22CA1749 Peo v Wilson 12-19-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1749 Arapahoe County District Court No. 20CR1149 Honorable Darren L. Vahle, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael David Wilson,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE J. JONES Lipinsky and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 19, 2024
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Elsa Archambault, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Michael David Wilson, appeals the judgment of
conviction entered on a jury verdict finding him guilty of the lesser
nonincluded offense of accessory to crime. We affirm.
I. Background
¶2 The People charged Wilson with attempted first degree murder,
first degree assault, and second degree kidnapping. The evidence at
trial showed that Ryonelle Austin told Wilson to drive the victim to a
remote location, pull over, and get the victim out of the car. Wilson
did so, and Austin shot the victim several times in the thoracic
area, both legs, and the back. Wilson and Austin drove away. The
victim managed to summon aid and survived his injuries.
¶3 At Wilson’s trial, the prosecution advanced a theory that
Wilson was guilty of the charged offenses as a complicitor, and that
Wilson and Austin had planned to kill the victim.
¶4 Defense counsel submitted a lesser nonincluded offense
instruction for the offense of accessory to crime, consisting of an
elemental instruction and two interrogatories. The first
interrogatory related to first degree assault and the second
interrogatory related to attempted first degree murder. The court
1 asked defense counsel, “Are you seeking to add accessory as a
lesser non-included?” Defense counsel responded, “Your Honor, we
are.”
¶5 Defense counsel said that he wanted to give the jury only the
first degree assault interrogatory because “we believe that there is a
rational basis for the jury to convict on Mr. Wilson being an
accessory to first degree assault and not necessarily to attempt[ed]
first degree murder.” But, counsel said, he gave the court both
interrogatories “to be complete depending on how the Court rules.”
¶6 The court queried defense counsel on “what would be the
rational basis by which [Wilson] would be acquitted of accessory to
criminal attempt to commit first degree murder but be convicted
of . . . accessory to first degree assault?” Defense counsel
responded that the basis was Austin’s lack of intent “to murder [the
victim], but to cause him serious bodily injury” instead.
¶7 The prosecutor argued that there was not “a rational basis to
acquit [o]n accessory to [attempted] first degree murder and only
convict of accessory to first degree assault.” Rather, he submitted,
the court should give both of defense counsel’s interrogatories and
2 “allow the jury to make that determination themselves.” The
prosecutor asserted that accessory to first degree assault alone did
not fit the facts of the case:
[H]onestly, the facts of the attempt to commit murder in the first degree and the assault — I mean, the attempt was to murder [the victim]. The completed act in a very real sense was the assault in the first degree. They are so closely tied that I don’t know how a jury can discriminate between the two of those.
¶8 The court agreed to add accessory to crime as a lesser
nonincluded offense. The court then noted that the interrogatory
related to accessory to attempted first degree murder in “the current
[Colorado Jury Instructions (COLJI)] says, Did the Defendant know
that the person had committed, been charged with, or been
convicted of the crime of criminal attempt in the first degree
murder?” The court said to defense counsel, it “looks like you’ve
changed the language a little bit from the current COLJI” because
the tendered interrogatory referred to whether “the [d]efendant
kn[e]w the person was suspected of or wanted for.” Defense
counsel agreed that his proposed language must have come from an
3 older version of the COLJI, but that he was “fine with the current
language.”
¶9 The court asked defense counsel to submit “the verdict
question form with the exact language from the current COLJI,” and
defense counsel said, “I will do that.” The court then said, “So I’ll
give [the accessory instruction] with the question.” Defense counsel
did not lodge further objection or seek further clarification as to
which question the court was referring.
¶ 10 Immediately before closing arguments, the court went through
the final instructions — one-by-one — with the parties. The court
confirmed with defense counsel that he was asking for “accessory
as a lesser non-included.” Defense counsel replied, “Yes.” The
court then sought to confirm that it had the appropriate “verdict
form and a question form for accessory to crime.” Defense counsel
confirmed that he had no objection to the form, content, or order of
the instructions. The verdict form for accessory to crime included
only an interrogatory as to attempted first degree murder.
4 ¶ 11 The jury acquitted Wilson of the charged crimes but convicted
him of the lesser nonincluded offense of accessory to crime and
answered the special interrogatory in the affirmative.
II. Discussion
¶ 12 Wilson contends that the trial court constructively amended
the information, in violation of Crim. P. 7(e), by instructing the jury
on the lesser nonincluded offense of accessory to attempted first
degree murder without his consent. Because we conclude that
Wilson’s counsel consented to the addition of this offense, we
perceive no error.
¶ 13 In Colorado, a criminal defendant is entitled to have the jury
presented with the option of convicting him of a lesser nonincluded
offense, so long as there is a rational evidentiary basis to
simultaneously acquit on the charged offense and convict on the
lesser. People v. Naranjo, 2017 CO 87, ¶ 15. Neither the
prosecution nor the trial court may seek to add such a lesser
nonincluded offense. See Crim. P. 7(e); People v. Martinez, 2024
COA 34, ¶ 32; Moore v. People, 925 P.2d 264, 269 (Colo. 1996).
This is so because a defendant is entitled to notice of the charges he
5 faces and an adequate opportunity to prepare a defense. Martinez,
¶ 32. Therefore, Crim. P. 7(e) prohibits the substantive amendment
of a criminal information once trial has begun. However, a defense-
requested lesser nonincluded instruction is tantamount to adding a
charge against the defendant with his consent. Naranjo, ¶ 17.
¶ 14 Contrary to Wilson’s assertions on appeal, the record reveals
that his counsel consented to the challenged lesser nonincluded
charge. Defense counsel tendered the accessory instruction and
accompanying special interrogatories. Though counsel expressed a
preference that the court only instruct the jury on accessory to first
degree assault, he noted that he was submitting both
interrogatories “to be complete depending on how the Court rules.”
Free access — add to your briefcase to read the full text and ask questions with AI
22CA1749 Peo v Wilson 12-19-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1749 Arapahoe County District Court No. 20CR1149 Honorable Darren L. Vahle, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael David Wilson,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE J. JONES Lipinsky and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 19, 2024
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Elsa Archambault, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Michael David Wilson, appeals the judgment of
conviction entered on a jury verdict finding him guilty of the lesser
nonincluded offense of accessory to crime. We affirm.
I. Background
¶2 The People charged Wilson with attempted first degree murder,
first degree assault, and second degree kidnapping. The evidence at
trial showed that Ryonelle Austin told Wilson to drive the victim to a
remote location, pull over, and get the victim out of the car. Wilson
did so, and Austin shot the victim several times in the thoracic
area, both legs, and the back. Wilson and Austin drove away. The
victim managed to summon aid and survived his injuries.
¶3 At Wilson’s trial, the prosecution advanced a theory that
Wilson was guilty of the charged offenses as a complicitor, and that
Wilson and Austin had planned to kill the victim.
¶4 Defense counsel submitted a lesser nonincluded offense
instruction for the offense of accessory to crime, consisting of an
elemental instruction and two interrogatories. The first
interrogatory related to first degree assault and the second
interrogatory related to attempted first degree murder. The court
1 asked defense counsel, “Are you seeking to add accessory as a
lesser non-included?” Defense counsel responded, “Your Honor, we
are.”
¶5 Defense counsel said that he wanted to give the jury only the
first degree assault interrogatory because “we believe that there is a
rational basis for the jury to convict on Mr. Wilson being an
accessory to first degree assault and not necessarily to attempt[ed]
first degree murder.” But, counsel said, he gave the court both
interrogatories “to be complete depending on how the Court rules.”
¶6 The court queried defense counsel on “what would be the
rational basis by which [Wilson] would be acquitted of accessory to
criminal attempt to commit first degree murder but be convicted
of . . . accessory to first degree assault?” Defense counsel
responded that the basis was Austin’s lack of intent “to murder [the
victim], but to cause him serious bodily injury” instead.
¶7 The prosecutor argued that there was not “a rational basis to
acquit [o]n accessory to [attempted] first degree murder and only
convict of accessory to first degree assault.” Rather, he submitted,
the court should give both of defense counsel’s interrogatories and
2 “allow the jury to make that determination themselves.” The
prosecutor asserted that accessory to first degree assault alone did
not fit the facts of the case:
[H]onestly, the facts of the attempt to commit murder in the first degree and the assault — I mean, the attempt was to murder [the victim]. The completed act in a very real sense was the assault in the first degree. They are so closely tied that I don’t know how a jury can discriminate between the two of those.
¶8 The court agreed to add accessory to crime as a lesser
nonincluded offense. The court then noted that the interrogatory
related to accessory to attempted first degree murder in “the current
[Colorado Jury Instructions (COLJI)] says, Did the Defendant know
that the person had committed, been charged with, or been
convicted of the crime of criminal attempt in the first degree
murder?” The court said to defense counsel, it “looks like you’ve
changed the language a little bit from the current COLJI” because
the tendered interrogatory referred to whether “the [d]efendant
kn[e]w the person was suspected of or wanted for.” Defense
counsel agreed that his proposed language must have come from an
3 older version of the COLJI, but that he was “fine with the current
language.”
¶9 The court asked defense counsel to submit “the verdict
question form with the exact language from the current COLJI,” and
defense counsel said, “I will do that.” The court then said, “So I’ll
give [the accessory instruction] with the question.” Defense counsel
did not lodge further objection or seek further clarification as to
which question the court was referring.
¶ 10 Immediately before closing arguments, the court went through
the final instructions — one-by-one — with the parties. The court
confirmed with defense counsel that he was asking for “accessory
as a lesser non-included.” Defense counsel replied, “Yes.” The
court then sought to confirm that it had the appropriate “verdict
form and a question form for accessory to crime.” Defense counsel
confirmed that he had no objection to the form, content, or order of
the instructions. The verdict form for accessory to crime included
only an interrogatory as to attempted first degree murder.
4 ¶ 11 The jury acquitted Wilson of the charged crimes but convicted
him of the lesser nonincluded offense of accessory to crime and
answered the special interrogatory in the affirmative.
II. Discussion
¶ 12 Wilson contends that the trial court constructively amended
the information, in violation of Crim. P. 7(e), by instructing the jury
on the lesser nonincluded offense of accessory to attempted first
degree murder without his consent. Because we conclude that
Wilson’s counsel consented to the addition of this offense, we
perceive no error.
¶ 13 In Colorado, a criminal defendant is entitled to have the jury
presented with the option of convicting him of a lesser nonincluded
offense, so long as there is a rational evidentiary basis to
simultaneously acquit on the charged offense and convict on the
lesser. People v. Naranjo, 2017 CO 87, ¶ 15. Neither the
prosecution nor the trial court may seek to add such a lesser
nonincluded offense. See Crim. P. 7(e); People v. Martinez, 2024
COA 34, ¶ 32; Moore v. People, 925 P.2d 264, 269 (Colo. 1996).
This is so because a defendant is entitled to notice of the charges he
5 faces and an adequate opportunity to prepare a defense. Martinez,
¶ 32. Therefore, Crim. P. 7(e) prohibits the substantive amendment
of a criminal information once trial has begun. However, a defense-
requested lesser nonincluded instruction is tantamount to adding a
charge against the defendant with his consent. Naranjo, ¶ 17.
¶ 14 Contrary to Wilson’s assertions on appeal, the record reveals
that his counsel consented to the challenged lesser nonincluded
charge. Defense counsel tendered the accessory instruction and
accompanying special interrogatories. Though counsel expressed a
preference that the court only instruct the jury on accessory to first
degree assault, he noted that he was submitting both
interrogatories “to be complete depending on how the Court rules.”
(Emphasis added.) We agree with the People that providing the
accessory instruction with an attempted first degree murder
interrogatory (and specifically saying that it was presented
depending on how the court ruled) constituted consent to the
addition of the challenged offense. Had Wilson’s counsel not
consented to adding accessory to attempted first degree murder, he
could have simply withdrawn his accessory instruction request. We
6 also agree with the People that Wilson’s counsel’s consent was
confirmed when, while going through the final instruction packet
with the parties — which included the interrogatory for attempted
first degree murder (prepared by defense counsel) — the court
specifically asked defense counsel if he was “asking for the
accessory as a lesser non-included,” to which counsel responded,
“yes.”
¶ 15 To the extent Wilson asserts that it was the prosecutor who
requested that the jury be instructed on the crime of accessory to
attempted first degree murder, we disagree. True, the prosecutor
asserted that there was a rational basis to submit such an
instruction, but it was defense counsel who tendered the special
interrogatories, “to be complete depending on how the Court
rule[d].” Likewise, we reject Wilson’s argument that he tendered
both interrogatories “only as a courtesy to the court.” Regardless of
the subjective intent of his submission, defense counsel opened the
door to the court’s decision by tendering both interrogatories. And
he later affirmatively agreed that he wished to proceed with the one
special interrogatory related to attempted first degree murder when
7 he just as easily could have sought to withdraw his lesser
nonincluded instructional request. Arko v. People, 183 P.3d 555,
558 (Colo. 2008) (a defense request for a lesser nonincluded offense
is a tactical and strategic choice by defense counsel).1
¶ 16 Accordingly, we reject Wilson’s claim that the trial court
constructively amended the information by instructing the jury on
the lesser nonincluded offense of accessory to attempted first degree
murder without his consent.
III. Disposition
¶ 17 The judgment is affirmed.
JUDGE LIPINSKY and JUDGE SULLIVAN concur.
1 In his reply brief, Wilson concedes that his attorney “acquiesced”
to so instructing the jury. Though he appears to assert that counsel had no choice but to do so, the choice was defense counsel’s entirely. 8