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People v. Rock

Court of Appeals of Colorado

June 5, 2017

The People of the State of Colorado, Petitioner
v.
Priscilla Ann Rock, Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 11CA1936

          Attorneys for Petitioner: Cynthia H. Coffman, Attorney General Brock J. Swanson, Assistant Attorney General Denver, Colorado

          Attorneys for Respondent: Douglas K. Wilson, Public Defender Cory D. Riddle, Deputy Public Defender Denver, Colorado

         EN BANC

          OPINION

          COATS JUSTICE.

          ¶1 The People sought review of the court of appeals' judgment reversing Rock's convictions for second degree burglary and theft. See People v. Rock, No. 11CA1936 (Colo.App. July 3, 2014). The trial court denied Rock's request for an additional, lesser-included-offense instruction on second degree criminal trespass, on the ground that second degree criminal trespass is not an included offense of second degree burglary. The court of appeals reversed, concluding that in denying Rock's request, the trial court erred and that the error was not harmless with regard to either of Rock's convictions.

         ¶2 Because second degree criminal trespass is not a lesser included offense of second degree burglary under the strict elements test, as clarified in this court's recent decision in Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816, the judgment of the court of appeals is reversed.

         I.

         ¶3 Priscilla Rock was charged with one count of second degree burglary, as proscribed at section 18-4-203(1), C.R.S. (2016), and one count of theft, as proscribed at section 18-4-401(1)(a), C.R.S. (2016), both arising from the same incident.[1] She was convicted on both counts and sentenced to concurrent two-year terms of probation.

         ¶4 The evidence at trial indicated that at some point between May 29 and May 31, 2010, the defendant entered her ex-boyfriend's parents' house through a bedroom window and left the home with multiple DVDs, two jackets, a baseball hat, and a laptop computer. The defendant conceded that she entered the house without authorization, but testified that she did so for the purpose of locating a memory card containing digital pictures of her son, whose father is the ex-boyfriend. She further testified that after she failed to locate the memory card in the house, she took the items from the home to hold them as "collateral, " in hopes of compelling her ex-boyfriend to deliver the memory card to her later, without ever intending to permanently keep these items from their owners. The prosecution, however, presented evidence that the defendant sold and gave away some of the items.

         ¶5 The trial court instructed the jury on the elements of second degree burglary and theft, but denied the defendant's request for a lesser-included-offense instruction on second degree criminal trespass. The trial court declined to give the requested instruction on the ground that the elements of second degree criminal trespass are not included within the elements of second degree burglary. The jury returned guilty verdicts on second degree burglary and theft, and the defendant appealed her convictions.

         ¶6 The court of appeals reversed both of the defendant's convictions, finding that the trial court erred in denying the defendant's requested instruction and that the error was not harmless with regard to either conviction. Rock, slip op. at 3-7. With regard to the denial of the requested instruction in particular, the intermediate appellate court reasoned that the elements of second degree criminal trespass are included within second degree burglary and that the defendant was entitled to an instruction permitting the jury to convict of the former offense in lieu of the latter. Id.

          ¶7 The People petitioned ...


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