People v. Murray

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          La Plata County District Court No. 14CR124, Honorable William L. Herringer, Judge

         Cynthia H. Coffman, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

         Douglas K. Wilson, Colorado State Public Defender, Anne T. Amicarella, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

         OPINION

         J. JONES, JUDGE.

         [¶ 1] A jury found defendant, Michael Christane Murray, guilty of first degree burglary, trespass, third degree assault, false imprisonment, attempted sexual assault, attempted second degree burglary, and criminal mischief, all arising out of an incident occurring at the victim’s home. Among the issues we address is whether any evidence was presented that defendant, the victim’s former boyfriend, was a tenant of the victim’s home so that his entry or remaining on the premises could’ve been lawful. We conclude that there wasn’t. And because we reject defendant’s other contentions of error, we affirm.

          I. Background

         [¶ 2] Defendant’s ex-girlfriend (the victim) asked him to come to her house to help with an errand. The couple had dated "on and off" for about two years, and defendant had stayed frequently at the house, but the two had broken up about two-and-a-half weeks earlier.

         [¶ 3] Defendant entered the victim’s house, and the two got into an argument. The victim told defendant to leave. Defendant threatened the victim, ripped off her clothes, and tried to sexually assault her. At that moment, a friend of the victim showed up. Defendant chased him into the street. The victim locked the door behind defendant and called 911. Defendant yelled at the victim to let him back in the house, but she refused. He then broke a window on the front door trying to get back inside the house.

          II. Discussion

         [¶ 4] Defendant contends that the district court erred by (1) inaccurately and inadequately instructing the jury on the unlawfully entered or remained element of the burglary and trespass charges; (2) denying his motions for a judgment of acquittal based on insufficiency of the evidence; (3) ruling that if he introduced certain of his recorded statements pursuant to the doctrine of completeness, his credibility would be fair game for attack by the prosecution; and (4) ruling that the prosecution could use his Montana deferred judgment to impeach his credibility (both if he introduced the recorded statements and if he chose to testify). We address and reject these contentions in turn.^[1]

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          A. The District Court Properly and Adequately Instructed the Jury Concerning "Entering or Remaining Unlawfully"

         [¶ 5] Defendant contends that the court provided an inaccurate instruction defining "enters unlawfully" and "remains unlawfully," and that it abused its discretion by refusing his tendered instruction explaining those concepts.

          1. Additional Background

         [¶ 6] The charges of first degree trespass and first and second degree burglary required proof that defendant "unlawfully" entered or remained on the victim’s premises. § § 18-4-202(1), -203(1), -502, C.R.S. 2017.

         [¶ 7] For purposes of these offenses, "[a] person ‘enters unlawfully’ or ‘remains unlawfully’ in or upon premises when the person is not licensed, invited, or otherwise privileged to do so." § 18-4-201(3), C.R.S. 2017. The court so instructed the jury. At the prosecutor’s request, and over defense counsel’s objection, the court also agreed to instruct the jury as follows, using language from People v. Waddell, 24 P.3d 3 (Colo.App.Div. 1 2000):

A previously granted invitation to enter or remain in a dwelling can be withdrawn at any time by the person with authority to grant the invitation. If a person refuses to leave the dwelling after the invitation to enter or remain is withdrawn by one with authority to grant the invitation, that person is thereupon remaining unlawfully after a lawful entry, so long as no other license or privilege to remain exists.

         [¶ 8] Defense counsel requested an additional instruction including the following language:

A person is licensed, invited or otherwise privileged to enter or remain in or upon premises when he occupies that premises.

Ownership of a property is irrelevant in determining whether a person had a license, invitation or privilege to enter or remain in or upon a premises.

In order for a person to relinquish occupancy of a premises, such that he no longer has a license, invitation or is otherwise privileged to enter or remain in or upon those premises, both parties must have understood that the possessory interest of one party was being relinquished.

         [¶ 9] The basis for defense counsel’s objection to the prosecutor’s added instruction and for his requested instruction was his argument that defendant wasn’t on the premises unlawfully because he lived there: defendant had moved all his clothing and most of his furniture into the victim’s house; though defendant occasionally spent the night at his employer’s house, he spent "pretty much every night" leading up to the incident at the victim’s house; defendant had a key; and defendant was "free to come and go as he pleased," even after the breakup. Essentially, counsel argued that there was evidence defendant had a possessory interest in the house that the victim wasn’t free to revoke on the spot.

         [¶ 10] The court declined to give defense counsel’s tendered instruction because there wasn’t any evidence defendant had any right to stay at the house. To the contrary, the court ruled that the victim owned the house and could tell defendant to leave at any time: his presence at her invitation hadn’t made him a "constructive tenan[t]."

          2. Standard of Review

         [¶ 11] We review de novo whether a jury instruction correctly states the law. People v. Robles-Sierra, 2018 COA 28, ¶ 50, __ P.3d __. But we review for an abuse of discretion whether the district court erred in refusing to give a particular instruction. Id.

         [¶ 12] To the extent defendant’s argument presents questions of statutory interpretation, we review such questions de novo. Marsh v. People, 2017 CO 10M, ¶ 19, 389 P.3d 100.

          3. Analysis

          a. The Court’s Additional Instruction Accurately Stated the Law

         [¶ 13] Defendant doesn’t direct us to any authority, nor are we aware of any, casting

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doubt on the correctness of the court’s instruction that "a previously granted invitation to enter or remain in a dwelling can be withdrawn at any time by the person with authority to grant the invitation ... [s]o long as no other license or privilege exists." Indeed, it seems to be an accurate statement of Colorado law. See § 18-4-201(3); People v. Ager, 928 P.2d 784, 790 (Colo.App.Div. 1 1996) ("A person can be convicted of a burglary if previously granted permission to enter is withdrawn and the person enters or remains on the premises with the intent to commit a crime therein."). Instead, he argues that the language in this instruction "mirror[ed] the prosecution’s argument that [someone in defendant’s situation] has no possessory rights in the eyes of the law because that person’s name is not on the mortgage or a written lease." But there’s no such limiting language in the instruction. So this contention necessarily fails.^[2]

          b. The Court Didn’t Abuse Its Discretion by Rejecting Defendant’s Proposed Additional Instruction

         [¶ 14] Defendant’s sole argument in this context is that because he was a tenant with a possessory interest in the premises, he was a "licensee" whose license the victim couldn’t revoke without written notice. He seems to concede that if he wasn’t a tenant, the victim could immediately revoke whatever license or privilege he had to be on the premises. We conclude that the linchpin of his argument— that he was a tenant— doesn’t hold up. And because it fails, his claim of error in refusing the tendered instruction falls apart.

         [¶ 15] Defendant argues, relying primarily on various civil statutes,^[3] that by moving into the victim’s house for a time and helping to pay certain bills he became a tenant-at-will, and was therefore entitled to written notice before being evicted from the house (assumedly because the tenancy provided him with a license or privilege to remain). See § 13-40-107, C.R.S. 2017 (governing terminations of tenancies). It follows, he says, that he was lawfully on the premises because the victim didn’t have the right to revoke his tenancy on the spot. But even assuming these civil statutes can apply in this criminal context, we conclude that defendant’s argument mischaracterizes the nature of a tenancy-at-will.

         [¶ 16] "It is fundamental to the relationship of landlord and tenant that an estate pass to the tenant and that he achieve possession and control of such property." Hoffman v. King Res. Co., 187 Colo. 300, 302, 530 P.2d 961, 962 (1975). Even a tenancy-at-will requires an agreement in which a landlord transfers possession to a tenant. See § 13-40-107(3) ("Any person in possession of real property with the assent of the owner is presumed to be a tenant at will until the contrary is shown."). Such a tenancy is characterized by an agreement for possession for an indefinite period of time and "the right of either party to terminate the lease at will." Collins v. Shanahan,34 Colo.App. 82, 86-87, 523 P.2d 999, 1002 (1974) (emphasis added) (lease didn’t create ...