to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner: Cynthia H. Coffman, Attorney
General Brock J. Swanson, Assistant Attorney General Denver,
Attorneys for Respondent: Douglas K. Wilson, Public Defender
Cory D. Riddle, Deputy Public Defender Denver, Colorado
¶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.
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.
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. She was convicted on both counts and
sentenced to concurrent two-year terms of probation.
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.
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.
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 ...