County District Court No. 13CR813 Honorable Shannon D. Lyons,
Cynthia H. Coffman, Attorney General, Erin K. Grundy,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Chelsea E.
Mowrer, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Donald Jon Riley, appeals the judgment of
conviction entered on jury verdicts finding him guilty of
indecent exposure (third or subsequent offense) and two
counts of public indecency. We vacate the judgment of
conviction and remand for an evidentiary hearing as to
whether the alternate juror was present during deliberations.
2 D.M. saw a man masturbating in the alley behind an
outbuilding near her house. She left to pick up her daughter
from preschool, and, as she was leaving, she noticed that the
man had moved to a different outbuilding. She stopped at the
Weld County Sheriff's office on her way to her
daughter's preschool and reported the incident. When D.M.
and her daughter returned home, D.M. again saw the man
masturbating outside her house, so she called 911.
3 Defendant was arrested and put in the back seat of a patrol
car for transport to the jail. The deputy assigned to
transport defendant used handcuffs in front of his body to
accommodate defendant's medical condition. While the
deputy was driving, she heard a clanking noise that sounded
like moving handcuffs.
4 The deputy pulled over, went around to the back of the
vehicle and opened the door. She instructed defendant to pull
up his shirt. He did not comply, and instead reached for his
pants legs to pull them up. The deputy lifted defendant's
shirt, and saw "flesh" in the open "V" in
the crotch of defendant's pants. She was embarrassed, so
she immediately put defendant's shirt down and told him
to "stop what he was doing."
5 Defendant contends that (1) the evidence was insufficient
to support his conviction for public indecency; (2) the trial
court erred by failing to instruct the jury on the definition
of "public place"; (3) the prosecutor committed
misconduct by expressing his personal opinion during closing
argument that D.M. had testified truthfully; (4) the trial
court erred by allowing an alternate juror into the jury room
after the conclusion of closing arguments, and then
dismissing him without inquiring as to whether he had been
present during deliberations; and (5) the trial court erred
by sentencing him for class 6 felony indecent exposure
without requiring a jury verdict on whether he had prior
convictions for indecent exposure.
Sufficiency of the Evidence to Support Public Indecency
6 Defendant contends that the evidence was insufficient to
support his conviction for public indecency as to the count
pertaining to the police officer victim. He does not
challenge the sufficiency of the evidence to support his
conviction for public indecency as to the count pertaining to
the other victim.
7 On appeal, defendant asserts that the prosecution failed to
prove (1) that the back of the patrol car was either a public
place or a place where the conduct may reasonably be expected
to be viewed by any member of the public and (2) that
defendant knowingly exposed his genitals to the officer who
drove the vehicle. We conclude that because public indecency
was submitted to the jury at defense counsel's request as
a lesser non-included offense, defendant is precluded under
the invited error doctrine from challenging the sufficiency
of the evidence to support that conviction.
8 The invited error doctrine rests on the principle that
"a party may not complain on appeal of an error that he
has invited or injected into the case; he must abide the
consequences of his acts." People v. Zapata,
779 P.2d 1307, 1309 (Colo. 1989). "Invited error most
often arises in holding a defendant responsible for tendering
or agreeing to a jury instruction later challenged on
appeal." People v. Foster, 2013 COA 85, ¶
9 In this case, defense counsel requested that the jury be
instructed on the lesser non-included offense of public
indecency. He now complains that the evidence is insufficient
to support the charge he requested.
Lesser Non-included Offenses
10 "A lesser non-included offense is an offense less
serious than the charged offense, arising from the same facts
but containing at least one element different from those in
the original charge." People v. Garcia, 17 P.3d
820, 826 (Colo.App. 2000). An instruction on a lesser
non-included offense is "tantamount to a theory of the
case instruction and is strategic." People v.
Medrano-Bustamente, 2013 COA 139, ¶ 90. Unlike a
lesser included offense, "a lesser non-included offense
instruction may be given only if the defendant requests it or
consents to it." People v. Skinner, 825 P.2d
1045, 1047 (Colo.App. 1991). A defendant is entitled to a
lesser non-included offense instruction, as part of his
theory of defense, if there is a rational basis in the
evidence to support a verdict acquitting him of the greater
offense and simultaneously convicting him of the lesser
offense. People v. Trujillo, 83 P.3d 642,
645 (Colo. 2004).
11 Defense counsel requested that public indecency be
submitted to the jury as a lesser non-included offense. As
relevant here, the offense of public indecency is defined as
(1) Any person who performs any of the following in a public
place or where the conduct may reasonably be expected to be
viewed by members of the public commits public indecency:
. . .
(e) A knowing exposure of the person's genitals to the
view of a person under circumstances in which such conduct is