County District Court No. 15CR159 Honorable Julie C. Hoskins,
Cynthia H. Coffman, Attorney General, Rebecca A. Adams,
Senior Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Mackenzie Shields,
Deputy State Public Defender, Denver, Colorado, for
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.
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.
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
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, ...