Colorado Court of Appeals criminal law decision 8-18-11 People v. Thomeczek

People v. Thomeczek            Res Gestae / Harassment-VRO  and Lesser-includeds / Proportionality

Facts: According to the CofA, Mr. Thomeczek assaulted his ex-wife and pulled her hair in January. The CofA termed it the ‘January incident’ that led to a no contact protection order. Of course, the ex invited Mr. Thomeczek over while the protection order was still in place. The last time, supposedly Mr. Thomeczek went over to the ex’s uninvited. Upon arrival, Mr. Thomeczek entered, criticized the ex’s outfit, and “hit her hard on the buttocks.” (common folk language: he slapped her on the ass). Later, an argument ensued which prompted the ex call the police. When the police arrived, the ex claimed Mr. Thomeczek also hit her on the head with the phone. Unfortunately, Mr. Thomeczek hid in the garage of the ex, and the police found him. The jury convicted Mr. Thomeczek of burglary and the trial court sentenced him to 12 years.

Issue: Whether the ‘January incident’ constituted res gestae?

Held: Yes.

Reasoning: The CofA batted away any suggestion that this evidence fell under the procedural standards of 404(b), and reasoned:

"Evidence of the January incident and the parties' conduct thereafter was, indeed, necessary to a full understanding of why the victim and defendant may have behaved as they did in the charged incident, and was probative of defendant's intent with regard to the burglary and harassment charges. This evidence would have helped the fact finder to understand why the victim might have admitted defendant into the residence despite the protection order; what his intent was when he entered the residence; what his intent was when he hit the victim hard on the buttocks; and why he threw a telephone at her and told her to call the police."

Issue: Whether harassment is a lesser-included offense of violation of a restraining order?

Held: No.

Reasoning: Because the legislature defined harassment as a specific intent crime and violating a restraining order as a general intent crime, harassment is not a lesser-included offense (failed the same elements test). Thus, Mr. Thomeczek’s convictions for both harassment and violation of the restraining order did not violate the Double Jeopardy Clauses.

Issue: Whether 12 years on a burglary, which carries a presumptive range of 4-12, is disproportionate to the crime?

Held: No.

Reasoning: Because the trial court put cogent reasons on the record and sentenced Mr. Thomeczek within the presumptive range, the CofA found no abuse of discretion in the propriety of the sentence. Further, the CofA found no 8^th Amendment violation because Colorado defines burglary as a ‘grave offense’, and the trial court sentenced Thomeczek within the presumptive range.