County District Court No. 13CR3365 Honorable Thomas R. Ensor,
Cynthia H. Coffman, Attorney General, Lisa K. Michaels,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Karen
Mahlman Gerash, Deputy State Public Defender, Denver,
Colorado, for Defendant-Appellant
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.
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
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. On appeal, he challenges only his
conviction for second degree burglary and the alleged error
in the mittimus relating to the criminal mischief charges.
There Was Sufficient Evidence to Convict Joosten of Second
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 ...