The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY August 9, 2018
2018COA115
No. 16CA0875 People v. Joosten — Criminal Law — Jury Instructions — Theory of the Case
This case addresses when a trial court may properly deny a
defendant’s theory of the case instruction and when the wrongful
denial of such an instruction requires reversal.
The division declines to follow People v. Marquez-Lopez, 952
P.2d 788, 791 (Colo. App. 1997), and People v. T.R., 860 P.2d 559,
561 (Colo. App. 1993) to the extent they conclude that elemental
instructions can substitute for a defendant’s proposed theory of the
case instruction. Those holdings conflict with the supreme court’s
decision in People v. Nunez, 841 P.2d 261, 264-65 (Colo. 1992).
Notwithstanding the trial court’s refusal to give a theory of the
case instruction, the division affirms the defendant’s second degree
burglary conviction and directs the correction of the mittimus. COLORADO COURT OF APPEALS 2018COA115
Court of Appeals No. 16CA0875 Adams County District Court No. 13CR3365 Honorable Thomas R. Ensor, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Leonard Joosten,
Defendant-Appellant.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE BERGER Hawthorne and Miller*, JJ., concur
Announced August 9, 2018
Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Karen Mahlman Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2017. I. Introduction and Summary
¶1 This case requires us to address when a trial court may
properly deny a defendant’s theory of the case instruction, and
when the wrongful denial of such an instruction requires reversal.
¶2 A jury convicted Leonard Joosten of second degree burglary,
first degree criminal trespass, one count of third degree assault,
and two counts of class 3 misdemeanor criminal mischief. Joosten
appeals only the burglary conviction.
¶3 The trial court denied Joosten’s tendered theory of the case
instruction regarding the burglary charge, reasoning that the
tendered instruction was nothing more than a denial of the
elements of the charged crime. In view of that conclusion, the trial
court did not work with defense counsel to craft an acceptable
theory of the case instruction.
¶4 The supreme court has repeatedly and unambiguously held
that a criminal defendant is entitled to a theory of the case
instruction. See, e.g., People v. Roman, 2017 CO 70, ¶ 15; People v.
Nunez, 841 P.2d 261, 264-65 (Colo. 1992). None of the exceptions
to that rule were applicable in this case. Nunez, 841 P.2d at 264-
65. Accordingly, the trial court erred when it refused Joosten’s
1 tendered instruction, or alternatively, when it failed to work with
Joosten’s counsel to craft a permissible instruction. Nevertheless,
because the error was harmless, we affirm the second degree
burglary conviction.
¶5 Joosten also claims that the mittimus is incorrect as to the
criminal mischief charges. We agree and direct that the mittimus
be corrected to reflect that Joosten was convicted of class 3
misdemeanor criminal mischief, not class 2 misdemeanor criminal
mischief.
II. Relevant Facts and Procedural History
¶6 The prosecution’s evidence permitted the jury to find the
following facts. Joosten and his girlfriend lived together and were in
an intimate relationship for many years. When the relationship
deteriorated, Joosten’s girlfriend found a roommate. Joosten moved
out of the apartment, but continued to “frequently” spend the night
there. He also continued to keep at least some of his belongings at
the apartment.
¶7 One morning, the roommate heard a knock on the door. As
she looked through the door’s peephole, Joosten kicked down the
door and the door hit her in the face. Joosten entered the
2 apartment and went into his girlfriend’s bedroom. They argued and
the roommate heard a “thud” followed by the girlfriend yelling for
the roommate to call the police. Joosten told the roommate he
would beat her if she called the police.
¶8 The roommate answered a phone call from her boyfriend, and
Joosten left his girlfriend’s room to attempt to grab the roommate’s
phone. During this confrontation, Joosten’s girlfriend fled the
apartment and the roommate’s boyfriend called the police.
¶9 Joosten went back into his girlfriend’s room, where he cut up
her driver’s license and bank card and cut the cords of her hair
dryer and curling iron.
¶ 10 The police arrived shortly thereafter and arrested him.
¶ 11 The prosecution charged Joosten with second degree burglary,
two counts of third degree assault (one involving his girlfriend and
one involving the roommate), and two counts of criminal mischief.
¶ 12 Joosten’s principal defenses to the burglary charge were that
he had a possessory interest in the apartment and that his
girlfriend invited him there. Supporting the invitation defense, the
roommate testified that the day before the events at issue, Joosten’s
girlfriend had offered to wash Joosten’s work clothes and suggested
3 that he pick them up the next morning; but the roommate also
testified that she was not sure whether the girlfriend later revoked
this invitation. The girlfriend testified that she did not remember
extending this invitation to Joosten.
¶ 13 The jury acquitted Joosten of the third degree assault charge
involving the roommate, but convicted him of all the other counts
and of first degree criminal trespass.1 On appeal, he challenges
only his conviction for second degree burglary and the alleged error
in the mittimus relating to the criminal mischief charges.
III. There Was Sufficient Evidence to Convict Joosten of Second Degree Burglary
¶ 14 We first address Joosten’s contention that the evidence was
insufficient to convict him of second degree burglary, because if he
1 On the second day of the trial, over Joosten’s objection, the court granted the prosecution’s motion requesting a jury instruction on first degree criminal trespass as a lesser nonincluded offense of second degree burglary. At sentencing, the court merged the second degree burglary and first degree criminal trespass convictions. Because Joosten did not address the propriety of the court instructing the jury on a lesser nonincluded offense over his objection, we do not address this question. See People v. Skinner, 825 P.2d 1045, 1047 (Colo. App. 1991) (“[A] lesser non-included offense instruction may be given only if the defendant requests it or consents to it.”); see Crim. P. 7(e).
4 is correct, further prosecution may be prohibited by constitutional
prohibitions against double jeopardy. People v. Marciano, 2014
COA 92M-2, ¶ 42.
¶ 15 Joosten contends that the prosecution failed to prove beyond a
reasonable doubt that he (1) relinquished his possessory interest in
the apartment; (2) knew his invitation to enter the apartment was
revoked; and (3) knew his entry was unlawful.
¶ 16 “The due process clauses of the United States and Colorado
Constitutions prohibit the criminal conviction of any person except
on proof of guilt beyond a reasonable doubt.” Kogan v. People, 756
P.2d 945, 950 (Colo. 1988), abrogated on other grounds by Erickson
v. People, 951 P.2d 919 (Colo. 1998). A reviewing court faced with a
sufficiency challenge must determine whether the evidence, when
viewed as a whole and in a light most favorable to the prosecution,
is both substantial and sufficient to support a conclusion by a
reasonable person that the defendant is guilty of the charge beyond
a reasonable doubt. Dempsey v. People, 117 P.3d 800, 807 (Colo.
2005).
¶ 17 In determining whether the evidence is sufficient to sustain a
conviction, we “must give the prosecution the benefit of every
5 reasonable inference that might fairly be drawn from the evidence.”
People v. Duncan, 109 P.3d 1044, 1045-46 (Colo. App. 2004).
Moreover, “the resolution of inconsistent testimony and
determination of the credibility of the witnesses are solely within the
province of the jury.” Id. at 1046.
¶ 18 To support a burglary conviction, a jury must find beyond a
reasonable doubt that the defendant “knowingly [broke] an entrance
into, enter[ed] unlawfully in, or remain[ed] unlawfully after a lawful
or unlawful entry in a building or occupied structure with intent to
commit therein a crime against another person or property.”
§ 18-4-203(1), C.R.S. 2017. “A person ‘enters unlawfully’ or
‘remains unlawfully’ in or upon premises when the person is not
licensed, invited, or otherwise privileged to do so.” § 18-4-201(3),
C.R.S. 2017. “In determining whether the crime of burglary has
been committed, the focus is upon the possessory rights of the
parties[.]” People v. Hollenbeck, 944 P.2d 537, 538 (Colo. App.
1996).
¶ 19 Joosten argues that because he previously lived at the
apartment, still frequently stayed there, and had left some of his
6 possessions there, he maintained a possessory interest in the
premises, precluding a conviction for burglary.
¶ 20 More specifically, relying on Hollenbeck, 944 P.2d at 539,
Joosten argues that he had a possessory interest in the apartment
because there was no evidence that he and his girlfriend had agreed
to live separately and that he understood he had relinquished his
possessory interest. Hollenbeck does not support Joosten’s
position.
¶ 21 In Hollenbeck, a division of this court recognized that an
estranged spouse who had previously shared a residence with the
victim could be convicted of burglarizing the former marital
residence if the victim was in exclusive possession of the residence
at the time of the alleged burglary. Id. The division held that,
absent a restraining order or an order granting one party exclusive
possession of the marital residence, whether one spouse had the
sole possessory interest “depends on whether the evidence shows
that both parties had decided to live separately.” Id.
¶ 22 The Hollenbeck division concluded that there was sufficient
evidence that the defendant had relinquished his possessory
interest because (1) he had left the marital residence and taken
7 most of his belongings; and (2) his wife had changed the locks, filed
for divorce, and told him he was no longer welcome in the
residence. Id. at 539-40.
¶ 23 Contrary to Joosten’s argument, Hollenbeck supports our
conclusion that sufficient evidence supported his burglary
conviction. Although Joosten continued to stay at the apartment
“frequently,” like the defendant in Hollenbeck, he had taken many of
his personal belongings out of the apartment. Id. at 539. The
evidence established that Joosten always knocked before entering
the apartment because he did not have keys to the apartment.2 In
any event, it is undisputed that Joosten gained entry on this
occasion by kicking down the door. “This method of entry is
inconsistent with any kind of permissive entry.” People v. Johnson,
906 P.2d 122, 126 (Colo. 1995). A reasonable juror could easily
infer that Joosten knew he did not have a possessory interest in the
apartment when he forcibly entered it.
2 The roommate testified that Joosten did not have a key to the apartment and always knocked before he entered. The girlfriend testified that she had changed the locks to the apartment but did not remember whether Joosten had keys for the new locks. Joosten did not testify.
8 ¶ 24 Joosten also separately argues that, even if there was
sufficient evidence to prove that he did not have a possessory
interest in the apartment, the evidence demonstrated that his
girlfriend had consented to his entry because she had invited him to
pick up his laundry from the apartment.
¶ 25 But the girlfriend testified that she did not remember
extending this invitation to Joosten. Whether or not there was such
an invitation was for the jury to determine. “[T]he resolution of
inconsistent testimony and determination of the credibility of the
witnesses are solely within the province of the jury.” Duncan, 109
P.3d at 1046.
¶ 26 Lastly, Joosten argues that the evidence was insufficient to
show he acted knowingly. This element requires evidence that
Joosten “subjectively knew that [his] entry into the [apartment] was
unlawful.” Oram v. People, 255 P.3d 1032, 1038 (Colo. 2011). “An
actor’s state of mind is normally not subject to direct proof and
must be inferred from his or her actions and the circumstances
surrounding the occurrence.” People v. Phillips, 219 P.3d 798, 800
(Colo. App. 2009). As noted above, a reasonable juror could infer
that Joosten knew he did not have permission to enter the
9 apartment when he forcibly entered the premises. See Johnson,
906 P.2d at 126.
¶ 27 Accordingly, the evidence was sufficient to sustain Joosten’s
second degree burglary conviction.
IV. Criminal Defendants Have the Right to a Theory of the Case Instruction
A. General Principles
¶ 28 In Nunez, 841 P.2d at 264-65, the Colorado Supreme Court
held that defendants have the right to a theory of the case
instruction. A theory of the case instruction tendered by a
defendant must be given if the record contains any evidence to
support the theory. Id. at 264. “The rationale underlying [this
right] is the belief that it is for the jury and not the court to
determine the truth of the defendant’s theory.” Id. at 264-65. A
trial court has no discretion to refuse a tendered, properly worded
theory of the case instruction if it is supported by any evidence. Id.
¶ 29 There are two exceptions to this rule. A defendant has no
right to a theory of the case instruction that misstates the
applicable law, unduly emphasizes specific facts, or is
argumentative. People v. Smith, 77 P.3d 751, 756 (Colo. App.
10 2003). And a theory of the case instruction may properly be refused
when other instructions adequately convey the defendant’s theory
of the case. Nunez, 841 P.2d at 265.
¶ 30 When a defendant is entitled to a theory of the case
instruction but the instruction tendered is defective in some
manner, the trial court has an affirmative duty to work with defense
counsel to craft an acceptable instruction. Id.
B. Joosten Was Entitled to a Theory of the Case Instruction
¶ 31 Joosten tendered the following theory of the case instruction:
Leonard Joosten contends that he is not guilty of Second Degree Burglary because he entered the apartment under the belief that he was invited in and had a privilege to be at the apartment. He went to an apartment where he stayed at, kept several belongings, and possessed a key to allow him to come and go. Entry into the apartment under these circumstances is not unlawful. Mr. Joosten went to the apartment to get his clothes so that he could go to work, as he had previously agreed to do with [his girlfriend]. If you find that Mr. Joosten entered the apartment under the mistaken belief that he was invited or privileged and/or that he lacked the intent to commit the crimes of Assault in the Third Degree and Criminal Mischief when he entered, you must find Mr. Joosten not guilty of Second Degree Burglary.
11 ¶ 32 The trial court rejected the instruction on the basis that it
“simply denied one of the elements of the crime.” And, presumably
because of that ruling, the court did not work with Joosten’s
defense counsel to craft an acceptable instruction.3
¶ 33 We reject the trial court’s reasoning that the tendered
instruction merely denied the elements of the crime. To the
contrary, we view the tendered instruction as Joosten’s coherent
theory of why he did not commit the crimes charged because he
was invited in or had the privilege to enter the apartment.
Joosten’s theory of the case was that he either had consent to enter
the premises or that he had been invited to do so. The tendered
instruction explains the circumstances underlying Joosten’s theory
of the case. This goes well beyond a simple denial of the elements
3 Because we conclude that the failure to give the tendered theory of the case instruction could not have, under the facts presented, impaired Joosten’s right to a fair trial, we do not address whether a defendant must, in addition to tendering or requesting a theory of the case instruction, also specifically request the trial court to work with him to craft an acceptable theory of the case instruction. Or, whether absent such a request an appellate court reviews only for plain error.
12 of the burglary charge. The elemental instructions did not address
the reasons why Joosten claimed that he was not guilty of burglary.
¶ 34 The Attorney General contends that the court’s rejection of
Joosten’s theory of the case instruction was either proper or
harmless because the instruction was “embodied in other
instructions given by the court.” People v. Tippett, 733 P.2d 1183,
1195 (Colo. 1987); see also People v. Cardenas, 25 P.3d 1258, 1265
(Colo. App. 2000). This argument founders on the fact that the only
instruction given by the court on second degree burglary was the
elemental pattern instruction. “Jury instructions that merely set
forth the elements of the offense and the burden of proof, without
more, do not encompass a theory of defense.” Nunez, 841 P.2d at
266. Thus, Joosten’s theory of the case instruction was not
“embodied in other instructions given by the court.” Tippett, 733
P.2d at 1195.
¶ 35 To the extent People v. Marquez-Lopez, 952 P.2d 788, 791
(Colo. App. 1997), and People in Interest of T.R., 860 P.2d 559, 561
(Colo. App. 1993), hold otherwise and conclude that elemental
instructions that do no more than describe the elements of the
offense can substitute for a defendant’s proposed theory of the case
13 instruction, we decline to follow them because they conflict with the
supreme court’s holding in Nunez, 841 P.2d at 264-65. People v.
Buell, 2017 COA 148, ¶ 17 (a division of the court of appeals is not
bound by the decisions of other divisions) (cert. granted Apr. 23,
2018).
¶ 36 While Joosten was entitled to a theory of the case instruction,
whether the instruction tendered by him was proper in form is a
closer question. However, given the uncontroverted evidence
regarding the manner of Joosten’s entry into the apartment, it is
unnecessary for us to determine whether the tendered instruction
was unacceptable. Moreover, even if the tendered instruction was
unacceptable, so long as it, at least in principle, set forth a valid
theory of the case instruction, the trial court had a duty to work
with counsel to craft an acceptable instruction. See Nunez, 841
P.2d at 265.
¶ 37 The Attorney General also claims that theory of the case
instructions are unnecessary (or the failure to give such an
instruction is harmless) so long as the defendant is permitted to
argue the facts and circumstances that underlie the defendant’s
theory of the case. We reject this argument because it is
14 inconsistent with Nunez, id., which confers a broad right on
criminal defendants.
¶ 38 Although courts may “consider whether defense counsel’s
closing argument fairly represented defendant’s theory to the jury,”
People v. Dore, 997 P.2d 1214, 1222 (Colo. App. 1999), “arguments
of counsel cannot substitute for instructions by the court,” Taylor v.
Kentucky, 436 U.S. 478, 488-89 (1978). See Qwest Servs. Corp. v.
Blood, 252 P.3d 1071, 1088 (Colo. 2011) (holding that courts
presume a jury follows a trial court’s instructions, but a jury may
properly disregard statements made by counsel). Unless and until
the supreme court overrules or modifies Nunez, both this court and
the trial courts must apply Nunez as written. Willhite v. Rodriguez-
Cera, 2012 CO 29, ¶ 9.
C. Reversal is Not Required
¶ 39 While the trial court abused its discretion either in refusing
the tendered instruction or, if the form of the instruction was
defective, in failing to work with Joosten’s defense counsel to craft a
proper theory of the case instruction, that does not end our
analysis. In People v. Novotny, a case decided after Nunez, the
supreme court instructed us that “reversal of a criminal conviction
15 for other than structural error, in the absence of express legislative
mandate or an appropriate case specific, outcome-determinative
analysis, can no longer be sustained.” 2014 CO 18, ¶ 27.
¶ 40 A court’s improper rejection of a theory of the case instruction
is harmless if it does not adversely affect the defendant’s
substantial rights. People v. Garcia, 28 P.3d 340, 344 (Colo. 2001).
Put differently, we must ask whether there is a reasonable
probability that the jury would have found Joosten guilty of second
degree burglary had the error not occurred. Salcedo v. People, 999
P.2d 833, 841 (Colo. 2000).
¶ 41 While we reject the Attorney General’s reasons why the trial
court’s refusal of the tendered instruction (or a reworked
instruction) was harmless, we also must address the quantum and
quality of evidence that negated the theory of defense presented in
Joosten’s tendered instruction. If the evidence was such that no
reasonable juror would have credited the defense asserted in the
instruction, Joosten was not harmed by the court’s refusal to give
the instruction or to work with his counsel to craft an acceptable
instruction. See People v. Klausner, 74 P.3d 421, 424 (Colo. App.
2003). While we have not found any Colorado case law applying
16 Novotny’s outcome-determinative test specifically to the rejection of
a theory of the case instruction, we perceive no reason that such an
error is exempt from Novotny’s holding. ¶ 27.
¶ 42 The tendered theory of the case instruction addressed whether
Joosten knowingly entered the apartment unlawfully, one of the
elements of the crime of burglary. The evidence was undisputed
that Joosten gained entry to the apartment by kicking down the
door. If he had a key to the premises, he did not use it and,
regardless of whether he was previously invited to pick up his
laundry, no person present in the apartment opened the door for
him to give him access. Instead, he used a violent act to gain entry.
¶ 43 This evidence persuades us that no reasonable juror would
have credited the defenses that he entered the apartment under the
mistaken belief that he was invited or privileged to do so and that
he lacked the necessary criminal intent to be convicted of second
degree burglary. As a result, the error did not substantially
influence the verdict or the fairness of the trial proceedings and was
harmless.
17 V. The Court Erred in Sentencing Joosten on Two Counts of Class 2 Misdemeanor Criminal Mischief
¶ 44 Finally, we address Joosten’s contention that the mittimus
incorrectly reflects that the jury convicted him of two counts of
class 2 misdemeanor criminal mischief. The Attorney General
concedes error and we agree.
¶ 45 Although, Joosten did not raise this argument at trial,
“[c]lerical mistakes in judgments, orders, or other parts of the
record and errors in the record arising from oversight or omission
may be corrected by the court at any time.” Crim. P. 36.
¶ 46 Joosten was charged with two counts of class 2 misdemeanor
criminal mischief, but at the jury instruction conference, the court
stated that “if, in fact, the jury finds the defendant guilty of
Criminal Mischief, it would be the lowest class of Criminal Mischief,
which would be the class-three misdemeanor.” Thus, the mittimus
incorrectly reflects that Joosten was convicted of two counts of class
2, rather than class 3, misdemeanor criminal mischief. The
mittimus must be corrected accordingly.
18 VI. Conclusion
¶ 47 The judgment of conviction is affirmed. The case is remanded
for the correction of the mittimus.
JUDGE HAWTHORNE and JUDGE MILLER concur.