COLORADO COURT OF APPEALS                                     2016COA109


Court of Appeals No. 15CA0682
Adams County District Court No. 14CR1195
Honorable John E. Popovich, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Demetre Cardell Boulden,

Defendant-Appellant.


                       JUDGMENT VACATED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division VI
                         Opinion by JUDGE MILLER
                       Furman and Navarro, JJ., concur

                           Announced July 14, 2016


Cynthia H. Coffman, Attorney General, Molly E. McNab, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Sarah Quinn, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Demetre Cardell Boulden, appeals the trial court’s

 entry of judgment of conviction upon a jury verdict finding him

 guilty of driving under restraint. We conclude that under People v.

 Ellison, 14 P.3d 1034 (Colo. 2000), the mere mailing of the notice of

 revocation is not sufficient to establish the knowledge element of

 the offense of driving under restraint. We therefore vacate the

 judgment and sentence and remand with directions.

                          I.    Background

¶2    A police officer pulled defendant over for driving a car with a

 broken headlight. When the officer checked with dispatch on the

 license plate number of the car, he learned that the car had been

 reported as stolen. Defendant’s driving record indicated that his

 driver’s license had been suspended seven months before he was

 pulled over.

¶3    Defendant was charged with second degree aggravated motor

 vehicle theft and driving under restraint. Following a jury trial, he

 was convicted of driving under restraint and acquitted of motor

 vehicle theft.




                                   1
                  II.    Sufficiency of the Evidence

¶4    Defendant contends that there was insufficient evidence to

 find defendant guilty of driving under restraint. We agree.

                        A.   Standard of Review

¶5    The People contend that defendant did not preserve this

 argument and that we should accordingly apply plain error review.

 In People v. McCoy, 2015 COA 76M, ¶ 6, a division of this court

 concluded that sufficiency of the evidence claims are not subject to

 plain error review. We agree. In any event, defendant moved for

 judgment of acquittal at the close of the prosecution’s case-in-chief

 based on insufficiency of the evidence of defendant’s mental state.

 The trial court denied the motion, expressly finding that there was

 sufficient evidence of defendant’s knowledge for purposes of the

 driving under restraint charge. Where a defendant raises an issue

 sufficiently to give the trial court an opportunity to rule on the

 claim raised on appeal, we conclude the claim is sufficiently

 preserved. See People v. Rhea, 2014 COA 60, ¶ 55. Accordingly,

 plain error review does not apply.

¶6    The evidence is sufficient if, after viewing the evidence in the

 light most favorable to the prosecution, a rational jury could have


                                      2
 found the essential elements of the crime beyond a reasonable

 doubt. Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010).

                                B.         Law

¶7    Driving under restraint occurs when “[a]ny person who drives

 a motor vehicle or off-highway vehicle upon any highway of this

 state with knowledge that the person’s license or privilege to drive,

 either as a resident or a nonresident, is under restraint for any

 reason other than conviction of DUI, DUI per se, DWAI, or UDD is

 guilty of a misdemeanor.” § 42-2-138(1)(a), C.R.S. 2015 (emphasis

 added). “Restraint” includes revocation or suspension of the

 driver’s license. § 42-2-138(4)(b).

¶8    Knowledge is an essential element of the crime of driving

 under restraint. See Jolly v. People, 742 P.2d 891, 896 (Colo.

 1987); People v. Parga, 964 P.2d 571, 572 (Colo. App. 1998). In

 Jolly, the supreme court held that knowledge is an element in all

 criminal cases in which notice of a final agency action depriving a

 licensee of the driving privilege is an essential element of the

 charge, even if, as was then the case, the statute does not

 specifically mention knowledge. Jolly, 742 P.2d at 895; see also

 People v. Lesh, 668 P.2d 1362, 1365 (Colo. 1983).


                                       3
¶9     Several years later, the General Assembly expressly added the

  knowledge element to the driving under restraint statute, as quoted

  above. Ch. 207, sec. 3, § 42-2-130(1)(a), 1993 Colo. Sess. Laws

  938. It also included a definition of knowledge applicable to driving

  under a restraint that encompasses both actual and constructive

  knowledge. § 42-2-130(4)(a), 1993 Colo. Sess. Laws at 939; see also

  Parga, 964 P.2d at 574. That definition is currently codified in

  section 42-2-138(4)(a) and provides as follows:

            “Knowledge” means actual knowledge of any
            restraint from whatever source or knowledge of
            circumstances sufficient to cause a reasonable
            person to be aware that such person’s license
            or privilege to drive was under restraint.
            “Knowledge” does not mean knowledge of a
            particular restraint or knowledge of the
            duration of restraint.

¶ 10   The second part of the definition of knowledge, while referring

  to the use of an objective reasonable person standard, still “requires

  that the particular defendant possess knowledge of those

  circumstances that would trigger a reasonable person to believe his

  license was under restraint.” Ellison, 14 P.3d at 1036-37 (emphasis

  added). The defendant must be “actually aware of specific

  circumstances.” Id. at 1037. In Ellison, the supreme court



                                    4
  explained that while a defendant who saw mail arrive from the

  Department of Motor Vehicles (DMV), but refused to open it, might

  have actual knowledge of circumstances that would lead a

  reasonable person to believe his license was under restraint, a

  defendant who inadvertently threw away mail from the DMV

  without seeing it could not have the same actual knowledge. Id. at

  1037, 1039. While some states make driving under restraint a

  strict liability crime, Colorado’s “knowledge” requirement limits

  punishment to “those who are subjectively aware of circumstances

  that would lead a responsible driver to realize his license was under

  restraint and thus not continue to drive.” Id. at 1039.

¶ 11   The prosecution admitted into evidence a certified copy of

  defendant’s Colorado driver history. The history showed that

  defendant’s driver’s license had been suspended effective September

  9, 2013, and had not been reinstated since that time. Attached to

  the driver history is a page entitled “Verification of Mailing of

  Notices/Orders,” which includes a list of names and addresses.

  The following statement appears at the top of the page: “by checking

  off the name and initialing the statement, the mail room verifies

  that these notices/orders were deposited in the U.S. Mail First


                                      5
  Class.” Defendant’s name and address are listed on the page, and a

  handwritten check mark appears next to the entry with his name.

  A handwritten initial and date appears at the top of the page.

¶ 12   In closing argument, the prosecutor addressed the knowledge

  requirement of driving under restraint:

             If you remember back in jury selection, we
             talked about a driver’s license, what you need
             to do to have a valid driver’s license. And we
             talked about insurance. Everybody knows
             that they need insurance on their vehicle and
             that if their insurance lapses they will not have
             a valid driver’s license anymore. Demetre
             Boulden knew his driver’s license was under
             restraint.

  In rebuttal closing, the prosecutor reiterated, “you can infer that

  notice being sent to [defendant’s last known] address, a reasonable

  person should have known his license was suspended.”

¶ 13   In an administrative driver’s license revocation proceeding, it

  is sufficient for the DMV to mail by first-class mail a notice of

  revocation to the driver’s last known address on record with the

  DMV, which would then be deemed received by the driver three

  days after being sent. §§ 42-2-119(2), -126(6)(b)(II), C.R.S. 2015.

  No provision in the Motor Vehicle Code creates a comparable

  presumption for purposes of criminal proceedings. See Well


                                     6
  Augmentation Subdistrict of Cent. Colo. Water Conservancy Dist. v.

  City of Aurora, 221 P.3d 399, 419 (Colo. 2009) (“When the General

  Assembly includes a provision in one section of a statute, but

  excludes the same provision from another section, we presume that

  the General Assembly did so purposefully.”). Ellison clarifies that

  mere proof of mailing is not sufficient to prove beyond a reasonable

  doubt a defendant’s knowledge of restraint of his driver’s privilege.

  14 P.3d at 1039. Here, the prosecution presented no evidence on

  the issue of knowledge beyond the driving record and the mailing

  certification.

¶ 14   The People cite People v. Espinoza, 195 P.3d 1122, 1128 (Colo.

  App. 2008), in support of the proposition that a driving record is

  sufficient evidence that a defendant had knowledge that his license

  had been revoked. We note that in Espinoza the driving record in

  question included proofs of service notifying the defendant it was

  unlawful for him to operate a motor vehicle in Colorado and stating

  that he was a habitual traffic offender. Id. The defendant had been

  previously convicted of multiple traffic offenses, as evidenced by his

  habitual traffic offender status. Id.; see also § 42-2-202, C.R.S.




                                    7
  2015. Upon being stopped by police, defendant fled by foot.

  Espinoza, 195 P.3d at 1128.

¶ 15    Thus, in Espinoza the record established that (1) the

  defendant had previously been convicted of multiple traffic offenses

  (he would necessarily have known of those convictions) and (2) he

  fled the scene when apprehended, a fact from which the jury could

  have inferred defendant’s consciousness of guilt that he drove with

  knowledge of his license revocation. See People v. Gee, 2015 COA

  151, ¶ 26 (evidence of flight may be relevant to show consciousness

  of guilt).

¶ 16    By contrast, however, the only evidence in the record of this

  case bearing on the driving under restraint charge is (1) the driving

  record, indicating only that defendant’s license had been suspended

  on September 9, 2013, and not reinstated; and (2) the verification of

  mailing, showing that a single notice of that suspension had been

  mailed to his last known address on file. The prosecution presented

  no evidence that defendant had ever seen or was aware of either

  document or of the suspension of his license.

¶ 17    Accordingly, even viewing all the evidence in the light most

  favorable to the prosecution, we conclude that no reasonable jury


                                    8
  could have found that the prosecution proved the knowledge

  element of driving under restraint.

                      III.         Remaining Issues

¶ 18   In light of our conclusion that there was insufficient evidence

  to sustain the conviction for driving under restraint, we need not

  address defendant’s evidentiary arguments.

                             IV.     Conclusion

¶ 19   Defendant’s conviction and sentence for driving under

  restraint are vacated, and the trial court is directed on remand to

  enter a judgment of acquittal on that charge.

       JUDGE FURMAN and JUDGE NAVARRO concur.




                                        9
