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HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry V. State Of Colorado, Et Al - 053.1 - Exhibit 1District Court, Larimer County, State of Colorado Larimer County Justice Center 201 LaPorte Avenue, Suite 100 Fort Collins, Colorado 80521-2761 (970) 494-3500 court use only  Defendant-Appellant: ROBERT LAWRENCE PERRY, v. Plaintiff-Appellee: THE PEOPLE OF THE STATE OF COLORADO. Case No: 2020CV122 Courtroom: 4B ORDER AFFIRMING CONVICTION This matter comes before the Court on Appellant’s appeal from his County Court conviction of Third Degree Trespass (PO1) under C.R.S. 18-4-504(1). Appellant was convicted by a jury on December 19, 2019. Appellant filed his Notice of Appeal on February 25, 2021. In the notice he raised a number of issues but limited those to two issues in his Opening Brief filed on January 22, 2021. The Appellee filed their Answer Brief on February 26, 2021 after the Court granted a motion to extend the deadline to answer, and Appellant filed his Reply Brief on March 26, 2021. I.Issues Presented Appellant raises two issues on appeal. First, “[i]s C.R.S. 18-4-504(1) unconstitutional as applied to Mr. Perry since the issuance of the exclusionary order that formed the basis of the trespassing condition violated Mr. Perry’s constitutional rights to DATE FILED: April 22, 2021 8:59 AM CASE NUMBER: 2020CV122 EXHIBIT A Case 1:21-cv-02306-RM-KLM Document 27-1 Filed 10/01/21 USDC Colorado Page 1 of 12Case 1:21-cv-02306-RM-KLM Document 53-1 Filed 05/13/22 USDC Colorado Page 1 of 12 procedural due process.” Opening Brief at 4. Second, “[d]id the Trial Court violate Mr. Perry’s right to present a defense when it prohibited Mr. Perry from presenting evidence that the officers who issued Mr. Perry an exclusionary order violated criminal statute 18- 9-109 by issuing the exclusionary order.” Id. The Appellee argues that Appellant did not preserve the unconstitutional as applied argument for this appeal and that C.R.S. 18-9-109 is inapplicable to Appellant because he did not meet the definition of a protected person under the statute. II. Analysis a. Did Appellant Preserve the Unconstitutional as Applied Issue for this Appeal? As a threshold issue, the Court must determine whether the first issue raised by Appellant was preserved for appeal. It is uncontroverted that if an issue is not raised in the lower court, then generally, the Appellant cannot raise that issue for the first time on appeal. “To preserve an issue for appeal, a defendant must alert the trial court to the particular issue.” People v. Cordova, 293 P.3d 114, 120 (Colo. App. 2011) citing People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006). This requirement exists because the judge generally must rely upon research done and issues raised by the parties when issues are presented. Id. citing Novak v. Craven, 195 P.3d 1115, 1120 (Colo. App. 2008). Interestingly, the Court in Cordova stated that “giving the judge the wrong reason for a request is usually equivalent to giving the judge no reason at all.” Cordova at 120 quoting Danco, Inc. EXHIBIT A Case 1:21-cv-02306-RM-KLM Document 27-1 Filed 10/01/21 USDC Colorado Page 2 of 12Case 1:21-cv-02306-RM-KLM Document 53-1 Filed 05/13/22 USDC Colorado Page 2 of 12 v. Wal-Mart Stores, Inc. 178 P.3d 8, 15 (1st Cir. 1999). The Court in Cordova further states that if the wrong grounds for the request are stated that is tantamount to lacking the specificity needed to preserve the matter for appeal. Id. citing Novak at 1120. Stated more generally, to “preserve an issue for appeal, a party's objection or request must be specific enough to (1) draw the court's attention to the asserted error, Martinez v. People, 344 P.3d 862, 868 (Colo. 2015); (2) provide the court with a meaningful opportunity to focus on the issue, People v. Coughlin, 304 P.3d 575, 582 (Colo. App. 2011); and (3) prevent or correct the error, People v. Moore, 226 P.3d 1076, 1082 (Colo. App. 2009).” Answer Brief at 17-18. Appellant argues that he preserved this issue in two separate places during the trial process. The first is in his Motion to Dismiss with Prejudice filed on July 2, 2019. Appellant states on page 1 of that motion “the trespass citation is challenged as unconstitutional as applied.” Appellant then makes two arguments in this regard. He first argues that he is an invitee under C.R.S. 18-9-109 and thus the police violated the law in trespassing him from campus. The Court finds that this is not a Constitutional argument at all. There is a cursory argument that the statute is unconstitutional as applied because Appellant was an invitee. This is a statutory issue that the Court will address below, but not a constitutional argument. The Court therefore finds that the Motion to Dismiss was insufficient to preserve this issue on appeal. The second argument in the motion is one of due process. Appellant states that he is denied due process in the motion then proceeds to lay out all the process that is available to him. Motion to Dismiss at 3-4. The remainder of the argument in the motions EXHIBIT A Case 1:21-cv-02306-RM-KLM Document 27-1 Filed 10/01/21 USDC Colorado Page 3 of 12Case 1:21-cv-02306-RM-KLM Document 53-1 Filed 05/13/22 USDC Colorado Page 3 of 12 consists of application of C.R.S. 18-9-109 which again, will be addressed below. This argument is truly developed on appeal for the first time. The Court notes that this argument for dismissal was again raised by a Motion to Dismiss for Lack of Jurisdiction filed July 31, 2019. The trial court denied that motion stating in part, “the movant is claiming to be an entity other than the Defendant. This is a criminal case and one authorized by Power of Attorney cannot act on behalf of a defendant.” Order Denying Motion (August 2, 2019). The Court notes that almost all of Appellants arguments in the trial court were couched in constitutionalist and sovereign citizen language. 1 The Court of Appeals in Colorado has held that arguments generally made by individuals with similar mindsets as the Appellant are “patently frivolous and without merit.” People v. Drew, 250 P.3d 761 (Colo. App. 2010) citing Russell v. United States, 969 F.Supp. 24, 25 (W.D.Mich.1997). The Court finds that the unconstitutional as applied arguments were raised within such patently frivolous and meritless language as to deem the issue not preserved pursuant to the logic the Appellate Court applied in Cordova. Next, Appellant argues that he raised the issue orally in a motion to dismiss on July 2, 2019. In that transcript it is clear that Appellant makes a cursory statement about the motion to dismiss, but makes no clear argument about the constitutionality of the statute as applied. The Court finds that this was also insufficient to preserve the issue on appeal. 1 The Court notes that this type of language and legal argument is generally nonsensical and meaningless. The Appellant’s motions and arguments in the trial court were no exception. EXHIBIT A Case 1:21-cv-02306-RM-KLM Document 27-1 Filed 10/01/21 USDC Colorado Page 4 of 12Case 1:21-cv-02306-RM-KLM Document 53-1 Filed 05/13/22 USDC Colorado Page 4 of 12 In his Reply, Appellant argues that the trial court’s not making a thorough record on the constitutionality of the statute as applied should not be held against him. However, this Court finds that the record was not made because the issue was never properly raised by Appellant. The Court finds that the issue of the statute being unconstitutional as applied to Appellant was not preserved for appeal. Cursory statements made are insufficient to preserve the issue and Appellant engage in nothing more than cursory statements in the middle of arguing constitutionalist/sovereign citizen nonsense. b. If the Issue was Preserved for Appeal, Appellant’s Unconstitutional as Applied Argument is Without Merit. The Court reviews a county court’s finding of a statute’s constitutionality de novo. People v. Graves, 368 P.3d 317, 322 (Colo. 2016), People v. Dewitt, 275 P.3d 728, 731 (Colo. App. 2011). Statutes are presumed constitutional. People v. Hickman, 988 P.2d 628, 634 (Colo. 1999). “This presumption is rooted in the doctrine of separation of powers and in the judiciary’s respect for the roles of the legislature and the executive in the enactment of laws.” Graves, 368 P.3d at 322 (citing City of Greenwood Vill. V. Petitioners for Proposed City of Centennial, 3 P.3d 427, 440) (Colo. 2000). Courts “do not lightly declare a statute unconstitutional.” Higgs v. Western Landscaping & Sprinkler Sys., Inc., 804 P.2d 161, 165 (Colo. 1991). The act of “declaring a statute unconstitutional is one of the gravest duties impressed upon the courts.” City of Greenwood Vill., 3 P.3d at 440 (citing Higgs, 804 P.2d at 165). EXHIBIT A Case 1:21-cv-02306-RM-KLM Document 27-1 Filed 10/01/21 USDC Colorado Page 5 of 12Case 1:21-cv-02306-RM-KLM Document 53-1 Filed 05/13/22 USDC Colorado Page 5 of 12 “To declare an act of the legislature unconstitutional is always a delicate duty, and one which courts do not feel authorized to perform, unless the conflict between the law and the constitution is clear and unmistakable.” People v. Goddard, 8 Colo. 432, 437, 7 P. 301, 304 (1885). Generally, a party challenging the constitutionality of a statute must do so beyond a reasonable doubt. People v. Hickman, 988 P.2d 628, 634 (Colo.1999), Board of Educ. v. Booth, 984 P.2d 639, 650 (Colo.1999). Appellant argues that he was denied due process in his motion to dismiss. However, within the motion he goes on to describe all the due process he is provided. Motion to Dismiss at 2. The order attached to the Motion lays out the appeals process. Under the “Procedures” section of the order it states: The Subject shall, upon written request to the University President’s Chief of Staff, be entitled to a hearing on the propriety of such Order, before a committee comprised of three persons appointed by the President’s Chief of Staff (the “Committee”). Such request shall be filed with the President’s Chief of Staff within seven university business days after the Order is hand- delivered, sent by email, or received by certified mail to the Subject. The hearing shall be held by such Committee within ten university business days after the filing of the request, upon reasonable notice to the Subject of the opportunity to be heard, as further set forth herein. The Order remains in full force and effect during the hearing and any subsequent appeal process. The Committee shall provide the following processes and protections to the Subject: EXHIBIT A Case 1:21-cv-02306-RM-KLM Document 27-1 Filed 10/01/21 USDC Colorado Page 6 of 12Case 1:21-cv-02306-RM-KLM Document 53-1 Filed 05/13/22 USDC Colorado Page 6 of 12 1. The Subject shall have the right to file a written objection to the Exclusionary Order for consideration by the Committee, no later than one business day prior to the date set for the hearing; 2. The Subject shall have the right to present relevant testimony, including the testimony of one or more witnesses, during the hearing (subject to reasonable limitations on time and manner of presentation, as determined by the Committee); 3. The Subject shall have the right to be accompanied by an advisor of the Subject’s choice. The advisor may, but need not be, an attorney. The advisor shall be limited to counseling the Subject during the hearing, shall not act as a representative or advocate, and may not otherwise participate directly in the hearing. Disruptions during the hearing will not be permitted. In addition, the university may have advisors present, including university counsel; 4. Unless otherwise ordered by the Committee, acting in its sole discretion, the hearing shall be conducted by telephone. 5. There shall be no discovery process in connection with the hearing. However, any pertinent records, exhibits and written statements that either the Subject or the university’s representative would like the Committee to consider, as well as a list of any witnesses who may be called, must be provided to the Committee and to the opposing party at least one business day in advance of the hearing. All such information shall be provided to the university at the following address: Office of the General Counsel, 01 Administration Building, Fort Collins, CO 80523-0006, or electronically to an email address provided by the Office of the General Counsel prior to the hearing. 6. The rules of evidence will not apply in such hearing. Hearsay may be received and considered in light of whatever indicia of reliability are present. EXHIBIT A Case 1:21-cv-02306-RM-KLM Document 27-1 Filed 10/01/21 USDC Colorado Page 7 of 12Case 1:21-cv-02306-RM-KLM Document 53-1 Filed 05/13/22 USDC Colorado Page 7 of 12 Exclusion Order attached to Motion to Dismiss. The Order further provides a process for an appeal of the decision. That section states: Any decision of the Committee that is adverse to the Subject may be appealed within seven university business days after notice of the decision is provided to the Subject via hand delivery, email, or certified mail. The appeal shall be made in writing to the President’s Chief of Staff. The university’s representative, who is the Chief of Police or the Chief’s designee, may submit a written response to the appeal. The Chief of Staff’s decision on the appeal shall be final. Exclusion Order attached to Motion to Dismiss While it is clear that Appellant does not agree with nor like the process provided by the University, his displeasure does not a constitutional challenge make. The Court finds that the process for a hearing an appeal provides sufficient due process such that the exclusionary order and the University’s ability to exclude Appellant under C.R.S. 18- 4-504(1) is not unconstitutional as applied. c. Did the Trial Court violate Mr. Perry’s right to present a defense when it prohibited Mr. Perry from presenting evidence that the officers who issued Mr. Perry an exclusionary order violated criminal statute 18-9- 109 by issuing the exclusionary order? Appellant argues that he was deprived of the ability to present a defense when the trial court excluding evidence that the officers committed an offense under C.R.S. 18-9- 109(1) when they excluded him from the University. The trial court at the pretrial conference stated that Appellant would not be allowed to educate the jury as to federal law or Appellant’s interpretation of the law. In EXHIBIT A Case 1:21-cv-02306-RM-KLM Document 27-1 Filed 10/01/21 USDC Colorado Page 8 of 12Case 1:21-cv-02306-RM-KLM Document 53-1 Filed 05/13/22 USDC Colorado Page 8 of 12 the transcript, the trial court finds that Appellants argument as to C.R.S. 18-9-109 was a misstatement of the law. Transcript 12/11/19, 13-14. The trial court further found that the argument again relied upon Appellants belief that he was an invitee under the statute at issue and this analysis was not relevant, however, he would make a ruling at the trial. Id. The trial court ultimately would not allow the evidence or argument as it was not relevant to an issue before the finder of fact. C.R.S. § 18-9-109(1) states, “[n]o person shall, on or near the premises or facilities of any education institution, willfully deny to students, school officials, employees, and invitees: (a) [l]awful freedom of movement on the premises; (b) [l]awful use of the property or facilities of the institution; (c) [t]he right of lawful ingress and egress to the institution’s physical facilities.” Appellant’s argument seems to hinge on his presumption that he was an invitee and therefore C.R.S. § 18-9-109(1) creates a right for him to be on the campus of CSU. On appeal this Court does not need to reach the merits of Appellant’s claim, but only asks if the exclusion of such evidence by the trial court was in error. The standard of review for a trial court’s determination on relevancy of evidence is abuse of discretion. “Rulings on the relevancy of evidence are within the sound discretion of the trial court and will not be disturbed on review absent an abuse of discretion.” In re L.F., 121 P.3d 267, 271 (Colo. App. 2005) citing KN Energy, Inc. v. Great W. Sugar Co., 698 P.2d 769 (Colo. 1985). The trial court has wide latitude in determining relevancy and its limits. People v. Carter, 402 P.3d 480 (Colo. App. 2015). A trial court’s ruling should only be overturned if the reviewing court finds that the decision was manifestly arbitrary, unreasonable, or unfair. Dunlap v. People, 173 P.3d EXHIBIT A Case 1:21-cv-02306-RM-KLM Document 27-1 Filed 10/01/21 USDC Colorado Page 9 of 12Case 1:21-cv-02306-RM-KLM Document 53-1 Filed 05/13/22 USDC Colorado Page 9 of 12 1054, 1094 (Colo.2007). A trial court can also abuse its discretion if it misconstrues or misapplies the law. People v. Sieck, 351 P.3d 502, 504 (Colo. App. 2014). The Court finds that the trail court did not abuse its discretion in precluding the evidence at issue. The Court finds that Appellant did not provide any evidence that his behavior was permitted as he was not an invitee under the statute. Trial Transcript 12/18/19 at 13-15. The Court finds that the trial court’s analysis on the issue of whether Appellant could present an argument under the statute was reasoned and correct. The Court thus finds that the trial court did not abuse its discretion in precluding the evidence and argument of the Appellant. Appellant further argued a quasi-mistake of law defense on the morning of trial. Id. This issue while not directly made on appeal was somewhat subsumed into the argument made by Appellant that he was denied his defense. The Court reviews de novo whether an appellant was rightly denied a mistake of law defense. People v. Gutierrez-Vite, 411 P.3d 119, 122 (Colo.App. 2014). Generally, questions of law will be reviewed de novo and an appellate court only disturbs findings of fact if they are clearly erroneous. Lawry v. Palm, 192 P.3d 550, 558 (Colo.App. 2008). De novo review is non deferential, meaning the reviewing court may give no deference to the lower court’s decision. Under the common law, mistake of law was not a defense to a criminal offense. E.g., Ostrosky v. Alaska, 913 F.2d 590, 595 (9th Cir. 1990). However, Colorado statutes have carved out a slim exception for mistakes of law. C.R.S. § 18-1-504(2) allows for a mistake of law to negate criminal culpability if a defendant’s actions are permitted by “(a) a EXHIBIT A Case 1:21-cv-02306-RM-KLM Document 27-1 Filed 10/01/21 USDC Colorado Page 10 of 12Case 1:21-cv-02306-RM-KLM Document 53-1 Filed 05/13/22 USDC Colorado Page 10 of 12 statute or ordinance binding in this state; (b) an administrative regulation, order, or grant of permission[; or] (c) an official written interpretation of a statute[.]” Here appellant argues that he relied on C.R.S. § 18-9-109. The Court finds that a statute that makes a type of conduct illegal does not by inverse logic grant a right on another person. For Appellant’s mistake of law argument to apply, he would still have to qualify as an “invitee.” That term is not defined in the specific statute, but is defined elsewhere in the statutes, specifically in C.R.S. § 13-21-115(5)(a). While that statute deals specifically with premises liability, the Court can look for guidance on the meaning of terms within other sections of the statute and by giving the term its ordinary meaning. Board of County Com’rs of County of Rio Blanco v. ExxonMobil Oil Corp., 192 P.3d 582 (2008). C.R.S. § 13-21- 115(4) defines invitee as “a person who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner’s express or implied representation that the public is requested, expected, or intended to enter or remain.” This definition closely tracks the common-law definition of an invitee as “one who comes upon the premises of another to transact business in which the parties are mutually interested.” Husser v. Sch. Dist. No. 11 in El Paso Cty., 159 Colo. 590, 594, 413 P.2d 906, 909 (1966), see also Restatement (Second) of Torts § 332(2) (1965) (“A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.”) Nothing in C.R.S. § 13-21-115(5)(a) or in the common law of the State of Colorado creates an absolute right for an invitee to remain or prohibits a landowner from revoking EXHIBIT A Case 1:21-cv-02306-RM-KLM Document 27-1 Filed 10/01/21 USDC Colorado Page 11 of 12Case 1:21-cv-02306-RM-KLM Document 53-1 Filed 05/13/22 USDC Colorado Page 11 of 12 an invitation. In the common non-legal usage of the term invitee, Appellant was not an invitee as no one invited him to CSU. Under the statutory and common-law definitions, Appellant had no business with CSU and there is no representation that the public is requested, expected, or intended to enter an remain on CSU campus for any conceivable purpose. Further, to the extent there is an invitation, Appellant’s invitation was revoked when he was served the exclusionary order. Therefore, under any interpretation of the term, once Appellant was served the trespass citation, he was not an invitee. See Martin v. Union Pac. R. Co., 186 P.3d 61, 69 (Colo. App. 2007), rev'd on other grounds, 209 P.3d 185 (Colo. 2009). Mistake of law is not an appropriate defense when the interpret ation upon which appellant relies defies logic and reason as it did in this case. The trial court did not err in preventing Appellant from arguing a mistake of law defense to the jury. III. ORDER The Court Orders that Robert Lawrence Perry’s conviction is AFFIRMED. SO ORDERED: April 22, 2021 BY THE COURT: ________________________ Daniel McDonald District Court Judge EXHIBIT A Case 1:21-cv-02306-RM-KLM Document 27-1 Filed 10/01/21 USDC Colorado Page 12 of 12Case 1:21-cv-02306-RM-KLM Document 53-1 Filed 05/13/22 USDC Colorado Page 12 of 12