People v. Cushinberry

Colorado Court of Appeals

People v. Cushinberry

855 P.2d 18, 17 Brief Times Rptr. 12, 1992 Colo. App. LEXIS 468, 1992 WL 387065

CourtColorado Court of Appeals

DecidedDecember 31, 1992

DocketNo. 91CA0300

StatusPublished

Cited by4 cases

This text of 855 P.2d 18 (People v. Cushinberry) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Cushinberry, 855 P.2d 18, 17 Brief Times Rptr. 12, 1992 Colo. App. LEXIS 468, 1992 WL 387065 (Colo. Ct. App. 1992).

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Opinion

Opinion by

Judge BRIGGS.

Defendant, Paul L. Cushinberry, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree murder. We affirm.

Defendant’s sole contention on appeal is that the trial court erred in refusing to instruct the jury on the affirmative defense set out in § 18-1-704.5, C.R.S. (1986 Repl.Vol. 8B), the “make-my-day” statute. We find no error.

There must be evidence in the record to support an instruction embodying a defendant’s theory of the case. See People v. Dillon, 655 P.2d 841 (Colo.1982). Thus, for defendant to be entitled to an instruction on the affirmative defense defined in § 18-1-704.5, he was required to present some credible evidence that (1) another person made an unlawful entry into the defendant’s dwelling; (2) the defendant had a reasonable belief that such other person had committed a crime in the dwelling in addition to the uninvited entry, or was committing or intended to commit a crime against a person or property in addition to the uninvited entry; (3) the defendant reasonably believed that such other person might use physical force, no matter how slight, against any occupant of the dwelling; and (4) the defendant used force against the person who actually made the unlawful entry into the dwelling. People v. Guenther, 740 P.2d 971 (Colo.1987).

[19]*19The trial court concluded the evidence did not support giving an instruction on the “make-my-day” affirmative defense. We agree.

The defendant was sitting on a window sill in a stairwell landing in his apartment building when the victim confronted him demanding money. An altercation ensued during which the defendant shot the decedent.

“Dwelling” is defined as a building which is used, intended to be used, or usually used by a person for habitation. Section 18-1-901(3)(g), C.R.S. (1986 Repl.Vol. 8B). The stairwell was not part of the defendant’s apartment, but was a common area used by other tenants and their guests. We conclude that, for purposes of the “make-my-day” statute, the common areas of an apartment building do not constitute a dwelling. See People v. Marshall, 196 Colo. 381, 586 P.2d 41 (1978); §§ 18-4-502 and 18-4-503, C.R.S. (1986 Repl.Vol. 8B); cf People in Interest of D.G.P., 194 Colo. 238, 570 P.2d 1293 (1977). The court therefore did not err in rejecting defendant’s tendered instruction.

Judgment affirmed.

NEY and DAVIDSON, JJ., concur.

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Opinion by

Judge BRIGGS.

Defendant, Paul L. Cushinberry, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree murder. We affirm.

Defendant’s sole contention on appeal is that the trial court erred in refusing to instruct the jury on the affirmative defense set out in § 18-1-704.5, C.R.S. (1986 Repl.Vol. 8B), the “make-my-day” statute. We find no error.

There must be evidence in the record to support an instruction embodying a defendant’s theory of the case. See People v. Dillon, 655 P.2d 841 (Colo.1982). Thus, for defendant to be entitled to an instruction on the affirmative defense defined in § 18-1-704.5, he was required to present some credible evidence that (1) another person made an unlawful entry into the defendant’s dwelling; (2) the defendant had a reasonable belief that such other person had committed a crime in the dwelling in addition to the uninvited entry, or was committing or intended to commit a crime against a person or property in addition to the uninvited entry; (3) the defendant reasonably believed that such other person might use physical force, no matter how slight, against any occupant of the dwelling; and (4) the defendant used force against the person who actually made the unlawful entry into the dwelling. People v. Guenther, 740 P.2d 971 (Colo.1987).

[19]*19The trial court concluded the evidence did not support giving an instruction on the “make-my-day” affirmative defense. We agree.

The defendant was sitting on a window sill in a stairwell landing in his apartment building when the victim confronted him demanding money. An altercation ensued during which the defendant shot the decedent.

“Dwelling” is defined as a building which is used, intended to be used, or usually used by a person for habitation. Section 18-1-901(3)(g), C.R.S. (1986 Repl.Vol. 8B). The stairwell was not part of the defendant’s apartment, but was a common area used by other tenants and their guests. We conclude that, for purposes of the “make-my-day” statute, the common areas of an apartment building do not constitute a dwelling. See People v. Marshall, 196 Colo. 381, 586 P.2d 41 (1978); §§ 18-4-502 and 18-4-503, C.R.S. (1986 Repl.Vol. 8B); cf People in Interest of D.G.P., 194 Colo. 238, 570 P.2d 1293 (1977). The court therefore did not err in rejecting defendant’s tendered instruction.

Judgment affirmed.

NEY and DAVIDSON, JJ., concur.

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Bluebook (online)

855 P.2d 18, 17 Brief Times Rptr. 12, 1992 Colo. App. LEXIS 468, 1992 WL 387065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cushinberry-coloctapp-1992.

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