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People v. Riley

Court of Appeals of Colorado, Third Division

May 19, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Donald Jon Riley, Defendant-Appellant.

         Weld County District Court No. 13CR813 Honorable Shannon D. Lyons, Judge

          Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Chelsea E. Mowrer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          BOORAS JUDGE

         ¶ 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.

         I. Background

         ¶ 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."

         II. Discussion

         ¶ 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.

         A. 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.

         1. Invited Error

         ¶ 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, ¶ 26.

         ¶ 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.

         2. 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).

         3. Analysis

         ¶ 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 follows:

(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 ...

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