Montrose - Daily Press

Katharhynn Heidelberg

Daily Press News Editor

MONTROSE — James Witten’s attorneys offered a spirited argument against sending their client to prison, saying the only offense he’d committed was possessing a firework he’d taken from a “free box” in Telluride.

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The judge, however, said something else during sentencing Monday: he found it “difficult to believe.”

Witten, 41, was arrested last November on suspicion of child abuse, attempted manufacture of meth, possession of meth, possession of explosive or incendiary parts, possession of a weapon by a previous offender and controlling property for unlawful manufacture of a controlled substance.

His attorneys said from the beginning of the case the charges were untenable and Witten wound up pleading guilty only to felony-four possession of an incendiary device and possession of a schedule II controlled substance as a class-six felony.

A Delta/Montrose Drug Task Force investigation into the alleged activities of a woman who was renting a room from Witten led to a search warrant at his residence on East Miami last Oct. 14. In an affidavit, agents reported finding several firearms and an explosive device that was later linked to Witten, as well as tubing, a bottle of iodine, measuring cups and a bottle of ammonia and a small pile of coal.

His roommate, Rebecca Cole, eventually pleaded guilty to possession of one gram or less of a schedule II controlled substance. She was sentenced to two years of Community Corrections May 25, according to court records.

Monday, Chief Deputy District Attorney Myrl Serra asked for a considerably harsher sentence for Witten — a total of seven and a half years in prison for the current case and for a concurrent prison term on the revocation of a deferred sentence in a San Miguel County case.

“The defendant was using drugs, had the items to make meth and an explosive device,” Serra said. He further said Tuesday the device was a blasting cap with a fuse in it.

He sought 18 months on Witten’s admission to the possession of drugs, to be served consecutively with a six-year sentence for possessing an incendiary device. The San Miguel County case, also a plea to felony-6 possession, merited an 18-month concurrent sentence, he argued.

But defense attorneys Dan Hotsenpiller and Stephan Schweissing disagreed, arguing there was little evidence to link Witten with drugs and saying the items found had legitimate household uses.

Hotsenpiller said Witten had only pleaded guilty to what he’d actually done — possessing an incendiary device — and had accepted a plea deal only because his risk at trial was “substantial.”

“This is not a meth-making case,” Hotsenpiller said. “There’s no statement anywhere of his intent to manufacture drugs. ...The case is about one large firework, which is what he pleaded guilty to. This is an isolated incident.”

Both Witten and a co-worker, Johnny Wood, testified during the sentencing hearing. Wood said the charges against Witten “didn’t make sense” and that he and Witten had found fireworks in a “free box” in Telluride. These were the only explosives he’d ever seen Witten possess, he said.

“He was a bright, upstanding guy,” Wood said.

While on the stand, Witten denied drug involvement. He also said the firearms found had been stored in a safe, with the exception of one gun reportedly found under his mattress. Witten said a previous attorney told him to keep the guns in a safe and that he’d “spaced” the one beneath his mattress. He also said he kept the coal found in his basement for use in his barbecue.

“I’m not the meth-making criminal they’re making me out to be,” he said.

But Serra attacked the idea that a “bright guy” would suddenly forget he had a gun under his mattress and also dismissed the notion that Witten’s attorney was somehow responsible for the other firearms in his possession.

“You admit to having weapons, but it’s your attorney’s fault?” he said. “Didn’t you read your own probation conditions?”

Hotsenpiller and Schweissing said Witten was probation eligible.

“Punish him appropriately for what the case is about and what he pleaded guilty to,” Hotsenipiller said.

“A 7-and-a-half year Department of Correction sentence is just inappropriate,” Schweissing added. “The law can be draconian at times.”

District Judge Dennis Friedrich didn’t impose quite that lengthy of a sentence, but he didn’t agree to probation either. He said Wood’s testimony concerning Witten’s intelligence made the claims that Witten had “spaced” having a gun “difficult to believe.” He also found difficult to believe arguments that the coal was for the barbecue and the firework was found in a free box.

“This is not an item that is mass-produced,” Friedrich said. “It’s something totally different. The things I’m hearing are difficult to believe.”

He then sentenced Witten to five years in DOC for possessing the device, plus 18 months on his drug possession plea. These are to be served consecutively, along with a concurrent sentence of 18 months for his San Miguel County case, putting the total at 6-and-a-half years.

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