People v. Joosten

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

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 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

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 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

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 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).

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 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

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 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

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 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.

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¶ 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.

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 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.

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¶ 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.

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 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.

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 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.

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