the evidence cannot clear the last step because under CRE 403 its probative value was substantially outweighed by the danger of unfair prejudice. See id.
¶ 40 CRE 403 "strongly favors admissibility of relevant evidence." People v. Vanderpauye, 2023 CO 42, ¶ 59 (citation omitted).
Therefore, when considering the balancing required by Rule 403, "we give the evidence the maximum probative value attributable to it by a reasonable factfinder and the minimum unfair prejudice that may be reasonably expected from it." Id.
¶ 41 The primary contested issue at trial was whether Nalwood drove recklessly. The fact of the outstanding warrant gave Nalwood a motive to drive recklessly to avoid contact with the police. Therefore, the evidence had some probative value.
¶ 42 Still, Nalwood contends that the evidence was unduly prejudicial because the jury would have used evidence of the warrant to infer that she was the type of person who "repeatedly dodged law enforcement." But the fact that Nalwood had "dodged" (i.e., eluded) law enforcement in this case was essentially uncontested, so any prejudice arising from that inference would have been minimal. And we also disagree with her argument that the trial court "failed to mitigate" any prejudice with a limiting instruction. The absence of a limiting instruction was attributable entirely to defense counsel. The trial court offered to instruct the jury that it could use the evidence only for the limited purpose for which it was admitted, but counsel declined the offer, at least implicitly, by never asking for the instruction.
¶ 43 In sum, we conclude that the court did not abuse its discretion by admitting Nalwood's statement about the warrant. C. Testimony That Police Conducted a "High-Risk" Stop
¶ 44 At trial, the prosecution showed body camera video of the pursuit and eventual stop. The video showed multiple police officers shouting directives and approaching Nalwood's car with their guns drawn. Two police officers who testified about the incident described the encounter as a "high-risk traffic stop." One officer explained that police conduct a "high-risk" stop when "there's some type of circumstances outside of the norm or anything that's not, like, a routine traffic stop," particularly when there is "some potential threat." He said that during a "high-risk" traffic stop, officers will "have [their] duty pistols" or "patrol rifles" drawn "for officer safety." A second officer testified about his role during what he called the "high-risk stop."
¶ 45 Nalwood contends that the court erred by admitting the video of the stop and the testimony describing it as a "high-risk" traffic stop. She says the evidence was irrelevant and unduly prejudicial, and it constituted expert opinion testimony in the guise of lay testimony. Because Nalwood failed to contemporaneously object to the admission of the video or any reference to a "high-risk traffic stop," we review for plain error. See Hagos v. People, 2012 CO 63, ¶ 14. Under this standard, we will reverse a conviction only if an error was obvious and so undermined the fairness of the trial as to cast doubt on the reliability of the judgment. Id.
¶ 46 Nalwood acknowledges that the challenged evidence was relevant to "how the incident ended," but she contends that "how the incident ended" was not relevant to any of the charges. To end the incident, though, the police had to use extreme measures, as depicted in the video, which tended to show that Nalwood knowingly eluded the police and drove recklessly. And once the video was shown, the officers were entitled to explain their actions. "Evidence is . . . admissible to explain an officer's conduct in making an arrest." State v. Joos, 966 S.W.2d 349, 354 (Mo.Ct.App. 1998) (officer's testimony was admissible to explain the reasons for the precautions taken during the arrest).
¶ 47 As for the risk of unfair prejudice, we disagree with Nalwood's assertion that the evidence implied that the police had information, "not disclosed to the jury," that Nalwood might have been dangerous. In fact, the opposite is true. The officers testified that they were following protocols that apply whenever a driver disobeys a police officer's signal to stop. And the video showed Nalwood surrendering peacefully. Thus, the only reason the evidence might have led the jury to believe Nalwood was dangerous was based on her driving conduct. And we can hardly say that this kind of prejudice qualifies as "unfair." See Dominguez, ¶ 30 ("Evidence is not unfairly prejudicial 'simply because it damages the defendant's case' but, instead, must have an 'undue tendency to suggest a decision on an improper basis . . . such as sympathy, hatred, contempt, retribution, or horror.'") (citation omitted).
¶ 48 Regardless, and whether the officers' testimony constituted expert testimony or not, any error in admitting the evidence was not plain. True, the video depicted armed officers shouting as they approached Nalwood's car. But as noted, the officers' testimony made clear that those actions were based not on any specific belief that Nalwood was dangerous, but rather on standard police procedures applicable in any eluding situation. Because Nalwood was not substantially prejudiced by the evidence's admission, any error does not cast doubt on the reliability of the judgment.
V. Cumulative Error
¶ 49 We reject Nalwood's cumulative error claim. "For reversal to occur based on cumulative error, a reviewing court must identify multiple errors that collectively prejudice[d]" the defendant's substantial rights. Howard-Walker v. People, 2019 CO 69, ¶ 25. Even assuming the court should have excluded testimony about the "high-risk" nature of the stop, a single error does not amount to cumulative error. See People v. Daley, 2021 COA 85, ¶ 142.
VI. Merger
¶ 50 During trial, defense counsel asked the court to instruct the jury on the "lesser non-included" offense of eluding a police officer. The court sought clarification by asking, "It's a lesser included?" Defense counsel responded, "It's a lesser non-included." Defense counsel told the court that he had advised Nalwood of the consequences of adding a lesser non-included offense to the charges the jury would consider. He agreed, though, that the court should provide a further advisement. Following the further advisement, the court granted the request, and counsel tendered a pattern instruction. At sentencing, the court, with no objection from counsel, imposed a ten-day, time-served jail sentence on the eluding a police officer count.
¶ 51 On appeal, Nalwood contends that the trial court plainly erred by failing to merge the eluding a police officer conviction into the vehicular eluding conviction because the former is a lesser included offense of the latter.
A. Waiver
¶ 52 We conclude that any error was waived. Waiver is the intentional relinquishment of a known right or privilege. People v. Rediger, 2018 CO 32, ¶ 39. Even so, a waiver can be implied; it need not be express. People v. Carter, 2021 COA 29, ¶ 27. Waiver "specifically removes claims from the trial court's consideration," People v. Bryant, 2013 COA 28, ¶ 13 n.2 (citation omitted), and therefore precludes appellate review, Rediger, ¶ 40. Even fundamental rights can be waived. See Stackhouse v. People, 2015 CO 48, ¶ 8.
¶ 53 True, counsel's general acceptance of jury instructions does not establish a waiver. See Rediger, ¶¶ 41-43. But here, defense counsel requested the lesser non-included offense instruction, asserting, more than once, that eluding a police officer was not a lesser included offense of vehicular eluding. Cf. People v. Smith, 2018 CO 33, ¶¶ 16-17 (defendant neither invited nor waived an error in jury instructions where he did not draft, tender, or request the instruction challenged on appeal). The exchange about the instruction was neither brief nor rote. And at no time did counsel retract his representation of the law. See Carter, ¶ 30 (defense counsel waived challenge to constructive amendment of charge by "stipulat[ing] to" the elemental instruction and verdict forms, failing to object when the court went through the instructions, and referring to the amended charge in closing argument).
B. Plain Error Review
¶ 54 But even if Nalwood did not waive the claim, she forfeited it. We review forfeited double jeopardy/merger claims for plain error. Scott v. People, 2017 CO 16, ¶ 13. "To qualify as plain error, an error must generally be so obvious that a trial judge should be able to avoid it without the benefit of an objection," because it contravenes a clear statutory command, a well-settled legal principle, or Colorado case law. Id. at ¶ 16.
1. Applicable Law on Lesser Included Offenses
¶ 55 A defendant may not be convicted of both a lesser included offense and the greater offense. See § 18-1-408(1)(a), C.R.S. 2023; Reyna-Abarca v. People, 2017 CO 15, ¶ 51. 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." Reyna-Abarca, ¶ 64.
¶ 56 When a lesser offense is "statutorily defined in disjunctive terms," meaning it can be committed in alternative ways, "any set of elements sufficient for commission of that lesser offense that is necessarily established" by proving the elements of a greater offense constitutes a lesser included offense. People v. Rock, 2017 CO 84, ¶ 16. In other words, in order to be included, each alternative way of committing a lesser offense need not be a subset of the greater offense — only one way is necessary. Id.
¶ 57 Along similar lines, when a greater offense can be committed in multiple ways, a lesser offense is included if any set of elements sufficient for commission of the greater offense would necessarily prove commission of the lesser. Page v. People, 2017 CO 88, ¶ 10. In Reyna-Abarca, for example, the supreme court concluded that driving under the influence (DUI) is a lesser included offense of vehicular assault - DUI and vehicular homicide - DUI, even though DUI can only be proved by showing that the defendant drove a vehicle "designed primarily for travel on the public highways" while the other offenses could be proved by showing that the defendant drove a "self-propelled device by which persons or property may be moved, carried or transported from one place to another by land, water, or air." Reyna-Abarca, ¶¶ 75, 77-78. "Although the greater offenses in Reyna-Abarca . . . could be established by means that would not necessarily establish commission of the lesser offense (DUI), [the supreme court] concluded that the lesser offense was included in, and therefore merged into, the greater offense because the elements of the lesser offense are a subset of the elements of the greater offense." Page, ¶ 10.
2. Analysis
¶ 58 Vehicular eluding requires proof that (1) the defendant, while operating a motor vehicle; (2) in a reckless manner; (3) knowingly eluded or attempted to elude; (4) a peace officer, also operating a motor vehicle; and (5) the defendant knew or reasonably should have known that she was being pursued by the peace officer. § 189-116.5, C.R.S. 2023.
¶ 59 Eluding a police officer requires proof that (1) the defendant, while operating a motor vehicle; (2) eluded or willfully attempted in any manner to elude; (3) a police officer driving a marked police, sheriff, or state patrol vehicle; (4) after receiving a visual or audible signal directing the defendant to stop her vehicle; and (5) the officer had reasonable grounds to believe the defendant had violated a state or local law. § 42-4-1413, C.R.S. 2023.
¶ 60 Divisions of this court have held that eluding a police officer is not a lesser included offense of vehicular eluding. See People v. Esparza-Treto, 282 P.3d 471, 479 (Colo.App. 2011); People v. Fury, 872 P.2d 1280, 1283 (Colo.App. 1993). Those divisions reasoned that eluding a police officer required proof that the driver had received a visual or audible signal from an officer to stop, while vehicular eluding required proof only that the driver knew or reasonably should have known that she was being pursued by a peace officer, "and this element c[ould] be proven absent any audible or visual signal from the officer." Esparza-Treto, 282 P.3d at 479.
¶ 61 Nalwood argues that after Reyna-Abarca, Rock, and Page, the prior divisions' reasoning no longer holds up. She says that even if the pursuit element could be established by means other than an audible or visual signal, one way of proving that the defendant knew or should have known she was being pursued is by establishing that an officer gave an audible or visual signal to stop. In other words, Nalwood contends that the audible or visual signal element is a subset of the pursuit element. See Reyna-Abarca, ¶ 77 (motor vehicle element of DUI was a subset of the motor vehicle element of vehicular assault - DUI and vehicular homicide - DUI).
¶ 62 As for the element of the officer's reasonable belief that the defendant had violated a state or local law, Nalwood says this element is "implicit in," the vehicular eluding elements "or else the [officer's] seizure [of the defendant] would be illegal."
¶ 63 Regardless of the possible merits of Nalwood's argument, we cannot say that any error was obvious. The concept of plain error is that the trial court does not have to synthesize legal rules and principles or make analytical inferences to arrive at the correct answer — because the correct answer is so clear-cut. But Nalwood's analysis applies separate principles from three cases, none of which involve eluding, and then adds the extra analytical step that certain elements of the lesser offense are "implicit" in the elements of the greater offense. In this case, though, the trial court had no reason to even consider the issue. Defense counsel insisted that eluding a police officer was not a lesser included offense of vehicular eluding. And Esparza-Treto and Fury — which have not been criticized or called into doubt since Reyna-Abarca — supported counsel's position. Under these circumstances, we discern no plain error in the court's failure to merge the eluding convictions. See Scott, ¶ 17.
VII. Disposition
¶ 64 The conviction and sentence for DUR are vacated. In all other respects, the judgment is affirmed.
JUDGE J. JONES and JUDGE GOMEZ concur.