[Copyrighted Material Omitted]
Plata County District Court No. 14CR124, Honorable William L.
H. Coffman, Attorney General, Brenna A. Brackett, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
K. Wilson, Colorado State Public Defender, Anne T.
Amicarella, Deputy State Public Defender, Denver, Colorado,
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 victims home.
Among the issues we address is whether any evidence was
presented that defendant, the victims former boyfriend, was
a tenant of the victims home so that his entry or remaining
on the premises couldve been lawful. We conclude that there
wasnt. And because we reject defendants other contentions
of error, we affirm.
2] Defendants 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 victims 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.
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
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
6] The charges of first degree trespass and first
and second degree burglary required proof that defendant
"unlawfully" entered or remained on the victims
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 prosecutors
request, and over defense counsels 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
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
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 counsels objection to the
prosecutors added instruction and for his requested
instruction was his argument that defendant wasnt on the
premises unlawfully because he lived there: defendant had
moved all his clothing and most of his furniture into the
victims house; though defendant occasionally spent the night
at his employers house, he spent "pretty much every
night" leading up to the incident at the victims 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 wasnt free
to revoke on the spot.
10] The court declined to give defense counsels
tendered instruction because there wasnt 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 hadnt made him a "constructive
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 defendants argument presents
questions of statutory interpretation, we review such
questions de novo. Marsh v. People, 2017 CO 10M, ¶
19, 389 P.3d 100.
Courts Additional Instruction Accurately Stated the Law
13] Defendant doesnt direct us to any authority,
nor are we aware of any, casting
doubt on the correctness of the courts 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 prosecutions argument that [someone in
defendants situation] has no possessory rights in the eyes
of the law because that persons name is not on the mortgage
or a written lease." But theres no such limiting
language in the instruction. So this contention necessarily
Court Didnt Abuse Its Discretion by Rejecting Defendants
Proposed Additional Instruction
14] Defendants 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 couldnt revoke without written notice. He seems to
concede that if he wasnt 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— doesnt 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, that by moving into the victims 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 didnt 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
defendants argument mischaracterizes the nature of a
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 didnt create ...