Griego v. People, No. 99SC228.

Citation19 P.3d 1
Case DateFebruary 20, 2001
CourtSupreme Court of Colorado

19 P.3d 1

Anthony GRIEGO, Petitioner,
The PEOPLE of the State of Colorado, Respondent

No. 99SC228.

Supreme Court of Colorado, En Banc.

February 20, 2001.

As Modified on Denial of Rehearing March 12, 2001.

19 P.3d 2
David S. Kaplan, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, CO, Attorneys for the Petitioner

Ken Salazar, Attorney General, Roger G. Billotte, Assistant Attorney General, Appellate Division, Denver, CO, Attorneys for the Respondent.

JUSTICE BENDER delivered the Opinion of the Court.

In this appeal we hold that the offense of driving after revocation prohibited1 includes the material element of "knowingly" as the culpable mental state of this crime and that jury instructions should include the definition of "knowingly" as defined in section 18-1-501(6), 6 C.R.S. (2000). The court of appeals in People v. Griego, 983 P.2d 99 (Colo.App. 1998) held that the trial court's failure to define the culpable mental state of "knowingly" in its jury instructions was not error and affirmed Griego's conviction. We disagree with this reasoning. We hold that the jury should be instructed that the culpable mental state of this crime is knowingly and that the failure to so instruct constitutes constitutional error. However, because we follow the recent holding of the United States Supreme Court in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), we hold that this instructional error is subject to constitutional harmless error analysis rather than structural error analysis. Our review of the record in this case leads us to conclude that the instructional error was harmless beyond a reasonable doubt. Thus, we affirm the judgment of the court of appeals.


The facts presented at trial are as follows. The defendant, through his attorney, conceded that he was driving when his license was under revocation because he was a habitual traffic offender. The only issue that was contested was whether the defendant had knowledge of this revocation.

Lakewood police officer Nancy Gaertner testified that she saw the defendant, Anthony Griego, drive on a public highway in Jefferson County in April 1996. Agent Gaertner testified that, as she transported the defendant

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to the police department, he "spontaneously said he knew he shouldn't be driving."

The prosecutor introduced into evidence a copy of a notice of revocation for revocation as a habitual offender, dated May 1993, sent via certified mail return receipt requested to the defendant's last known address.

The defendant's sister, Lisa Griego, testified that in May of 1993 she, her parents, and two other siblings lived at the address where the department had sent the notice of revocation. She said that the defendant did not live at this address. She explained that all five residents of the house had slots for their mail and that, although the defendant also received mail there, there was no slot in which to put his mail. Ms. Griego identified the signature on the receipt as that of her mother and said that she did not know what her mother did with the notice after signing it. She also stated that in the last five years her mother had been getting very forgetful.

At the jury instruction conference the court discussed the proposed instructions with both counsel. Defense counsel argued that a definition of the culpable mental state of "knowingly" "[went] along with the stock instruction as to voluntary act and culpable mental state" and tendered a stock instruction setting forth these principles. See CJI-Crim. 6:01. Defense counsel also argued that the court's instructions should include the culpable mental state of "knowingly," which is required for this offense and was contained in the defense's tendered instruction.

The court ruled that the tendered instruction need not be given to the jury, reasoning that the stock instruction defining the offense, which required the prosecution to prove that the defendant had knowledge of the revocation as a result of his classification as a habitual traffic offender, was sufficient. In addition, the court stated that because the defendant's proposed definitional instruction stated the culpable mental state as "knowingly" while the stock elemental instruction listed the element as "knowledge," "[the] definition of knowingly as opposed to knowledge would [not] be particularly helpful" to the jury.

In closing, the prosecutor told the jury that the only element of the offense at issue was notice. "I'd submit that the issue really is was there notice. . . . That's why we're here today, for you to determine whether he had knowledge of this order, because if he did, then we've met all the other elements. If he didn't then we've failed." The prosecutor called the jury's attention to the permissive inference jury instruction,2 which informed the jury that it may, but was not required to, find the fact of knowledge from various predicate facts, and argued that the jury should use this instruction to find that the prosecution had met its burden of proving notice.

Similarly, defense counsel, in his closing, agreed with the prosecutor that his client's knowledge of the revocation as a habitual offender was the only contested element and argued that the prosecution had failed to prove this element beyond a reasonable doubt.

[Knowledge] is the whole crux of the case, and that's what's missing in this case, and the prosecution has the burden — beyond a reasonable doubt — to prove that Mr. Griego
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had actual knowledge that he had been declared by the Motor Vehicle Department a Habitual Traffic Offender, and his saying, well, you can assume this or think that or whatever, sure, you're the jury, all right, and you can really do whatever you feel is appropriate, but the prosecution has failed to present evidence of that whatsoever, much less to the degree of beyond a reasonable doubt.

After deliberation the jury returned a verdict of guilty.

The defendant appealed and the court of appeals affirmed. Griego, 983 P.2d at 100. The court of appeals acknowledged that knowledge is an essential element of driving after revocation prohibited. Id. at 101. Nonetheless, the court of appeals held that the trial court's failure to instruct the jury on the definition of the culpable mental state of "knowingly" did not constitute error because "[t]he [elemental] instruction given [in this case] adequately described [the element of knowledge] to enable the jury to apply the law to the facts." Id. at 102. We granted certiorari to review this ruling.3 We affirm but employ different reasoning.


Although the state concedes that knowledge is an element of the crime of driving after revocation prohibited, it argues that the word "knowledge" does not incorporate the culpable mental state of "knowingly" defined in section 18-1-501(6). Therefore, the state argues that the court of appeals was correct when it held that the trial court did not commit error when it rejected the defendant's tendered instruction containing the statutory definition of "knowingly." The defense, on the other hand, argues that we have clearly stated in our case law that the word "knowledge" refers to the culpable mental state of "knowingly" and, further, that the legislature has demonstrated its approval of this construction. We agree with the defense on this issue and conclude that the word "knowledge" does refer to the culpable mental state of "knowingly." We also conclude that the trial court's failure to instruct the jury on the definition of that culpable mental state was an error of constitutional magnitude. Nonetheless, we conclude that this error was harmless beyond a reasonable doubt and thus affirm the decision of the court of appeals.

A. Culpable Mental States

To provide background for our discussion, we review the purpose behind defining culpable mental states statutorily and discuss the specific history of the culpable mental state requirement for driving after revocation prohibited.

"In the past, courts and legislatures developed a variety of definitions for different mental states, creating confusion about what the prosecution had to prove in a criminal case." People v. Hall, 999 P.2d 207, 216 (Colo.2000). In an effort to eliminate this confusion, the drafters of the Model Penal Code recommended that criminal codes articulate and define the specific culpable mental states that would suffice for criminal liability. Id. As part of the complete revision of Colorado's criminal code in 1971, the General Assembly followed this recommendation and adopted a provision specifically defining four culpable mental states intentionally, knowingly, recklessly, and with criminal negligence — applicable to all offenses in Colorado. See § 18-1-501; Hall, 999 P.2d at 216. To convict a defendant of any crime other than one of strict liability, the prosecution must prove that the defendant acted with one of these four culpable mental states. Hall, 999 P.2d at 217; see also § 18-1-103(1), 6 C.R.S. (2000) (mandating that the provisions of the criminal code govern the construction of any offense defined in any statute of the state). These culpable mental states apply not only when a statute explicitly spells out the culpable mental state required for commission of an offense, but also when, "[a]lthough no culpable mental state is expressly designated in a statute defining an offense . . . the proscribed

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conduct necessarily involves such a culpable mental state." § 18-1-503(2), 6 C.R.S. (2000)

The driving after revocation statute does not on its face require a culpable mental state. Nonetheless, in People v. Lesh, 668 P.2d 1362, 1365 (Colo.1983), we held that "the People are required to prove the element of knowledge of the revocation order in a driving after [revocation] prohibited case."4 We affirmed this holding in Ault v. Department of Revenue, 697 P.2d 24,...

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