Boothe v. People

814 P.2d 372, 15 Brief Times Rptr. 957, 1991 Colo. LEXIS 430, 1991 WL 123097
CourtSupreme Court of Colorado
DecidedJuly 9, 1991
Docket90SC377
StatusPublished
Cited by11 cases

This text of 814 P.2d 372 (Boothe v. People) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boothe v. People, 814 P.2d 372, 15 Brief Times Rptr. 957, 1991 Colo. LEXIS 430, 1991 WL 123097 (Colo. 1991).

Opinions

Justice VOLLACK

delivered the Opinion of the Court.

The defendant, Michael Bryan Boothe, was convicted in the Larimer County District Court of sexual assault on a thirteen-year-old female, J.C., in violation of section 18-3-405, 8B C.R.S. (1986). The court of appeals affirmed the conviction in People v. Boothe, No. 87CA0796 (Colo.App. Apr. 19, 1990) (an unpublished opinion), rejecting the defendant’s contention that the trial court erred by failing to respond adequately to a question posed by the jury during its deliberations. We granted certiorari to review the decision of the court of appeals, and now affirm.

I.

The evidence presented at trial established the following facts. At approximately 6:30 p.m. on January 8, 1987, the defendant, who was twenty-one years old, and his seventeen-year-old male cousin, L.C., met three teenage females, all under fifteen years of age, in a department store parking lot. One of the females, J.C., was L.C.’s girlfriend at that time. The defendant, L.C., and the females discussed various plans for the evening and finally agreed to purchase some liquor and then “party” in a hotel room. Using L.C.’s car, the group drove to a liquor store where the defendant purchased a case of beer. They then proceeded to the Rosebud Motel, where they rented a room for the evening. The testimony at trial varied as to what transpired in the motel room.

One of the females, R.M., testified that J.C. had sexual intercourse with the defendant once and with L.C. several times. R.M. denied having sexual intercourse with the defendant or L.C. that evening. The second female, T.S., testified that she saw the defendant in bed with J.C., but she could not tell if they had sexual intercourse. T.S. also testified that neither she nor L.C. had sexual intercourse with anyone the entire night. J.C. testified that she had sexual intercourse with the defendant once, but that she did not have sexual intercourse with L.C. that evening. She also testified that both T.S. and R.M. had sexual intercourse with L.C. The defendant admitted that he spent the night in the motel room and slept in the same bed with J.C., but denied having sexual contact with any of the females. The defendant testified that L.C. engaged in sexual intercourse with all three females.

The prosecution charged the defendant with sexual assault on a child based on his alleged sexual contact with J.C., but elected not to charge the defendant with complicity related to any crimes L.C. may have committed. L.C. was returned to California as a juvenile escapee and was not charged in this case. Accordingly, the jury was not given an instruction on complicity. The trial court instructed the jury that the crime of sexual assault on a child consisted of “knowingly subjecting another, not the defendant’s spouse, to any sexual contact, when the other person was less than fifteen years of age and when the defendant was at least four years older than that person.” “Sexual contact” was defined as “knowingly touching of [sic] the victim’s intimate parts by the actor, or of the actor’s intimate parts by the victim.” “Intimate parts” was defined as “the external genitalia or the perineum or the anus or the pubes of any person.”

During its deliberations, the jury sent a note to the judge asking, “Can one be [374]*374judged guilty by association?” The judge contacted the prosecutor and defense counsel by telephone and informed them of the contents of the note. Both counsel were asked if they had any suggestions. According to the judge’s affidavit,1 the judge suggested that the appropriate response “may well be to simply advise the jury to read the instructions,” and the prosecutor and defense counsel agreed. The judge responded to the jury’s question by stating, “Please read the instructions.”

The jury returned a guilty verdict and the defendant was sentenced to a prison term of five years. In affirming the defendant’s conviction, the court of appeals distinguished, on two grounds, this court’s decision in Leonardo v. People, 728 P.2d 1252 (Colo.1986), in which we held that the trial court erred by failing to obtain the defendant’s presence during proceedings to determine an appropriate response to the jury’s question and by directing the jury to reread the instructions. The court of appeals’ first basis of distinction was that the requirements of Leonardo were not implicated because the jury’s question about guilt by association was not an issue in this case. Second, unlike Leonardo, defense counsel was consulted and concurred in the court’s response to the jury’s question. The court of appeals concluded that the judge’s response did not amount to plain error because it was not an incorrect statement of the law.

II.

The defendant argues that the jury’s question concerning complicity indicated that the jury did not understand a matter of law central to the determination of the defendant’s guilt or innocence. The defendant contends that the trial court committed reversible error by not further instructing the jury that the defendant could not be guilty by association.

In Leonardo v. People, 728 P.2d 1252 (Colo.1986), the defendant, Leonardo, was charged with theft by receiving and conspiracy to commit theft by receiving. During its deliberations, the jury sent the judge a note asking, “Is Knowing or Believing in instruction Number 6 The Same as Having a Suspicion of?” The judge, without consulting counsel for either side or informing Leonardo, responded to the jury’s question by directing them to reread the instructions. In his appeal to this court, Leonardo contended that the trial court had committed two errors in its response to the jury’s question: first, that the trial court’s response to the jury’s question was inadequate; second, that the trial court failed to consult counsel or the defendant before deciding upon the appropriate reply to the jury’s question.

In Leonardo, we applied Standard 15-4.-3(a), ABA Standards for Criminal Justice (2d ed. 1980),2 in determining when a trial court was required to provide the jury with additional instructions in response to a question. We held that the trial court com[375]*375mitted prejudicial error by directing the jury back to the original instructions when the jury’s confusion related to a matter of law central to the guilt or innocence of the defendant and none of the exceptions listed in Standard 15-4.3(a) applied. Prejudicial error was also found with regard to the trial court’s failure to obtain the presence of defense counsel to permit defendant’s counsel an opportunity to be heard before the judge responded to the jury’s question. We held that it was “constitutional error for a trial judge to respond to an inquiry from a jury without first making reasonable efforts to obtain the presence of the defendant’s counsel.” Leonardo, 728 P.2d at 1257.

In People v. Alexis, 806 P.2d 929 (Colo. 1991), we reviewed an issue similar to the one presented in Leonardo. In Alexis, the prosecutor and defense counsel entered into a stipulation regarding a witness’s statement. At the conclusion of the trial, the jury was given instruction No. 19, which explained the stipulation.3

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Boothe v. People
814 P.2d 372 (Supreme Court of Colorado, 1991)

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Bluebook (online)
814 P.2d 372, 15 Brief Times Rptr. 957, 1991 Colo. LEXIS 430, 1991 WL 123097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boothe-v-people-colo-1991.