People v. Wheeler

772 P.2d 101, 13 Brief Times Rptr. 444, 1989 Colo. LEXIS 173, 1989 WL 35713

• Court: Supreme Court of Colorado
• Decided: April 17, 1989
• Docket: 87SA379
• Status: Published

Opinions

ROVIRA, Justice.

The defendant, Laurie Wheeler, was convicted of criminally negligent homicide as the result of a jury trial. The trial court granted her motion for judgment of acquittal, holding that criminally negligent homicide by a complicitor is not a cognizable crime. On appeal, the People argue that the trial court’s ruling was based on a misunderstanding of the complicity theory of accountability. We agree with the People’s position and hold that the trial court erred in entering the judgment of acquittal.

I.

The facts necessary for an understanding of the issue in this case are not in dispute. Wheeler and her co-defendant, her common-law husband, Mitchell Anderson, lived in a triplex in Colorado Springs. Timothy Bothun, the victim, lived in another apartment in the same triplex. On the evening of September 23, 1986, Wheeler and Anderson left their apartment at about 7:30 p.m., leaving their three children in the care of Michelle Knight. During the evening Bothun and Knight talked about Wheeler. This discussion resulted in Bothun becoming angry at Wheeler.

When Wheeler and Anderson returned home, Anderson drove Knight home. During Anderson’s absence, Wheeler and Bo-thun struck each other during the course of an argument. When Anderson returned, a fight began between him and Bothun. This fight was eventually broken up. Wheeler and Anderson entered their apartment while Bothun and a friend, Matthew Martin, who witnessed the evening’s events, returned to Bothun’s apartment.

A short time later, Anderson entered Bo-thun’s apartment with a knife in his hand saying, “You hit my old lady. I’ll kill you you son of a bitch.” Wheeler followed Anderson into Bothun’s apartment. Another fight started between Anderson and Bo-thun. When Anderson was on the floor with Bothun on top of him, Wheeler jumped on Bothun’s back and pulled his head back by his hair. Martin, who had been present during the altercation, saw that Anderson’s knife had been plunged into Bothun’s side. After the knife had been withdrawn, Martin took the knife away from Anderson. Wheeler and Anderson returned to their apartment, and the police were called. Bothun died from the stab wound.

At trial, Martin testified that, while Wheeler was not trying to help Anderson stab Bothun, “she wasn’t trying to prevent it either.” He also testified that the stabbing happened so quickly that it could not have been prevented by a bystander.

Wheeler and Anderson were charged with first degree murder and a crime of violence. Wheeler’s trial was severed from Anderson’s at her request. Before trial, the People reduced the charge to second degree murder and a crime of violence.

When the case was submitted to the jury, the trial court instructed the jury, over Wheeler’s objection, on the lesser included offenses of manslaughter and criminally negligent homicide, and a complicity instruction was also given.¹

After the jury returned a verdict of guilty to the offense of criminally negligent homicide, Wheeler moved for judgment of acquittal on the ground that it is a logical and legal impossibility to commit the crime of criminally negligent homicide by complicity.

In its order granting the motion, the trial court first noted that the prosecution relied on a complicity theory in prosecuting Wheeler, and she was found guilty of criminally negligent homicide under such a theory. The court also noted that Wheeler was acquitted of second degree murder and manslaughter.

After setting out the essential elements necessary to show complicity, the court stated:

The important requirement as it relates to this case is that the complicitor must have had knowledge that the principal intended to commit the crime. Criminally negligent homicide is an unintentional killing caused by the actor’s failure to perceive a substantial and unjustifiable risk that a certain result will occur.... A finding that a defendant intended to perpetrate an unintentional killing or a finding that one had knowledge that another intended to perpetrate an unintentional killing is a logical impossibility.

The trial court concluded by holding that because there can be no crime of criminally negligent homicide by a complicitor, and given the fact that Wheeler was acquitted of second degree murder and manslaughter, she has been acquitted.²

II.

A.

Before reaching the detailed analysis on which we base our decision, it will be helpful to set forth some general rules about the theory of accountability known as complicity. Section 18-1-603, 8B C.R.S. (1986), describes when a person is legally accountable as a principal for the behavior of another on the theory of complicity. Section 18-1-603 provides: “A person is legally accountable as a principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he aids, abets, or advises the other person in planning or committing the offense.”

Complicity is not a separate and distinct crime or offense; it is merely a theory of law by which a defendant becomes accountable for a criminal offense committed by another. People v. Thompson, 655 P.2d 416, 418 (Colo.1982); People v. R.V., 635 P.2d 892, 894 (Colo.1981). Because complicity is not a substantive offense, the “intent” referred to in the complicity statute is not defined according to section 18-1-501(5), 8B C.R.S. (1986), which defines “intentionally” and “with intent” as those terms are used in the “offenses” set forth in the criminal code. R. V., 635 P.2d at 894. Instead, the words “with intent to promote or facilitate” retain their common meaning. See R.V., 635 P.2d at 894.

In People v. Thompson, 655 P.2d 416 (Colo.1982), this court set forth the requirements for finding a defendant guilty under the theory of complicity:

To support responsibility under the complicity statute it is only necessary to prove that (1) the principal committed the crime, (2) knowledge by the complicitor that the principal intended to commit the crime, and (3) the complicitor having the requisite knowledge, did aid, abet or encourage the principal in the commission of the crime.

Id. at 418. The issue in this case focuses on the second requirement in Thompson, “knowledge by the complicitor that the principal intended to commit the crime.” Therefore, our concern here is reconciling the requirement that the complicitor “in-ten[d] to promote or facilitate the commission of the offense” with the definition of criminally negligent homicide.

B.

Criminally negligent homicide is defined in section 18-3-105, 8B C.R.S. (1986), as follows: “Any person who causes the death of another person by conduct amounting to criminal negligence commits criminally negligent homicide which is a class 5 felony.”

Wheeler argues that the mens rea for complicity is the “intent to promote or facilitate the commission of the offense,” which requires “knowledge by the complicitor that the principal intended to commit the crime.” See § 18-1-603, 8B C.R.S. (1986); Thompson, 655 P.2d at 418. According to Wheeler, this intent to promote the offense precludes a finding of complicity liability for a criminally negligent death. A careful analysis of the requirements for complicity and the elements of criminally negligent homicide demonstrates that Wheeler’s argument is misconceived.

The “intent to promote or facilitate the commission of the offense” of which the complicity statute speaks is the intent to promote or facilitate the act or conduct of the principal. Cf. People v. Thomas, 729 P.2d 972, 974 (Colo.1986). This language does not require that the complicitor intend for the principal to cause death. Cf. Thomas, 729 P.2d at 974. The complicitor also need not intend for the principal to act in a criminally negligent manner. Cf. Thomas, 729 P.2d at 974. This language only requires knowledge by the complicitor that the principal is engaging in, or about to engage in, criminal conduct. Thus, the jury could find Wheeler guilty of criminally negligent homicide on a theory of complicity if it believed that she knew Anderson, the principal, was about to engage in conduct that was a gross deviation from the standard of care that a reasonable person would exercise.

This conclusion is supported by the reasoning of Thomas. In that case, we concluded that “there is no logical or legal inconsistency involved in the recognition of attempted reckless manslaughter as a crime under the Colorado Criminal Code.” Id. at 975; see also People v. Castro, 657 P.2d 932 (Colo.1983) (attempted extreme indifference murder is a cognizable crime under the Colorado Criminal Code).

In recognizing the crime of attempted reckless manslaughter, the Thomas court concluded that:

Attempted reckless manslaughter requires that the accused have the intent to commit the underlying offense of reckless manslaughter. The “intent to commit the underlying offense” ... is the intent to engage in and complete the risk-producing act or conduct. It does not include an intent that death occur even though the underlying crime, reckless manslaughter, has death as an essential element.

Thomas, 729 P.2d at 974 (footnote omitted). Likewise, in this case, the “intent to promote or facilitate the commission of the offense” of which the complicity statute speaks is the intent to aid the principal in the criminal act or conduct. It does not include an intent that death occur even though the underlying crime, criminally negligent homicide, has death as an essential element.³

Wheeler argues that the analysis used in Thomas does not apply because the crime involved in that case was attempted reckless manslaughter. According to Wheeler, the attempt statute requires that the defendant “act[] with the kind of culpability otherwise required for commission of an offense,” § 18-2-101(1), 8B C.R.S. (1986), while the complicity statute requires that the complicitor act “with the intent to promote or facilitate the commission of the offense,” § 18-1-603, 8B C.R.S. (1986).

In Thomas, however, this court did not base its decision on the language “act[] with the kind of culpability otherwise required for the commission of the offense” in the attempt statute. Instead, this court relied on the language of People v. Frysig, 628 P.2d 1004 (Colo. 1981), which held that the “intent to commit the underlying offense is an essential element of criminal attempt.” Id. at 1010.

The language that the Thomas court relied on, namely, the “intent to commit the underlying offense,” is similar to the language of the complicity statute which provides that the complicitor must act with the “intent to promote or facilitate the commission of the offense.” The logic of the analysis in Thomas is the same whether the court is confronted with the attempt requirement from Frysig or the complicity requirement from the statute. Therefore, we believe the reasoning underlying the Thomas decision is equally applicable in this case.

C.

The trial court ruled that a verdict of guilty of criminally negligent homicide on a theory of complicity is a logical and legal impossibility because it requires a finding that a complicitor knew that the principal intended to perpetrate an unintentional killing. A careful examination of the definitions in the criminal code reveals the fallacy in this argument.

As set forth above, criminally negligent homicide is “causpng] the death of another person by conduct amounting to criminal negligence.” § 18-3-105, 8B C.R.S. (1986). Section 18-1-501(3) defines criminal negligence: “A person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists.” (Emphasis added.) When the definition of criminal negligence is added to the elements of criminally negligent homicide, the offense can be described as follows:

A person commits criminally negligent homicide when he causes the death of another person by performing an act if, when he does the act, he fails to perceive a substantial and unjustifiable risk that a result will occur (namely, death) through a gross deviation from the standard of care that a reasonable person would exercise.

See §§ 18-1-501(3), -3-105, 8B C.R.S. (1986).

When doing the act which “amountfs] to criminal negligence,” the principal need not intend to cause a specific result, death. What is required is that he voluntarily engage in an act and, while engaging in the act, he fails to perceive a risk that a result will occur through a gross deviation from the standard of care that a reasonable person would exercise.

Therefore, for a person to be guilty of criminally negligent homicide through a theory of complicity, he need not know that death will result from the principal’s conduct because the principal need not know that. However, the complicitor must be aware that the principal is engaging in conduct that grossly deviates from the standard of reasonable care and poses a substantial and unjustifiable risk of death to another. In addition, he must aid or abet the principal in that conduct and, finally, death must result from that conduct. A verdict of guilty of criminally negligent homicide on a theory of complicity, therefore, does not involve an intent to promote or facilitate an unintentional act. Cf. Thomas, 729 P.2d at 975.

Accordingly, we reverse the judgment of the trial court and remand the case for the conviction to be reinstated.

ERICKSON, J., dissents.

1 .Jury Instruction No. 14 reads as follows:

A person is guilty of an offense committed by another person if she is a complicitor. To be guilty as a complicitor, the following must be established beyond a reasonable doubt:

1. A crime must have been committed

2. Mitchell Anderson must have committed all or part of the crime

3. The Defendant, Laurie Wheeler, must have had knowledge that Mitchell Anderson intended to commit all or part of the crime

4. The Defendant, Laurie Wheeler, with the intent to promote or facilitate the commission of the offense

5. Aided, abetted, or advised the other person in planning or committing the offense.

The adequacy of this instruction is not before us, and accordingly, we offer no opinion concerning it.

2 . Subsequent to the court’s order, Mitchell Anderson entered a plea of guilty to second degree murder and received a sentence of twenty-four years.

3 . In Thomas, 729 P.2d at 974 n. 1, we pointed out that for some crimes, the intent to perform the "conduct" element of the crime will satisfy all the elements of the underlying offense, but for other crimes “the purposeful completion of the actor's conduct does not necessarily satisfy all the essential elements of the crime.” The difference between the two groups of crimes is that the latter include “result” or "consequence” elements (e.g., death), while the former do not contain “result” or “consequence” elements. In this case, we hold that a defendant, to be guilty under a theory of complicity, must have knowledge that the principal intends to engage in conduct that was a gross deviation from the standard of care that a reasonable person would exercise. Therefore, the presence or absence of "result" or "consequence" elements is not controlling.