Background
Anthony Atencio was convicted of first degree burglary, first degree assault by strangulation, and second degree criminal tampering after the victim initially reported that he forced entry into her apartment and severely assaulted and strangled her. At trial, however, the victim said she did not remember the incident and suggested officers had fabricated the account.
The prosecution introduced evidence that the victim had told an investigator she feared testifying because another inmate relayed that her imprisoned son would “pay” if she said anything in court. After the jury reached its verdict, Atencio did not return to court despite having been told to stay close; he was later apprehended more than eighteen months after a warrant issued. The district court imposed concurrent seventeen-year sentences for burglary and assault.
The Court’s Holding
The Colorado Court of Appeals affirmed the convictions. The district court could infer that Atencio voluntarily waived his right to be present for the verdict because he had been told to remain nearby, did not return or communicate for ninety minutes after the jury announced it had reached a verdict, and later remained a fugitive. Alternatively, any error in receiving the already-completed verdict was harmless beyond a reasonable doubt.
The court also held that the testimony concerning the relayed threat was properly admitted to explain the victim’s recantation and assess her credibility, rather than to prove the threat was true. The prosecutor’s arguments that the victim testified dishonestly, was afraid, and was a “perfect victim” were grounded in the evidence and context, not reversible misconduct. But the court reversed the seventeen-year burglary sentence: without a jury finding supporting the crime-of-violence enhancer, first degree burglary carried a presumptive range of four to twelve years.
Key Takeaways
- A defendant may waive the right to be present for a verdict by voluntarily failing to return after trial has begun.
- A relayed threat may be admissible to show its effect on a recanting witness’s state of mind and credibility.
- A sentence above the presumptive range cannot rest on a crime-of-violence enhancement absent the required jury finding.
Why It Matters
The decision confirms that courts may complete the verdict process when the record supports an inference that a defendant deliberately absented himself, particularly where the verdict was already reached and the jury was polled.
It also underscores the sentencing limit on judicial factfinding: even where a crime-of-violence enhancer was charged, a court may not impose the enhanced range without the statutorily required jury finding.