HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 027.2 - Exhibit 1 OrderDistrict 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
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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.
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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
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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.
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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).
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“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:
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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.
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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
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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
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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
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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
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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
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