People v. Childress

• Decision Date: 23 November 2015
• Docket Number: Supreme Court Case No. 12SC820
• Citation: 363 P.3d 155
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Kenneth Leon CHILDRESS, Respondent.
• Court: Colorado Supreme Court

363 P.3d 155

The PEOPLE of the State of Colorado, Petitioner,

v.Kenneth Leon CHILDRESS, Respondent.

Supreme Court Case No. 12SC820

Supreme Court of Colorado.

November 23, 2015

As Modified on Denial of Rehearing January 11, 2016

Attorneys for Petitioner: Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado.

Attorneys for Respondent: Douglas K. Wilson, Public Defender, Elizabeth Griffin, Deputy Public Defender, Denver, Colorado.

En Banc

JUSTICE COATS delivered the Opinion of the Court.

¶ 1 The People petitioned for review of the court of appeals' judgment vacating Childress's conviction of vehicular assault while operating a motor vehicle under the influence of alcohol or drugs. Although it was undisputed that Childress was not driving the vehicle in question, the jury was instructed that he could be found guilty as a complicitor. The court of appeals concluded that because vehicular assault while under the influence is designated a strict liability offense, it requires no culpable mental state on the part of the driver, and it further found that this court had previously held complicitor liability inapplicable to crimes lacking a culpable mental state requirement.

¶ 2 As we clarify its reach and requirements today, complicitor liability in this jurisdiction is not limited to crimes defined as containing a culpable mental state. Because complicitor liability can extend to strict liability offenses, the judgment of the court of appeals vacating Childress's conviction for vehicular assault is reversed. Whether the jury was adequately instructed concerning the requirements of complicitor liability, as now clarified by this court, and what effect any deficiency in that regard may have on the defendant's conviction are not before this court. The matter is therefore remanded to the court of appeals with directions to address any other of the defendant's assignments of error possibly impacting his conviction of vehicular assault.

I.

¶ 3 Kenneth Leon Childress was convicted by jury verdict of child abuse resulting in serious bodily injury, vehicular assault (driving under the influence), driving while impaired by alcohol, reckless endangerment, reckless driving, and two counts of contributing to the delinquency of a minor. He was sentenced to a term of 28 years in the custody of the Department of Corrections for child abuse, to be served concurrently with a 6–year sentence for vehicular assault (DUI), a 6–month jail sentence for driving while impaired, a 6–month sentence for reckless endangerment, and a 90–day sentence for reckless driving. He was also sentenced to two consecutive 4–year terms for contributing to the delinquency of a minor, to be served consecutively with his child abuse sentence.

¶ 4 The vehicular assault charge,¹ in particular, arose from a motor vehicle accident in which the defendant's 17–year–old son was driving, while the defendant and his 3–year–old son were passengers. At trial, there was testimony from which the jury could find that upon learning someone produced a gun at a party from which the three had recently departed, the defendant and his older son decided to return, despite their both having been drinking heavily. It was undisputed that the older son drove, but testimony also indicated that the defendant urged him to speed and to disregard traffic signals, which he did, ultimately colliding with another vehicle and crashing into a building, severely injuring the younger son.

¶ 5 The jury was instructed that the defendant could be found guilty under a theory of complicity for a crime actually committed by another person, and it found him guilty of vehicular assault committed by causing serious bodily injury through the operation of a motor vehicle while under the influence of alcohol or drugs. On direct appeal, the court of appeals reversed a number of the defendant's convictions and sentences for various unrelated errors, and it vacated the defendant's conviction for vehicular assault, finding that complicitor liability in this jurisdiction does not extend to crimes lacking a culpable mental state requirement and that vehicular assault (driving under the influence), being statutorily designated a strict liability offense, does not include any culpable mental state requirement for conviction.

¶ 6 The People petitioned for a writ of certiorari.

II.

¶ 7 Article 1, Part 6 of the Colorado Criminal Code is designated "Parties to Offenses–Accountability" and specifies that a person is guilty of an offense if it is committed by the behavior of another person for which he is legally accountable according to the provisions of that Part. § 18–1–601, C.R.S. (2015). Part 6 then makes a person legally accountable for the behavior of an innocent person if he acts with the culpable mental state sufficient for the commission of an offense and causes that innocent person to engage in behavior sufficient for commission of the offense. § 18–1–602(1)(b), C.R.S. (2015). In addition to this so-called "innocent dupe" provision, however, section 602 also provides that a person will be legally accountable for the behavior of another whenever he is made accountable for the conduct of that person by either a statute defining a particular offense or by some specific provision of the Code. § 18–1–602(1)(a), C.R.S. (2015). Apart from those statutes defining particular offenses to which section 602 alludes, section 603, entitled "Complicity," provides more generally that a person is also legally accountable as a principal for the behavior of another constituting a criminal offense if, "with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense." § 18–1–603, C.R.S. (2015).

¶ 8 Quite apart from those crimes actually defined in terms of acts that can by their very nature be physically performed through agents or instrumentalities rather than only by the defendant himself, cf. Vaughn v. Simpson, 135 P.3d 721, 723–24 (Colo. 2006) (construing words "[a]ny person who diverts" to include anyone whose well continues to be used with his authorization), Anglo–American law has long assigned some degree of criminal liability to accomplices, according to the various roles they performed in furtherance of a crime, see generally Wayne R. LaFave, Substantive Criminal Law § 13.1(a)–(c) (2d ed. 2003 & Supp. 2014) (discussing the common law treatment of what were formerly categorized as principals in the first and second degree and accessories before and after the fact). Well before statehood, this jurisdiction had altered, by statute, the common law categories of parties to a crime, providing instead that accessories, as broadly defined by the statute to include both principals in the second degree and accessories before the fact, be deemed and considered as principals and punished accordingly. See Act Concerning Criminal Jurisprudence, sec. 13, 1861 Colo. Terr. Sess. Laws 290, 292; see also § 40–1–12, C.R.S. (1963) (derived from the 1861 act, concerning liability for accessories before the fact). Prior to enactment of the Colorado Criminal Code, however, the criminal statutes of the jurisdiction made no attempt to comprehensively provide for the legal accountability of one person for the behavior of another.

¶ 9 While perhaps not a radical departure from this statutory treatment of accessories, the current statutory treatment of accomplice liability in terms of "complicity," including its express requirement of "intent to promote or facilitate the commission of the offense," first appeared in the legislation of the jurisdiction with the adoption of the Colorado Criminal Code, effective July 1972, see ch. 121, sec. 1, § 40–1–703, 1971 Colo. Sess. Laws 388, 406; and apart from conversion to gender neutral language and the addition of the word "encourages" to the list of qualifying acts in furtherance of planning or committing the crime, the complicity statute in this jurisdiction has remained unchanged, compare § 40–1–703, C.R.S. (Supp. 1971), with § 18–1–603, C.R.S. (2015). As the result, however, of subsequent changes in pattern jury instructions, statutes defining culpable mental states, and case law both construing and applying the statute, the landscape of accomplice, or complicitor, liability in this jurisdiction has undergone several pronounced stages of development, leading to and framing the court of appeals' analysis at issue today.

¶ 10 Any meaningful answer to the question whether complicitor liability can extend to crimes containing no culpable mental state of their own is now necessarily dependent upon the precise meaning of the statutory phrase "with the intent to promote or facilitate the commission of the offense." There can be little question that our prior pronouncements concerning the implications of that phrase, made (as they have been) in the context of crimes with differing culpable mental states and involving (as they have) different acts in furtherance, are at various points in the analysis difficult to reconcile. We therefore take this opportunity to clarify and, to the extent necessary, reconsider the historical, theoretical, and statutory underpinnings of complicitor liability in this jurisdiction.

A.

¶ 11 In the period immediately following the enactment of the Criminal Code, the pattern criminal jury instructions merely provided an informational instruction quoting the statutory language, see COLJI–Crim. 6:5 (1972 & rev. ed. 1974) (on file with the Colorado Supreme Court Library), and this court continued to apply the case law predating the enactment of the Criminal Code, largely without reference to the new statutory language. In 1974, with regard to a crime committed after the enactment of the Criminal Code but before its effective date, this court summarized a half-century of court-made law to conclude that liability as an "accessory" required findings that (1) the...