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People v. Smith

Supreme Court of Colorado, En Banc

April 30, 2018

The People of the State of Colorado, Petitioner
Adam Isolano Smith. Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 14CA2164

          Attorneys for Petitioner: Cynthia H. Coffman, Attorney General Joseph G. Michaels, Assistant Attorney General Denver, Colorado

          Attorneys for Respondent: Law Office of Daniel H. Kyser, L.L.C. Daniel H. Kyser Englewood, CO.



         ¶1 In this case we consider two issues: (1) whether defendant Adam Isolano Smith waived or invited error with respect to his claim of a prejudicial simple variance when defense counsel stated that the proposed jury instructions were generally acceptable and (2) whether a jury instruction that does not identify the particular victim named in the charging document creates a simple variance warranting reversal when the jury could potentially have deemed either of two people to be the victim.[1] In light of our opinion in People v. Rediger, 2018 CO 32, __P.3d__, also decided today, we conclude that Smith neither waived nor invited error with respect to his variance claim because the record does not indicate that he intentionally relinquished a known right or that he injected the alleged error into this case. Consequently, we review Smith's variance claim for plain error. Because we cannot say that the evidence presented at Smith's trial obviously would have allowed the jury to conclude that Smith menaced a victim not named in his charging document, however, we conclude that the trial court did not plainly err in instructing the jury without specifying the victim.

         ¶2 Accordingly, although we agree with the division that the doctrine of invited error does not bar appellate review of Smith's claim, we reverse the division's judgment.

         I. Facts and Procedural History

         ¶3 Smith and his then-girlfriend were staying together in a hotel room at the Mt. Princeton Hot Springs Resort. After an argument, the girlfriend left the room and called the police for help in retrieving her belongings. A police officer arrived, and with the officer behind her, the girlfriend attempted to re-enter the room. As the girlfriend pushed open the door, which Smith had barricaded with furniture, she and the officer saw Smith standing with a handgun pointed at the partially open door. The girlfriend backed out of the door, and she and the officer retreated, the girlfriend to the side of the building and the officer to his patrol car. Smith later exited the room, and after a brief physical confrontation, the officer arrested him.

         ¶4 The People subsequently charged Smith with menacing-domestic violence related, among other counts. The menacing-domestic violence related charge alleged as follows:

On or about January 14, 2014, Adam Isolano Smith, by any threat or physical action unlawfully, feloniously, and knowingly placed or attempted to place [the girlfriend] in fear of imminent serious bodily injury by use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article was a deadly weapon, namely: Hand Gun; in violation of sections 18-3-206(1)(a)/(b) and 18-6-800.3, C.R.S.

         ¶5 The case proceeded to trial, and at trial, Smith admitted that he had pointed a gun at his girlfriend, but he explained that he had done so in self-defense because he was in imminent fear of his girlfriend or an intruder, in part because his girlfriend had attacked him earlier that day and on prior occasions. Smith further testified that he did not see the officer while he was holding the gun. Both the girlfriend and the officer testified that they had seen Smith holding the gun and that they were afraid when Smith pointed his gun in their direction.

         ¶6 Prior to instructing the jury, the trial court engaged in a discussion with counsel regarding the proposed jury instructions and verdict form. As pertinent here, during this discussion, Smith requested that the court insert the phrase "or another individual" into the self-defense instruction so that it read, "It is also the theory of the defense that Mr. Smith acted upon a reasonable belief that [the girlfriend] or another individual was going to use imminent and unlawful physical force upon him on January 14, 2014, due to the injuries already inflicted upon Mr. Smith by [the girlfriend]." The court included this modification in the final instructions. Otherwise, Smith did not object to the instructions or the verdict form. To the contrary, when asked whether the instructions that the court had shown him were acceptable, defense counsel stated, "They are acceptable, Judge."

         ¶7 The trial court ultimately instructed the jury that Smith was charged with a number of offenses, including "Menacing-domestic violence related." As to this charge, the court instructed the jury, in pertinent part, as follows:

         The elements of the crime of menacing with a deadly weapon, as to Count 1 are:

1. that the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. knowingly,
4. by threat or physical ...

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