People ex rel. N.D.O.
| Decision Date | 22 July 2021 |
| Docket Number | Court of Appeals No. 20CA0214 |
| Citation | 2021 COA 100,497 P.3d 1070 |
| Parties | The PEOPLE of the State of Colorado, Petitioner-Appellant, IN the INTEREST OF N.D.O., Juvenile-Appellee. |
| Court | Colorado Court of Appeals |
Peter A. Weir, District Attorney, Colleen R. Lamb, Deputy District Attorney, Golden, Colorado, for Petitioner-Appellant
Nicole M. Mooney, Alternate Defense Counsel, Denver, Colorado, for Juvenile-Appellee
Opinion by JUDGE NAVARRO
¶ 1 In the proceedings below, the juvenile, N.D.O., was adjudicated delinquent. The prosecution raises two arguments on appeal. First, the prosecution argues that the trial court incorrectly stated the law by instructing the jury that complicitor liability cannot support a crime of violence finding, which is a sentence enhancer. Applying the combined force of our supreme court's decisions in People v. Swanson , 638 P.2d 45 (Colo. 1981), and People in Interest of B.D. , 2020 CO 87, 477 P.3d 143, we agree with the prosecution and disapprove the court's ruling as to that instruction. Second, the prosecution contends that N.D.O.’s sentence is illegal and asks us to remand with directions to sentence him as a violent juvenile offender. We deny that request because N.D.O.’s sentence is not illegal given the jury's findings.
¶ 2 Several teenagers stole a car and committed armed robberies of four gas stations. The prosecution alleged that N.D.O. was the getaway driver for two other teenagers who entered the stores and demanded, at gunpoint, that the clerks empty the registers.
¶ 3 The prosecution filed a petition in delinquency charging N.D.O. with (1) four counts of aggravated robbery with a confederate; (2) four counts of aggravated robbery while possessing any article used or fashioned in a manner as to convince a person that it is a deadly weapon; and (3) one count of conspiracy to commit aggravated robbery while possessing any article used or fashioned as a deadly weapon. See § 18-4-302(1)(c)-(d), C.R.S. 2020 (aggravated robbery); § 18-2-201, C.R.S. 2020 (conspiracy). The petition also alleged that N.D.O. was a violent juvenile offender under section 19-2-516(3), C.R.S. 2020, because the robberies involved the use, or possession and threatened use, of a deadly weapon (i.e., they were crimes of violence), see § 18-1.3-406(2)(a)(I)(A), C.R.S. 2020.1
¶ 4 N.D.O. exercised his statutory right to a jury trial. § 19-2-107(1), C.R.S. 2020. At trial, the prosecution did not allege or present evidence that N.D.O. personally entered the gas stations. Instead, the prosecution argued that he committed the aggravated robbery offenses as a complicitor.
¶ 5 The trial court instructed the jury on the elements of complicitor liability and instructed the jury that complicitor liability could apply to the aggravated robbery offenses. In addition, on each verdict form for the aggravated robbery and conspiracy counts, the court submitted the following interrogatory: "Did the juvenile use, or possess and threaten the use of, a deadly weapon?" During deliberations, the jury asked, "Does complicity apply to the yes/no [deadly weapon] question on the Aggravated Robbery charges?" The prosecutor asked the court to instruct the jury that complicitor liability applied to the deadly weapon interrogatories. The court decided that the original instructions did not answer the jury's question and, thus, a supplemental instruction was necessary. But the court rejected the prosecutor's position and told the jury instead that, while complicitor liability applied to a substantive offense, the "theory of complicity" did not apply to the deadly weapon interrogatories.
¶ 6 The jury found N.D.O. guilty on all counts, but the jury found that he did not use, or possess and threaten the use of, a deadly weapon to commit any offense. The trial court adjudicated N.D.O. delinquent and sentenced him to two years of probation, with forty-five days of detention as a condition thereof.
¶ 7 N.D.O. does not appeal the delinquency judgment. The prosecution, however, appeals the trial court's decision to instruct the jury that the theory of complicity did not apply to the deadly weapon interrogatories relevant to whether N.D.O. was a violent juvenile offender. The prosecution asks us to disapprove the court's instruction. See § 19-2-903(2), C.R.S. 2020 (); § 16-12-102(1), C.R.S. 2020 ().
¶ 8 Under the Colorado Children's Code, "a trial court normally has broad discretion to craft a sentence it deems appropriate for a particular [juvenile] offender." A.S. v. People , 2013 CO 63, ¶ 15, 312 P.3d 168. But for certain classes of juveniles called "special offenders," the Colorado Children's Code imposes mandatory sentences. See § 19-2-908, C.R.S. 2020. One such class includes a "[v]iolent juvenile offender," a person who "is adjudicated a juvenile delinquent for a delinquent act that constitutes a crime of violence as defined in section 18-1.3-406(2)." § 19-2-516(3). A violent juvenile offender "shall be placed or committed out of the home for not less than one year," with an exception not applicable here. § 19-2-908(1)(c)(I)(A). A trial court has no jurisdiction to depart from this sentence absent a statutory exception. People in Interest of M.M.O.P. , 873 P.2d 24, 26 (Colo. App. 1993).
¶ 9 As noted, the petition alleged that N.D.O. was a violent juvenile offender because he committed a delinquent act that constituted a crime of violence as defined in section 18-1.3-406(2)(a)(I)(A). That provision defines aggravated robbery as a crime of violence if the offense was "committed, conspired to be committed, or attempted to be committed by a person during which, or in the immediate flight therefrom, the person: (A) [u]sed, or possessed and threatened the use of, a deadly weapon." § 18-1.3-406(2)(a)(I)(A) & (2)(a)(II)(F).
¶ 10 The prosecution asks whether a trier of fact may find that a juvenile's delinquent act constituted a crime of violence (e.g., the act involved the use, or possession and threatened use, of a deadly weapon) under a complicity theory. See § 18-1-603, C.R.S. 2020 (defining complicity). We answer that question "yes" and thus disapprove the trial court's ruling and supplemental instruction.
¶ 11 N.D.O. argues that the prosecution invited the alleged error by tendering the original complicity instructions without specifying that complicitor liability applied to the deadly weapon interrogatories. We disagree.
¶ 12 The invited error doctrine prevents a party from complaining on appeal of an error that he or she has invited or injected into the case. People v. Rediger , 2018 CO 32, ¶ 34, 416 P.3d 893. N.D.O. is correct that a party can invite an error by tendering an erroneous instruction. See id. And, while the record does not make entirely clear who tendered the original instructions, the prosecution does not dispute N.D.O.’s claim that it submitted them. The original instructions specifically applied complicity to the aggravated robbery charges () but not to the deadly weapon interrogatories. The original instructions did not follow the advice of the Model Jury Instructions, which counsel that, in cases involving complicity, it may be appropriate to modify a crime of violence interrogatory by adding the words "or a complicitor" when asking if "the defendant" used, or possessed and threatened the use of, a deadly weapon. COLJI-Crim. ch. 1.3 cmt. 2 (2020).
¶ 13 As a result, the original instructions were, at the very least, ambiguous as to whether complicity applied to the deadly weapon interrogatories. We thus understand why the jury asked its question and why the trial court found that the original instructions did not answer the question. Still, the jury's question gave the court and the parties the opportunity to clarify the original instructions and to correct any erroneous impression left by them.
¶ 14 The error asserted on appeal is not in the original complicity instructions but in the court's supplemental instruction answering the jury's question. Because the prosecution objected to that supplemental instruction, we do not discern invited error, and we turn to the merits.
¶ 15 In our view, the combined force of two decisions from our supreme court compels the conclusion that a juvenile can be held accountable under a complicity theory for a crime of violence.
¶ 16 Under a complicity theory, "[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 or she aids, abets, advises, or encourages the other person in planning or committing the offense." § 18-1-603.
¶ 17 In People v. Swanson , 638 P.2d 45 (Colo. 1981), the supreme court decided that complicity liability applied to a substantially similar version of the crime of violence statute. That is, the court rejected the notion that the crime of violence statute applied "only to a defendant who personally used or possessed and threatened to use a deadly weapon during the commission of a crime." Id. at 49 § 16-11-309(2), C.R.S. 1973 ). The court emphasized that "[t]he mandatory sentence for conviction of [a] crime of violence is based on a recognition of the increased potential for harm arising from the manner in which the crime was committed" and "[t]his heightened danger is present regardless of which robber held the gun." Id. at 50. The court thus concluded that "an accessory to [a] crime of violence may be charged, tried and punished as a principal." Id. (...
To continue reading
Request your trial
-
Summaries of Published Opinions
...of default against husband and the default permanent orders judgment were reversed and the case was remanded for further proceedings. 2021 COA 100. No. 20CA0214. People in the Interest of N.D.O. Juvenile Delinquency—Violent Juvenile Offender Complicity—Illegal Sentence. N.D.O. was charged w......