HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry v. State of Colorado, et al - 053.2 - Exhibit 2District 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:
CITY OF FORT COLLINS
Case No: 2019CV205
Courtroom: 4B
ORDER AFFIRMING CONVICTION
This matter comes before the Court on Appellant’s appeal from his municipal
court conviction for trespass stemming from his alleged disregard of an exclusionary
order issued by Colorado State University Police. The Court finds as follows:
I.Procedural History
Appellant, Robert Lawrence Perry, was cited on July 12, 2019 with Trespassing
under Fort Collins Municipal Code § 17-40(a). Appellant was issued the citation by
Officer Derek Smith of the Colorado State University (“CSU”) Police Department.
Appellant was arraigned by the Fort Collins Municipal Court on August 29, 2019.
The matter proceeded to a jury trial on November 8, 2019. Appellant was found
guilty of trespass by a jury of six after a one-day trial and sentenced on December 3, 2019.
DATE FILED: March 31, 2020 9:43 AM
CASE NUMBER: 2019CV205
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Appellant filed his Notice of Appeal and Designation of Record on November 20,
2019. While that notice was technically filed prematurely, the Court has nonetheless
accepted the filing. Appellant filed an Amended Notice of Appeal and Designation of
Record on December 4, 2019, and his Opening Brief on January 30, 2020.
The record was received by the Court on February 11, 2020. Appellee’s Answering
Brief was filed on February 20, 2020 and Appellant’s Reply Brief was filed on March 4,
2020.
II. Issues Presented
Appellant raises five issues on appeal. First, the trial court erred by granting the
Prosecution’s motion in limine excluding evidence of the illegality of the exclusionary
order; second, the trial court erred by preventing Appellant from arguing a mistake of
law defense to the jury; third, the trial court erred by not allowing jury instructions on
C.R.S. § 18-9-109(1), fourth, there was insufficient evidence to support a guilty verdict;
and fifth, the conviction should be overturned due to prosecutorial and judicial
misconduct. The Court will address each of those issues in turn.
III. Analysis
(a) Motion in Limine
The Court excluded evidence of the alleged illegality of the exclusionary order
issued to Appellant specifically and exclusionary orders generally. Appellant argued
several different legal theories for this proposition, but mostly his argument hinged on
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the fact that C.R.S. § 18-9-109(1) creates a criminal offense for excluding certain people
from the facilities of educational intuitions.
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
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).
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The Court finds that the trial court did not abuse its discretion in granting the
prosecution’s motion in limine. The Court rightly found that the only issues to be decided
by the jury were whether Appellant had been issued an exclusionary order, had gone
back to the premises, that he was the person who committed the offense, and it was done
at a date and time certain. Trial Transcript at 31. The statutory construction argument that
appellant was attempting to present to the jury would have added elements to be proven
by the Prosecution that are not contained within the Fort Collins Municipal Code. The
Prosecutor would have been forced to prove to a jury, beyond a reasonable doubt, both
the constitutionality of the underlying statute and that C.R.S. § 18-9-109(1) does not create
an absolute right for Appellant to remain on CSU campus.
To the extent Appellant argues that exclusionary orders violate the Colorado State
Constitution, he did not properly plead that issue as required by C.R.S. § 16-9-501.
Appellant was repeatedly informed of the procedural requirements to argue a statute’s
constitutionality, but failed to notify the Attorney General. Appellee’s Answering Brief at p.
3.
The Court finds that the trial court had good reason to grant the motion in limine.
The findings and ruling of the court were not manifestly arbitrary, unreasonable, or
unfair. To the contrary, the trial court’s decision was well reasoned and logical. The Court
finds that under an abuse of discretion standard the trial court’s decision to grant the
motion in limine should not be disturbed.
(b) Mistake of Law Defense
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As part of its granting the motion in limine, the trial court also addressed whether
appellant could argue to the jury a mistake of law defense. However, the trial court
reserved ruling on that matter until after all the evidence had been presented. Trial
Transcript at 31-41, 286-287.
Appellant’s argument revolves around his interpretation of C.R.S. § 18-9-109 cited
above and his having not been fully prosecuted for trespassing on previously issued
orders. Appellant admits that he was served with an exclusionary order, but stated in his
opening brief,
Appellant was first issued an ‘exclusionary order’ form by
CSU police about three and a half years ago; then, Appellant
requested administrative officials to rescind the campus
police ‘order’, arguing ‘exclusionary orders’ violate the
constitution and federal and state laws against
discrimination; in response, Appellant received an email
stating that the ‘exclusionary order’ was ‘lifted’. Appellant
presumed that CSU General Counsel attorneys had notified
administrative officials that the ‘exclusionary order’ policy
was not lawful and should be discontinued. Appellant’s
Opening Brief at 3.
The Court notes Appellant’s immense logical leap in assuming that, because his
order was lifted, he had therefore prevailed on the merits of his argument that
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exclusionary orders are unconstitutional. The Court further finds Appellant’s reliance on
a prosecutor not fully prosecuting a trespass citation as a basis for his conclusions is also
misplaced.
Appellant further argues that C.R.S. § 18-9-109 creates a law violation for
removing certain categories of persons from a college campus and thus his exclusionary
order is illegal. The Appellee points out in their Answering Brief that this is circular logic
that could create several perverse outcomes.
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
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.
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However, even taking appellant’s argument to its extreme, 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
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
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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 interpretation 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.
(c) Jury Instructions Related to C.R.S. 18-9-109(1)
Appellant next argues that the trial court erred in not allowing the jury to receive jury
instructions on C.R.S. § 18-9-109(1). This argument is related to both the alleged illegality
of exclusionary orders and Appellant’s mistake of law defense as outlined above. The
Court reviews rulings on jury instruction de novo. E.g., Riley v. People, 266 P.3d 1089, 1092-
93 (Colo. 2011).
The Court notes that it is well established law that Court is to instruct the jury on
matters of law and the jury’s role is to determine facts. The Court should instruct the jury
on matters of law if there is sufficient evidence to support such instruction. People v.
Garcia, 28 P.3d 340 (Colo. 2001).
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At the end of the trial, there was insufficient evidence to support instructing the jury
in the manner Appellant wished. This was because the trial court granted the motion in
limine which this Court has upheld above. Because the evidence was correctly excluded,
there was no reason to so instruct the jury.
Further, a jury as a finder of fact should not be put in a position to pass judgement on
the constitutionality of a statute. In effect, appellant wished to make a plea to the jury to
invalidate a city ordinance. That is an impermissible use of the jury and was properly
denied. Powell v. Colorado Pub. Utilities Comm'n, 956 P.2d 608, 613 (Colo. 1998) (“Courts
are required to decide questions of law.”).
The Court has also reviewed Appellant’s proposed jury instructions on this matter
and find that they are rambling, fragmented, and overly confusing. They are so disjointed
that this Court does not believe they could have been rewritten in any meaningful way
to cure them appropriately. The trial court could have denied them on that basis alone.
After de novo review of the trial court’s denial of Appellant’s jury instruction, the Court
finds that they were properly denied and should not have gone to the ju ry, and that the
jury was instructed on applicable law.
(d) Insufficiency of Evidence.
Next, appellant argues that there was insufficient evidence to support the guilty
verdict of the jury. The Court reviews claims of insufficiency of evidence de novo. McCoy
v. People, 442 P.3d 379, 382 (Colo. 2019).
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The elements of trespass were provided to the jury in Instruction #8. That instruction
states,
The elements of the crime of trespass are:
1. That appellant,
2. in the city of Fort Collins at or about the date and
place charged,
3. knowingly,
4. entered or remained unlawfully,
5. in or upon property,
6. whether publicly or privately owned.
Appellant on the morning of trial stipulated that he was issued the original
exclusionary order. Trial Transcript at 15. Specifically, he stipulated that he was served
with the exclusionary order on May 17, 2019. Id. Officer Derek Smith testified under oath
that he saw appellant on campus and issued him the exclusionary order on May 17, 2019.
Id. at 135. He stated that he knew appellant personally from previous contacts. Id. He
further identified appellant on the record. Id. Officer Smith further testified that he saw
appellant on campus on July 12, 2019 and issued him the trespass citation at issue in the
trial. Id. at 138. This evidence alone would be sufficient to support the guilty verdict.
However, Appellant testified and admitted to every element necessary to support
a conviction. Id. at 242-251. On cross examination the following interaction was had,
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Q So, Mr. Perry, you don’t deny that on May 17th of 2019,
Officer Derek Smith served you with an exclusionary order?
A No.
Q And you don’t deny that on July 12th of 2019, you were
on CSU property at 9:00 p.m.?
A No, I don’t deny that.
Q You were what?
A I do not deny that.
Q Okay. And you knew on July 12th, 2019, that that
exclusionary order had not been lifted by CSU; isn’t that
correct?
A Because I made a motion – I – I requested them lift it
and they never responded and they never held a hearing.
Q Mr. Perry, that’s not what I’m asking. On July 12th of
2019, you were aware that that exclusionary order had not
been lifted by anyone at CSU; is that correct?
A Right. Yeah. Yeah.
Id. at 270-271.
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After de novo review of the record for sufficiency of evidence to support a
conviction for criminal trespass, the Court finds that there is ample evidence to support
this conviction.
(e) Prosecutorial and Judicial Misconduct
There is a two-step analysis in which the Court must engage in to assess
prosecutorial misconduct. “First, it must determine whether the prosecutor’s
questionable conduct was improper based on the totality of the circumstances and,
second, whether such actions warrant reversal according to the proper standard of
review.” Wend v. People, 235 P.3d 1089, 1089 (Colo. 2010).
Appellant’s claim fails on the first prong. He makes no specific allegation in his
brief and the Court can find no misconduct in the record. Therefore, the Court finds there
was no prosecutorial misconduct.
The allegations of judicial misconduct are similarly pled. They are vague at best.
First, it appears that Appellant is arguing that there is some connection between the city
and the trial court and CSU. Second, there is an argument made that the trial judge did
not take a proper oath and therefore any order issued is void.
The first argument is so poorly laid out that this Court cannot make much sense
of it. As such, the Court finds that there was not improper conduct alleged. The second
argument fails as it is untethered to law or reason.
Therefore, the Court finds that there was no prosecutorial or judicial misconduct.
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IV. Order
The Court Orders that Robert Lawrence Perry’s conviction is AFFIRMED.
SO ORDERED this 31st day of March, 2020
BY THE COURT
____________________________
Daniel McDonald
District Court Judge
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