The People of the State of Colorado, Plaintiff-Appellee, v. Rodrigo Ignacio Albarran-Estrada, Defendant-Appellant. (2023)

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

¶ 1 Defendant, Rodrigo Ignacio Albarran-Estrada, appeals the judgment of conviction entered after a jury found him guilty of first degree burglary, sexual assault on a child with force, second degree assault, first degree criminal trespass, and two counts of a crime of violence. We affirm and remand for further fact finding regarding Albarran-Estrada's status as a sexually violent predator (SVP).

I. Background

¶ 2 The charges in this case stem from an incident in which Albarran-Estrada admitted that he entered eleven-year-old M.C.’s bedroom and took off his clothes. When M.C.’s father realized someone was in the house, Albarran-Estrada fled. M.C.’s father saw Albarran-Estrada drop some items outside the house and found his Mexican passport and an unwrapped condom nearby. In a recorded interview, M.C. said that Albarran-Estrada had attempted to take off her clothes, strangled her, and put his crotch on her stomach.

¶ 3 Albarran-Estrada was charged with first degree burglary, sexual assault on a child with force, two counts of second degree assault (one of which was later dismissed), first degree criminal trespass, and two counts of a crime of violence.

¶ 4 The jury convicted Albarran-Estrada as charged. After merging the convictions for assault and trespass, the trial court sentenced Albarran-Estrada to consecutive terms of twelve years imprisonment for burglary and twenty-four years to life imprisonment for sexual assault on a child.

¶ 5 Albarran-Estrada appeals, claiming the trial court erred by (1) admitting his passport and certain statements made by M.C. during a recorded interview, (2) denying his motion for a mistrial based on prosecutorial misconduct, (3) sentencing him consecutively for charges based on identical facts, and (4) improperly designating him an SVP without making the necessary findings.

II. Evidence of Mexican Nationality

¶ 6 Albarran-Estrada argues the trial court reversibly erred by admitting his Mexican passport and M.C.’s statement that “he was from Mexico” under CRE 401 and CRE 403. We disagree.

A. Applicable Law

¶ 7 To be admissible, evidence must be relevant; and unless otherwise provided by constitution, statute, or rule, all relevant evidence is admissible. People v. Rath, 44 P.3d 1033, 1038 (Colo. 2002); CRE 402. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” CRE 401. “The prosecution is generally entitled to prove the elements of its case against a defendant by evidence of its own choice, and a defendant ‘may not stipulate or admit his way out of the full evidentiary force of the case as the [prosecution] chooses to present it.’ ” People v. Morales, 2012 COA 2, ¶ 9 (quoting Old Chief v. United States, 519 U.S. 172, 186-87 (1997)). However, relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” CRE 403.

¶ 8 “Trial courts are necessarily accorded considerable discretion in deciding questions concerning the admissibility of evidence, and an abuse of that discretion will be found only upon a showing that the ruling was manifestly arbitrary, unreasonable, or unfair.” Rath, 44 P.3d at 1043. “Because the balance required by CRE 403 favors admission, a reviewing court must afford the evidence the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected.” Id.

¶ 9 We review claims of nonconstitutional trial error that were preserved by objection for harmless error. Hagos v. People, 2012 CO 63, ¶ 12. Under this standard, we reverse only if the error affected the parties’ substantial rights — that is, if it “substantially influenced the verdict or affected the fairness of the trial proceedings.” Id. (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).

B. Additional Facts

¶ 10 Before trial, the defense moved to exclude Albarran-Estrada's passport, which showed he had Mexican citizenship. Defense counsel argued that evidence of Albarran-Estrada's nationality was substantially prejudicial, and that the physical passport had limited probative value because Albarran-Estrada's identity could be proved by other means. The trial court denied the motion, concluding the passport was relevant to Albarran-Estrada's identity and the events leading to his arrest, and that any prejudicial effect did not substantially outweigh its probative value.

¶ 11 On the first day of trial, defense counsel requested that the court reconsider its decision and further redact a portion of M.C.’s recorded interview, in which she said, “My dad managed to get his passport; he was from Mexico.” Counsel told the court the defense was not going to dispute the issue of identification and therefore evidence related to the passport had no probative value. The court denied these requests and the prosecution introduced the passport and the unredacted interview at trial.

C. Discussion

1. Admission of the Passport

¶ 12 As an initial matter, we conclude that the trial court properly found Albarran-Estrada's passport relevant under CRE 401. Albarran-Estrada's identity as the person who fled M.C.’s room on the night of the incident was an essential part of the prosecution's case. And the passport was the most direct proof available that he was in fact in M.C.’s room. Beyond the issue of identity, the passport was relevant to M.C. and her father's narrative of events, which described Albarran-Estrada as being naked and dropping personal effects when he fled the property. That Albarran-Estrada's passport was found outside the house made it more probable that these witnesses were accurate in their description of the events that led to Albarran-Estrada's arrest. Accordingly, there was no error in admitting the evidence under CRE 401.

¶ 13 As to CRE 403, we recognize that the defense did not object to introduction of evidence that the passport belonged to Albarran-Estrada and that it was found at the scene. The probative value of the physical passport was therefore less than it would have been if the defense had challenged identification. See Masters v. People, 58 P.3d 979, 1001 (Colo. 2002) (considering the availability of alternative means of proof and whether the fact of consequence for which the evidence is offered is being disputed as part of CRE 403 balancing).

¶ 14 Nevertheless, the probative value of the passport was not substantially outweighed by the danger of unfair prejudice resulting from the passport's country of origin. As discussed, this evidence was relevant not only to Albarran-Estrada's identification but also to M.C.’s and her father's testimony that Albarran-Estrada was naked and fled when he heard M.C.’s father. While Albarran-Estrada did not contest the issue of identification, he did challenge M.C.’s memory and credibility regarding the actions that took place in her bedroom. At trial, M.C. testified that Albarran-Estrada pulled up her shirt and pulled down her shorts, strangled her, and touched her stomach and thighs. Although she initially could not remember further details, after reviewing the transcript of an interview she gave the day after the incident, she further testified that Albarran-Estrada's “crotch body parts were on [her] stomach.” The physical evidence supporting M.C. and her father's version of events was therefore highly probative of Albarran-Estrada's guilt as it tended to support M.C.’s credibility as to what occurred in the bedroom.

¶ 15 Importantly, the prosecution did not suggest that Albarran-Estrada was more likely to have been involved in criminal activity because of his Mexican citizenship. See United States v. James, 30 F.3d 84, 85 (8th Cir. 1994) (distinguishing other cases “where references to ethnic origin were tied to implications of likelihood of involvement in criminal activity because of that ethnic origin, and therefore required reversal of a conviction”). To the contrary, the prosecution introduced the fact of Albarran-Estrada's Mexican nationality only briefly, indirectly, and in the context of establishing his identity and the events leading to his arrest. The prosecutor did not make any other reference to Albarran-Estrada's nationality or immigration status, and no other statements at trial implied that Albarran-Estrada was more likely to have committed the offenses as a result of his nationality.

¶ 16 Additionally, during voir dire, defense counsel fully explored whether the jurors could decide this case without any bias based on race, nationality, or immigration status. The trial court also directly instructed the jury not to consider evidence of nationality for any purpose. See Masters, 58 P.3d at 1001 (considering “the potential effectiveness of a limiting instruction in the event of admission” under CRE 403 (quoting Vialpando v. People, 727 P.2d 1090, 1096 (Colo. 1986))). For all these reasons, we perceive no error in the trial court's admission of the passport.

2. M.C.’s Statement that Albarran-Estrada “was from Mexico”

¶ 17 We do not reach the same conclusion with regard to M.C.’s unredacted interview. Unlike Albarran-Estrada's passport, M.C.’s statement that Albarran-Estrada “was from Mexico” was not relevant. There was no evidence that M.C. knew about Albarran-Estrada's nationality independent of her father having retrieved the passport, so her statement in the interview had no probative value for the issue of Albarran-Estrada's identification or the credibility of the prosecution's witnesses. Therefore, this statement should not have been admitted.

¶ 18 We conclude, however, that the error was harmless. The prosecution's case against Albarran-Estrada was strong, including his own admission that he was in M.C.’s room, M.C.’s father's testimony that he heard M.C. scream, M.C.’s statements that Albarran-Estrada touched her inappropriately, the fact that Albarran-Estrada fled the scene naked, and M.C.’s father's testimony that he found an unwrapped condom where Albarran-Estrada was seen dropping belongings. As discussed above, the prosecution did not emphasize the evidence of Albarran-Estrada's nationality or use it for any purpose. And the jury was properly instructed not to consider this evidence at all. People v. Casias, 2012 COA 117, ¶ 64 (describing factors we consider in assessing the harmlessness of improperly admitted evidence).

¶ 19 On this record, and given that the jury was already aware Albarran-Estrada had Mexican citizenship by way of the properly admitted passport, we conclude M.C.’s irrelevant statement in the interview did not substantially influence the verdict. Hagos, ¶ 12. Accordingly, reversal is not required.

III. Prosecutorial Misconduct and Motion for Mistrial

¶ 20 Albarran-Estrada also contends the trial court erred by allowing prosecutorial misconduct during closing argument and by denying his motion for a mistrial. We discern no error.

A. Applicable Law

¶ 21 In reviewing prosecutorial misconduct claims, we consider first whether the prosecutor's arguments were improper and then whether any improper statements require reversal under the applicable standard. People v. Carter, 2015 COA 24M-2, ¶ 63 (describing the two-step analytical framework set forth in Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010)). “Claims of improper argument must be evaluated in the context of the argument as a whole and in light of the evidence before the jury.” People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010).

¶ 22 A prosecutor's closing argument should be restricted to the evidence and reasonable inferences to be drawn therefrom on the issue of whether guilt has been proved beyond a reasonable doubt. People v. Ferrell, 200 Colo. 128, 131, 613 P.2d 324, 326 (1980). It is improper for a prosecutor to misstate the law, People v. McMinn, 2013 COA 94, ¶ 62, or “to use arguments calculated to inflame the passions or prejudice of the jury,” People v. Oliver, 745 P.2d 222, 228 (Colo. 1987). “The meaning and effect of particular remarks made in a prosecutor's closing argument must be evaluated in the context of the evidence and the closing argument as a whole.” People v. Moya, 899 P.2d 212, 218 (Colo. App. 1994).

¶ 23 Where a defendant claims that a trial court's refusal to declare a mistrial violates his constitutional rights, we first determine whether an error occurred based on the totality of the circumstances. People v. Santana, 255 P.3d 1126, 1130 (Colo. 2011). In the absence of a constitutional violation, we review the decision to grant or deny a motion for mistrial for an abuse of discretion. Id.

B. Additional Facts

¶ 24 At defense counsel's request, the trial court instructed the jury on the defense of self-induced intoxication and the lesser-included offense of attempted sexual assault on a child.

¶ 25 During closing argument, the prosecutor argued, “The defense has put forth and you've been instructed on his defense of intoxication ․” The trial court sustained defense counsel's objection, instructing the jury that “[t]he instructions of law come from the [c]ourt and they should be read together as a whole.”

¶ 26 During rebuttal closing argument, the prosecutor put up a slide that said, “Attempted Sex Assault? ․ The defense requests this charge — and it would require you to disregard everything that happened in [M.C.’s] bed.” Defense counsel objected to the slide. At the bench, the trial court told the prosecutor that he could comment on defense counsel's arguments, but the instructions come from the court. The court further noted for the record that the “slide was up for a few seconds” before it was taken down.

¶ 27 At the end of rebuttal closing argument, the prosecutor argued,

[Y]ou will know once you think about this case and think about the guilty verdict, that law enforcement conducted a very thorough investigation in the case and did exactly what they should do, that everyone who responded did exactly as they should do when this man sexually assaults [M.C.]. And you think to yourself this guy was completely guilty, and you will know that you did the right thing.

¶ 28 Defense counsel objected to improper argument. The trial court told the jury, “This is argument,” noting that it would “address that objection later.” The prosecutor continued, “You will know you did the right thing because he is 100 percent guilty based on the evidence.”

¶ 29 Defense counsel subsequently renewed her objection, arguing the prosecutor's comments about doing the right thing were calculated to inflame the passions of the jury. She also moved for a mistrial based on the cumulative effect of the prosecutor's statements during closing and rebuttal closing argument. The trial court overruled the objection and denied the motion for a mistrial.

C. Discussion

¶ 30 As the trial court correctly noted when it instructed the jury and admonished the prosecutor, instructions of law come from the court, not from either party. The prosecutor's suggestions that certain jury instructions were “put forth” or “request[ed]” by the defense were therefore inappropriate. But the trial court sustained defense counsel's objection to the prosecutor's statement that “[t]he defense has put forth ․ his defense of intoxication” and it gave a curative instruction to the jury. People v. Hogan, 114 P.3d 42, 55-56 (Colo. App. 2004) (“The remarks were corrected when the court sustained the objections, admonished the prosecutor, and appropriately instructed the jury.”). Although the court did not instruct the jury again when the prosecutor displayed a slide indicating that the defense requested a charge, we must presume the jury continued to understand and heed the court's instructions absent a showing to the contrary. Id.

¶ 31 The trial court further observed that the inappropriate slide was visible to the jury for only “a few seconds,” and our review of the record as a whole demonstrates the prosecutor's improper comments regarding the origin of certain instructions were an isolated portion of closing and rebuttal closing argument. We therefore conclude it is unlikely that these instances of misconduct substantially influenced the verdict. See People v. Munsey, 232 P.3d 113, 124 (Colo. App. 2009) (finding no abuse of discretion under these circumstances).

¶ 32 Albarran-Estrada also argues the prosecutor improperly expressed a personal opinion about his guilt and misled the jury when he argued the jury would know it had done “the right thing” if it found Albarran-Estrada guilty. At trial, however, defense counsel asserted that this comment was “improper closing argument” and that it “invokes the passions of the jury and burden-shifts.” Because the basis for the objection on appeal is different, his argument is unpreserved, and we review for plain error. Martinez v. People, 2015 CO 16, ¶ 14. “An error is plain if it is obvious, substantial, and so undermined the fundamental fairness of a trial as to cast serious doubt on the reliability of the conviction.” People v. Dominguez-Castor, 2020 COA 1, ¶ 85.

¶ 33 In any event, we conclude the prosecutor's argument that convicting Albarran-Estrada was “the right thing” was neither improper nor prejudicial. The prosecutor's argument was brief and made in the context of discussing the evidence supporting a conviction, including the “thorough investigation” conducted by law enforcement. See Munsey, 232 P.3d at 124. The trial court also instructed the jury that this comment was only “argument,” and the prosecutor then reiterated that the jury's conclusions should be “based on the evidence.” We therefore conclude that allowing the comment did not constitute error, let alone plain error. See People v. Garcia, 2021 COA 80, ¶ 40 (finding no plain error where “[i]n opening statement and in closing argument, the prosecutor asked the jury to ‘do the right thing’ only after discussing the evidence” and where the comment was “brief and a small part of summation”) (cert. granted on other grounds, Mar. 28, 2022).

¶ 34 We conclude that Albarran-Estrada's rights were not violated during closing and rebuttal closing argument. The trial court therefore properly denied his motion for a mistrial. Santana, 255 P.3d at 1130.

IV. Consecutive Sentences

¶ 35 Albarran-Estrada next asserts that the trial court improperly imposed consecutive sentences for burglary and sexual assault on a child because these convictions were based on identical evidence. We are not persuaded.

A. Applicable Law

¶ 36 “[W]hen the district attorney prosecutes two or more offenses based on the same act or series of acts arising from the same criminal episode and the defendant is found guilty of more than one count on the basis of identical evidence,” the sentences must run concurrently. Juhl v. People, 172 P.3d 896, 899 (Colo. 2007); see § 18-1-408(3), C.R.S. 2022.

¶ 37 “To determine whether the evidence is identical, a court must decide whether the separate convictions were based on more than one distinct act and, if so, whether those acts were separated by time and place.” People v. Patton, 2016 COA 187, ¶ 24 (quoting People v. Glasser, 293 P.3d 68, 79 (Colo. App. 2011)); see also Juhl, 172 P.3d at 902.

B. Discussion

¶ 38 Albarran-Estrada argues that his convictions for burglary and sexual assault on a child were based on identical evidence because the evidence that he acted with the requisite intent to commit first degree burglary was the same evidence supporting his conviction for sexual assault.

¶ 39 But the determination of whether evidence is identical for purposes of concurrent sentencing under section 18-1-408(3) hinges on the act itself, not the element of intent. See Juhl, 172 P.3d at 904 (Coats, J., dissenting) (noting that the effect of the majority's holding in Juhl is “to limit the element under consideration to the criminal act alone”). The act of first degree burglary occurs when a person “enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure.” § 18-4-202(1), C.R.S. 2022. The act of sexual assault on a child occurs when a person subjects a child to sexual contact. See § 18-3-405, C.R.S. 2022.

¶ 40 Albarran-Estrada was charged with first degree burglary based on his unlawful entry into M.C.’s home — an act that occurred and was completed before the act constituting sexual assault. Even if his intent for each act was the same, “the evidence needed for a burglary conviction is not the same as that required for a conviction of sexual assault.” People v. Tivis, 727 P.2d 392, 394 (Colo. App. 1986). We therefore conclude that section 18-1-408(3) does not apply, and the trial court properly sentenced Albarran-Estrada consecutively. See id. (holding that “these crimes are separate and distinct” and “[e]ven though [they] arose out of the same criminal episode, they are separately punishable”); see also § 18-1.3-1004(5)(a), C.R.S. 2022 (requiring consecutive sentences for “additional crimes arising out of the same incident as [a] sex offense”).

V. Sexually Violent Predator Status

¶ 41 Finally, Albarran-Estrada argues, the State concedes, and we agree, that the trial court did not make specific findings of fact or enter an order regarding Albarran-Estrada's designation as an SVP, as required by statute. See § 18-3-414.5(1)(a)(I), C.R.S. 2022 (“Based on the results of the [SVP risk] assessment, the court shall make specific findings of fact and enter an order concerning whether the defendant is a sexually violent predator.”) (emphasis added). Albarran-Estrada argues the appropriate remedy is to order the trial court to remove this designation from the mittimus. The State argues the proper remedy is remand. We agree with the State and conclude the appropriate remedy is to remand the case to the trial court to make the required factual findings and to enter an order accordingly. People v. Lopez, 2020 COA 41, ¶ 33. If the court concludes that Albarran-Estrada is not an SVP, it should amend the mittimus as necessary.

VI. Disposition

¶ 42 The judgment is affirmed, and the case is remanded with directions.

Opinion by JUDGE PAWAR

J. Jones and Yun, JJ., concur JUDGE J. JONES and JUDGE YUN concur.