[Copyrighted Material Omitted]
County District Court No. 13CR3365, Honorable Thomas R.
H. Coffman, Attorney General, Lisa K. Michaels, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
K. Wilson, Colorado State Public Defender, Karen Mahlman
Gerash, Deputy State Public Defender, Denver, Colorado, for
Introduction and Summary
1] This case requires us to address when a trial
court may properly deny a defendants 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
3] The trial court denied Joostens 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
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, 398 P.3d 134;
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 Joostens tendered
instruction, or alternatively, when it failed to work with
Joostens 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.
Relevant Facts and Procedural History
6] The prosecutions 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, Joostens 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
7] One morning, the roommate heard a knock on the
door. As she looked through the doors peephole, Joosten
kicked down the door and the door hit her in the face.
Joosten entered the apartment and went into his girlfriends
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 girlfriends room to attempt
to grab the roommates phone. During this confrontation,
Joostens girlfriend fled the apartment and the roommates
boyfriend called the police.
9] Joosten went back into his girlfriends room,
where he cut up her drivers license and bank card and cut
the cords of her hair dryer and curling iron.
10] The police arrived shortly thereafter and
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] Joostens 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, Joostens girlfriend
had offered to wash Joostens work clothes and suggested that
he pick them up the next morning; but the roommate also
testified that she was not sure whether the ...