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]
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. 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. 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.
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 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. 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 a tenancy-at-will when it
provided that it would continue until terminated by lessees),
aff'd in part, rev'd in part on other
grounds, 189 Colo. 169, 539 P.2d 1261 (1975).
¶
17 There's no record evidence of a landlord-tenant
agreement between the victim and defendant. Defendant had no
lease or rental agreement with the victim, written or
otherwise, and he didn't pay rent. See §
38-12-502(6), C.R.S. 2017 ("'Tenant' means a
person entitled under a rental agreement to occupy a dwelling
unit to the exclusion of others."); Maes v. Lakeview
Assocs., Ltd., 892 P.2d 375, 377 (Colo.App. 1994)
("[I]n all landlord-tenant relationships, the
'landowner' is in the business of renting property.
The tenant is a customer of the landlord in a continuing
business relationship that is mutually beneficial."),
aff'd, 907 P.2d 580 (Colo. 1995); Black's
Law Dictionary 1694 (10th ed. 2014) (defining
"tenancy" as "[t]he possession or occupancy of
land under a lease; a leasehold interest in real
estate"). And defendant's mere contributions to
groceries and other bills didn't otherwise give him a
leasehold interest. See Maes, 892 P.2d at 378
("[T]he business relationship between the landlord and
tenant is an adequate basis for distinguishing that
relationship from that of a landowner and the landowner's
social guest."); Piotrowski v. Little, 911
N.Y.S.2d 583, 585 (N.Y. City Ct. 2010) ("It is clear
that a landlord-tenant relationship does not exist between
the parties [who cohabitated for over a decade and dated for
about nine years]. The respondent was not granted exclusive
possession of the premises in exchange for rent, but rather
received shared use and occupancy of the premises along with
the petitioner.").
¶
18 In arguing that he was indeed a tenant, defendant relies
on two cases, People v. Hollenbeck, 944 P.2d 537
(Colo.App. 1996), and Commonwealth v. Robbins, 662
N.E.2d 213 (Mass. 1996), which involved spouses living in the
same house. He says these cases "are meaningful
here" because they "affect[] consideration" of
whether he had a possessory interest in the victim's
house.
¶
19 In Hollenbeck, a division of this court
considered whether an estranged spouse could be charged with
burglary of the marital residence he'd recently occupied
with his estranged wife. In answering "yes," it
held that, in the absence of a ...