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
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
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.
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. 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,
" 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.
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
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.
We granted the People's petition for a writ of
certiorari 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.