Bogdanov v. People

• Citation: 941 P.2d 247
• Decision Date: 16 June 1997
• Docket Number: No. 96SC34,96SC34
• Parties: 21 Colorado Journal 839 Branko BOGDANOV, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Supreme Court of Colorado

Page 247

941 P.2d 247

21 Colorado Journal 839

Branko BOGDANOV, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 96SC34.

Supreme Court of Colorado,

En Banc.

June 16, 1997.

Rehearing Denied July 28, 1997.

David F. Vela, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, for Petitioner.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Laurie A. Booras, Assistant Attorney General, Criminal Enforcement Section, for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

The defendant, Branko Bogdanov (Bogdanov), was convicted under a complicity theory of second degree burglary of a warehouse ¹ and theft; ² and of criminal conspiracy to commit theft. ³ On appeal, Bogdanov argued, among other things, that the standard jury instruction on complicity violated his right to due process of law. The court of appeals disagreed, relying on People v. Close, 867 P.2d 82 (Colo.App.1993). See People v. Bogdanov, No. 92CA1623, slip op. at 6-8 (Colo.App. Dec. 14, 1995) (not selected for official publication). We granted certiorari to determine whether the pattern complicity instruction violates due process. We conclude that it does not, and affirm the court of appeals in upholding Bogdanov's convictions of theft and burglary under a complicity theory.

I.

The prosecution presented the following evidence at trial. On April 22, 1990, Bogdanov along with three women entered a warehouse clothing store in Fort Collins, Colorado. Two of the women distracted the sales clerks at one end of the store by asking several questions about the merchandise. Bogdanov and the third woman were at the other end of the store near the office door. While Bogdanov held up a large pair of pants, the third woman slipped behind him and entered the store office. The woman emerged from the office about 30 seconds later, after which Bogdanov and the three women exited the store together.

A fourteen-year-old who witnessed the activities of Bogdanov and the third woman immediately reported to a store employee that the woman had been in the office. The employee rushed outside and yelled "excuse me" to the four customers, but the group ran to their car and sped away. The employee obtained a license plate number from the departing car driven by Bogdanov, returned to the office, and called the police. He then checked the office safe, and discovered that five bank bags containing deposits were missing. The store manager later testified that she had entered the safe fifteen minutes prior to the incident for change, and that the bank bags with the deposits were in the safe at that time. The bank bags had contained approximately $2200 in cash, $1100 in checks, and some loose change.

The Fort Collins Police Department issued a dispatch regarding the suspected theft, including a description of Bogdanov's car, a description of the four occupants, ⁴ and the license plate number. Later that same day, Dan Dyer, a Wyoming Highway Patrol officer, spotted Bogdanov's vehicle. He stopped the car and, after confirming with the Fort Collins Police that the four persons in the car fit the description of those wanted for theft, arrested Bogdanov and the three female passengers. Dyer found about $1000 in cash on Bogdanov's person, and approximately $400 was later found on the persons of the three females. In addition, Pete Baker, an investigator with the Fort Collins Police Department, testified that when he searched the car, he found about $10 to $15 worth of change scattered about the car. No checks were found.

Pursuant to the investigation, Detective Michael West of the Fort Collins Police Department prepared two photo lineups, one of six females, and the other of six males. The fourteen-year-old witness identified Bogdanov as the male he had seen in the store. He also identified two of the females who were with Bogdanov at the warehouse. The manager of the clothing store identified the third female from the photo lineup. Another store employee chose a male from the lineup who was not Bogdanov, but identified one of the three women who was with Bogdanov at the store.

In December 1991, the case proceeded to trial. The trial judge provided the jury with several instructions, including one on complicity. The jury found Bogdanov guilty of second degree burglary, theft, and criminal conspiracy to commit theft. Bogdanov was ultimately sentenced to five years incarceration for burglary, five years for theft, and four years for conspiracy, to run concurrently. ⁵

Upon appeal, Bogdanov asserted a number of errors, including error in the complicity instruction. The court of appeals, relying on People v. Close, 867 P.2d 82 (Colo.App.1993), held that the complicity instruction did not amount to plain error, and sustained the judgment of conviction. See People v. Bogdanov, No. 92CA1623, slip op. at 7-8 (Colo.App. Dec. 14, 1995) (not selected for official publication). We hold that a portion of the language in the instruction was in error in this case, but such error did not constitute a denial of due process to Bogdanov. We therefore affirm the court of appeals.

II.

The questions raised by this case require us to review and clarify the state of mind required of an accomplice. Complicity is a theory of law by which an accomplice may be held criminally liable for a crime committed by another person if the accomplice aids, abets, or advises the principal, intending thereby to facilitate the commission of the crime. See § 18-1-603, 8B C.R.S. (1986); People v. Wheeler, 772 P.2d 101, 103 (Colo.1989); see generally 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 6.7, at 136 (1986). Because the General Assembly has broad authority to define the conduct and culpable mental state for which someone may be held criminally liable, see People v. Hill, 934 P.2d 821, 829 (Colo.1997); People v. Zinn, 843 P.2d 1351, 1354 (Colo.1993), we begin our analysis with the Colorado complicity statute, which states:

Complicity. A person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he aids, abets, or advises the other person in planning or committing the offense.

§ 18-1-603, 8B C.R.S. (1986) (emphasis added).

While "intent" is used in the Colorado complicity statute, ⁶ complicity itself does not thereby become a specific intent crime. Because complicity is not a substantive offense, see Wheeler, 772 P.2d at 103, the statutory definitions of mens rea contained in section 18-1-501(5), 8B C.R.S. (1986), ⁷ do not apply. See People v. R.V., 635 P.2d 892, 894 (Colo.1981). Rather, the term "intent" retains its common meaning. See People v. Rodriguez, 914 P.2d 230, 276 (Colo.1996); Wheeler, 772 P.2d at 103; R.V., 635 P.2d at 894.

Although the statutory definition of intent under section 18-1-501 does not apply, there is nevertheless a dual mental state requirement of the complicitor that must be proven before he or she can be legally accountable for the offense of another. Complicity liability exists when (1) the complicitor has the culpable mental state required for the underlying crime committed by the principal; and (2) the complicitor assists or encourages the commission of the crime committed by the principal "with the intent to promote or facilitate," § 18-1-603, such commission. ⁸ See generally, 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 6.7 (1986).

Complicity is not a theory of strict liability. It is not sufficient that the defendant intentionally engaged in acts which ultimately assisted or encouraged the principal. Rather, the complicitor must intend that his conduct have the effect of assisting or encouraging the principal in committing or planning the crime committed by the principal. See generally, id. As Learned Hand stated in United States v. Peoni, 100 F.2d 401 (2d Cir.1938), the traditional definitions of accomplice liability

have nothing whatever to do with the probability that the forbidden result would follow upon the accessory's conduct; ... [the definitions] demand that [the complicitor] in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek by his action to make it succeed.

Id. at 402.

Our holding in People v. Wheeler, 772 P.2d 101 (Colo.1989), which involved the crime of criminally negligent homicide, is not to the contrary. In Wheeler, we initially stated that the language from the complicity statute, "intent to promote or facilitate the commission of the offense," means the intent to promote or facilitate the act or conduct of the principal. See id. at 103-04. We continued by explaining that the "intent" language from the statute does not require that the complicitor intend for the principal to cause death; rather, it "only requires knowledge by the complicitor that the principal is engaging in, or about to engage in, criminal conduct." Id. (emphasis added).

The issue in Wheeler concerned reconciling the requirement that the complicitor "inten[d] to promote or facilitate the commission of the offense" with the definition of negligent homicide. See id. at 103. The principle we enunciated in Wheeler is that when a complicitor intentionally assists or encourages another whom the complicitor knows will thereby engage in conduct that grossly deviates from the standard of reasonable care and poses a substantial and unjustifiable risk of death to another, such a mental state should suffice for complicity liability for an underlying crime defined by the culpable mental states of recklessness or negligence. See id. at 105. Thus, the rule of Wheeler should only be applied to crimes defined in terms of...