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People v. Garcia

Court of Appeals of Colorado, Fifth Division

December 27, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Tanya Marie Garcia, Defendant-Appellant.

          Weld County District Court No. 15CR159 Honorable Julie C. Hoskins, Judge

          Cynthia H. Coffman, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Mackenzie Shields, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          RICHMAN JUDGE.

         ¶ 1 Defendant, Tanya Marie Garcia, appeals the judgment of conviction entered on a jury verdict finding her guilty of one count of felony menacing, seven counts of reckless endangerment, and one count of reckless driving. We affirm.

         I. Background

         ¶ 2 On January 24, 2014, Garcia became convinced that one of her children's friends, a twelve-year-old boy named T.H., had stolen a bottle of nail polish from her home. Garcia drove to a local park and confronted T.H., who claimed that Garcia's daughter had given him the nail polish. A heated argument ensued in which Garcia threatened to assault T.H., causing T.H. to retreat. Garcia then returned to her SUV, started the car, accelerated over the curb in the direction of T.H., and drove across the park. T.H. testified that he had to hide behind a fence to avoid being hit by Garcia's car. At the time of the incident, many children were in the park. Some of those children testified at trial and were named victims in this case.

         ¶ 3 During voir dire, Garcia's counsel informed prospective jurors that they would be hearing testimony from alleged victims who were children. Counsel then made various inquiries as to whether each prospective juror could fairly judge the credibility of children and whether a juror's sympathy for children would trigger bias against Garcia.

         ¶ 4 Along with several other prospective jurors who expressed concerns, prospective juror J.P. indicated that while he had had a "soft spot" for his young children, he felt he could "comply with what [the judge was] asking," although it might be difficult. He also noted, "I feel like children are so innocent. I don't know when they don't become innocent but my two little - two girls are - are so innocent and that does weigh on me." Garcia's counsel later challenged J.P. for cause, arguing that he could not fairly evaluate a child witness's credibility. The trial court denied Garcia's challenge. Garcia exhausted her peremptory challenges but did not use a peremptory challenge to remove J.P. He then served as a juror in Garcia's trial.

         ¶ 5 On appeal, Garcia contends that the trial court erred in denying her challenge for cause as to J.P. because his position on the credibility of children prevented him from being fair and impartial. In response, the People first argue that Garcia invited the error of which she complains by failing to use a peremptory challenge to excuse J.P. and that any potential error is not reviewable on appeal. In the alternative, the People argue that the trial court properly denied Garcia's challenge for cause.

         II. Invited Error

         ¶ 6 We first address the contention that Garcia invited error by failing to use a peremptory challenge to excuse J.P. If we perceive that Garcia's claimed error resulted from the affirmative injection of error into the case, then the claim of error is unreviewable. People v. Rediger, 2018 CO 32, ¶ 37; see also Horton v. Suthers, 43 P.3d 611, 619 (Colo. 2002) (declining to review the merits of appellant's argument because appellant's position at trial was plainly inconsistent with his position on appeal).

         ¶ 7 The doctrine of invited error is based on the principle that a party must abide by the consequences of her actions at trial. Horton, 43 P.3d at 618. She "may not complain on appeal of an error that [s]he has invited or injected into the case . . . ." People v. Zapata, 779 P.2d 1307, 1309 (Colo. 1989). The invited error doctrine, therefore, prevents a party from taking a position on appeal that is inconsistent with the position she initially took. Horton, 43 P.3d at 618. However, its application is limited to situations where an error was caused by a party's affirmative, strategic conduct and not by a party's inaction or inadvertence. People v. Becker, 2014 COA 36, ¶ 20; see also People v. Gross, 2012 CO 60M, ¶¶ 11-12 (holding that the court would not consider whether the trial court erred in giving a jury instruction where the defendant's counsel argued in its favor at trial in a deliberate and strategic manner); People v. Stewart, 55 P.3d 107, 119-20 (Colo. 2002) (holding that where an instruction was not given due to counsel's apparent inadvertence, the court would review the claim of error on appeal).

         ¶ 8 In this case, we do not perceive that Garcia's position on appeal is inconsistent with the position that she took at trial. In addition, due to the uncertain nature of counsel's motivations with respect to peremptory strikes, the record does not allow us to discern why J.P. remained on the jury. Accordingly, ...


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