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People v. Joosten

Court of Appeals of Colorado, Fourth Division

August 9, 2018

The People of the State of Colorado, Plaintiff-Appellee,
Leonard Joosten, Defendant-Appellant.

          Adams County District Court No. 13CR3365 Honorable Thomas R. Ensor, Judge

          Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Karen Mahlman Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          BERGER, JUDGE.

         I. Introduction and Summary

         ¶ 1 This case requires us to address when a trial court may properly deny a defendant's theory of the case instruction, and when the wrongful denial of such an instruction requires reversal.

         ¶ 2 A jury convicted Leonard Joosten of second degree burglary, first degree criminal trespass, one count of third degree assault, and two counts of class 3 misdemeanor criminal mischief. Joosten appeals only the burglary conviction.

         ¶ 3 The trial court denied Joosten's tendered theory of the case instruction regarding the burglary charge, reasoning that the tendered instruction was nothing more than a denial of the elements of the charged crime. In view of that conclusion, the trial court did not work with defense counsel to craft an acceptable theory of the case instruction.

         ¶ 4 The supreme court has repeatedly and unambiguously held that a criminal defendant is entitled to a theory of the case instruction. See, e.g., People v. Roman, 2017 CO 70, ¶ 15; People v. Nunez, 841 P.2d 261, 264-65 (Colo. 1992). None of the exceptions to that rule were applicable in this case. Nunez, 841 P.2d at 264-65. Accordingly, the trial court erred when it refused Joosten's tendered instruction, or alternatively, when it failed to work with Joosten's counsel to craft a permissible instruction. Nevertheless, because the error was harmless, we affirm the second degree burglary conviction.

         ¶ 5 Joosten also claims that the mittimus is incorrect as to the criminal mischief charges. We agree and direct that the mittimus be corrected to reflect that Joosten was convicted of class 3 misdemeanor criminal mischief, not class 2 misdemeanor criminal mischief.

         II. Relevant Facts and Procedural History

         ¶ 6 The prosecution's evidence permitted the jury to find the following facts. Joosten and his girlfriend lived together and were in an intimate relationship for many years. When the relationship deteriorated, Joosten's girlfriend found a roommate. Joosten moved out of the apartment, but continued to "frequently" spend the night there. He also continued to keep at least some of his belongings at the apartment.

         ¶ 7 One morning, the roommate heard a knock on the door. As she looked through the door's peephole, Joosten kicked down the door and the door hit her in the face. Joosten entered the apartment and went into his girlfriend's bedroom. They argued and the roommate heard a "thud" followed by the girlfriend yelling for the roommate to call the police. Joosten told the roommate he would beat her if she called the police.

         ¶ 8 The roommate answered a phone call from her boyfriend, and Joosten left his girlfriend's room to attempt to grab the roommate's phone. During this confrontation, Joosten's girlfriend fled the apartment and the roommate's boyfriend called the police.

         ¶ 9 Joosten went back into his girlfriend's room, where he cut up her driver's license and bank card and cut the cords of her hair dryer and curling iron.

         ¶ 10 The police arrived shortly thereafter and arrested him.

         ¶ 11 The prosecution charged Joosten with second degree burglary, two counts of third degree assault (one involving his girlfriend and one involving the roommate), and two counts of criminal mischief.

         ¶ 12 Joosten's principal defenses to the burglary charge were that he had a possessory interest in the apartment and that his girlfriend invited him there. Supporting the invitation defense, the roommate testified that the day before the events at issue, Joosten's girlfriend had offered to wash Joosten's work clothes and suggested that he pick them up the next morning; but the roommate also testified that she was not sure whether the girlfriend later revoked this invitation. The girlfriend testified that she did not remember extending this invitation to Joosten.

         ¶ 13 The jury acquitted Joosten of the third degree assault charge involving the roommate, but convicted him of all the other counts and of first degree criminal trespass.[1] On appeal, he challenges only his conviction for second degree burglary and the alleged error in the mittimus relating to the criminal mischief charges.

         III. There Was Sufficient Evidence to Convict Joosten of Second Degree Burglary

         ¶ 14 We first address Joosten's contention that the evidence was insufficient to convict him of second degree burglary, because if he is correct, further prosecution may be prohibited by constitutional prohibitions against ...

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