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People v. Rock

Supreme Court of Colorado, En Banc

September 11, 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

          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 both that the trial court erred in denying Rock's requested instruction and that the error was not harmless with regard to either of Rock's convictions.

         ¶2 Because the district court erred in denying the defendant her requested instruction on second degree criminal trespass on the ground that it was not a lesser included offense of the charged offense of second degree burglary, and because erroneously denying Rock's requested instruction was not harmless with regard to either of her convictions, the judgment of the court of appeals is affirmed.

         I.

         ¶3 Priscilla Rock was charged with one count of second degree burglary, as proscribed at section 18-4-203(1), C.R.S. (2017), and one count of theft, as proscribed at section 18-4-401(1)(a), C.R.S. (2017), 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, " without ever intending to permanently keep these items from their owners, in hopes of compelling her ex-boyfriend to deliver the memory card to her later. 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 both on the grounds that the elements of second degree criminal trespass are not included within the elements of second degree burglary and that the record lacked any rational basis to conclude that the defendant entered any building or structure other than a dwelling. 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 relied on prior holdings of its own and suggestions by this court to the effect that the elements of second degree criminal trespass are included within second degree burglary, and therefore that the defendant was entitled to an instruction permitting the jury to convict of the former offense in lieu of the latter. Id.

         ¶7 We granted the People's petition for a writ of certiorari[2] and issued an opinion on June 5, 2017, reversing the judgment of the court of appeals. We subsequently granted the defendant's petition for rehearing and withdrew that opinion. We now affirm the judgment of the court of appeals.

         II.

...


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