People v. LePage

397 P.3d 1074, 2011 WL 544019, 2011 Colo. App. LEXIS 223
CourtColorado Court of Appeals
DecidedFebruary 17, 2011
DocketNo. 09CA0676
StatusPublished
Cited by9 cases

This text of 397 P.3d 1074 (People v. LePage) 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. LePage, 397 P.3d 1074, 2011 WL 544019, 2011 Colo. App. LEXIS 223 (Colo. Ct. App. 2011).

Opinions

Opinion by

Judge TAUBMAN.

Defendant, Tyler N. LePage, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree assault. We affirm.

I, Background

LePage is serving a life sentence in the Sterling Correctional Facility. This case resulted from an incident that occurred there.

In July 2007, Department of Corrections officers at Sterling performed a strip search of LePage on the suspicion that he possessed a prohibited metal implement or tool. The officers handcuffed him, and attached a two-foot long tether to his handcuffs, for the purpose of controlling his movements.

After walking a short distance, LePage turned and head-butted at least one of the officers in the mouth, and kicked another officer before he was subdued. Following this incident, corrections officers found no metal implement on LePage.

LePage was charged with second degree assault. At trial, the court denied defense counsel’s request to include third degree assault as a lesser included offense, but agreed to instruct the jury on the lesser included offense of obstruction of a peace officer. Pri- or to the parties’ closing arguments, the trial judge read aloud fourteen jury instructions. Instructions No. 11 and 12 instructed the jury on the elements of second degree assault. Instruction No. 13 instructed the jury that if it was not satisfied beyond a reasonable doubt that LePage was guilty of second degree assault, it could find him guilty of the lesser offense of obstruction of a peace officer. Instruction No. 14 instructed the jury on the elements of the lesser included offense of obstruction of a peace officer. The trial court explained, “While you may find [Le-Page] not guilty of the crime charged or of the lesser-included offense, you may not find [LePage] guilty of more than one of the following offenses: Second-degree assault or obstruction of a peace officer.” The jury received written copies of these fourteen instructions.

The trial court also advised the jury that it would receive two verdict forms, one reading “Jury Verdict Count 2 assault in the second degree” and the other “Jury Verdict Count 3. Obstruction of a peace officer.”

Following the reading of the jury instructions and the advisement regarding the verdict forms, neither LePage’s attorney nor the prosecutor asked to review the instructions and verdict forms before they were submitted to the jury.

On appeal, LePage contends the court gave the jury a verdict form for second degree assault, but did not give the jury a verdict form for obstruction of a peace officer. Instead, according to LePage, the jury mistakenly received a second verdict form titled “Jury Verdict Count Three, Assault in the Third Degree.”

The jury convicted LePage of second degree assault, and the trial judge later adjudicated him a habitual offender based on his three prior felony convictions.

II. Not Providing Verdict Form to Jury

LePage contends that the trial court committed reversible error when it did not provide the jury with a verdict form for the lesser included offense of obstruction of a peace officer. We disagree.

A. State of the Record

Initially, we reject the People’s contention that LePage has not shown that the jurors did not receive the proper verdict form. According to the People, the record shows only that the verdict form for obstruction of a peace officer was stapled to the tendered, but refused, jury instruction for [1077]*1077third degree assault. -Thus, the People reason, LePage at most has demonstrated an error in stapling the instructions .and verdict form.

In response, LePage asserts that the verdict form for obstruction of a peace officer stapled to the unnumbered jury instruction defining the elements of third degree assault — and apart from the tendered jury instructions and proper verdict form for second degree assault — establishes that the jury did not receive the proper verdict form. We agree with LePage.

It is the obligation of the party asserting error in a judgment to present a record that discloses that error,.for a judgment is presumed to be correct until the contrary affirmatively appears.1 Schuster v. Zwicker, 659 P.2d 687, 690 (Colo.1983). Further, “absent an affirmative showing by the prosecution that the certified record is not correct, we must accept the record on appeal as filed.” People v. Seacrist, 874 P.2d 438, 442 (Colo.App.1993). Here, the record supports LePage’s assertion that the jurors inadvertently did not receive the verdict form for obstruction of a peace officer.

B. “Soft Transition” Language in Jury Instruction No. 13

LePage argues that the trial court’s failure to provide a verdict form for obstruction of a peace .officer rendered meaningless the instructions for that lesser included offense. Because we have no evidence that the jury did not consider whether LePage was guilty of the lesser included offense, we perceive no error.

Colorado is a “soft transition” jurisdiction, in which the jury need not unanimously acquit the defendant of the greater offense before considering the lesser included offenses. People v. Richardson, 184 P.3d 755, 768 (Colo.2008). In contrast, a “hard transition” jurisdiction requires a jury to return final verdicts on greater offenses before returning verdicts on, lesser included offenses. Id. In accordance with the “soft transition” approach, when there is a rational basis for the jury to convict the defendant on a lesser included offense, the trial court’s failure to instruct on that offense constitutes reversible error. People v. Pena, 962 P.2d 285, 287 (Colo.App.1997).

Relying on Pena, LePage asserts that the omission of the proper jury verdict form equated to failing to instruct the jury on the lesser included offense of obstruction of a peace officer. LePage does not dispute that the trial court instructed the jury on the lesser included offense of obstruction of a peace officer. However, he asserts that omission of the correct verdict form rendered the jury incapable of returning a verdict on the .lesser included offense, and that this omission equated to a failure to instruct.the jury on the lesser included offense.

Here, LePage’s argument presumes that the jury did not déliberate on whether Le-Page was'guilty of the lesser included offense of obstruction of a peace officer. However, the record does not show whether the jury considered the lesser included offense.

Further, to the extent that LePage relies on Pena and Richardson to argue that the court erred when it did not instruct the jury on a lesser included offense, such reliance is misplaced for two reasons. First, the jury was instructed, orally and in writing, of the lesser included offense of obstruction of a peace officer. Second, Instruction No. 13 did hot direct the jury to use a “hard transition” approach.

Here, the first sentence of Jury Instruction No.

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Cite This Page — Counsel Stack

Bluebook (online)
397 P.3d 1074, 2011 WL 544019, 2011 Colo. App. LEXIS 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lepage-coloctapp-2011.