People v. Baca

• Citation: 852 P.2d 1302
• Decision Date: 22 October 1992
• Docket Number: No. 90CA1761,90CA1761
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Enselmo BACA, Defendant-Appellant. . IV
• Court: Court of Appeals of Colorado

Page 1302

852 P.2d 1302

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Enselmo BACA, Defendant-Appellant.

No. 90CA1761.

Colorado Court of Appeals Div. IV.

Oct. 22, 1992.

Rehearing Denied Dec. 17, 1992.

Certiorari Denied June 7, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Roger G. Billotte, First Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Samuel Santistevan, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge METZGER.

Defendant, Robert Enselmo Baca, appeals the judgment of conviction entered upon jury verdicts finding him guilty of second degree murder, theft, and attempted theft. He also seeks review of the 45-year sentence imposed by the trial court for the murder count. We affirm both the judgment and the sentence.

The charges against defendant arose as a result of the strangulation death of an acquaintance of the defendant. According to defendant, he and the victim returned to the victim's home from a party at which both had become intoxicated. Defendant fell asleep and was awakened by the victim making sexual advances towards him. The two struggled, and defendant strangled the victim to death. He then took several pieces of jewelry, the victim's car keys, and left the scene. He was arrested almost two years later in California where he had been living under an assumed name.

I.

Defendant contends the trial court committed error in submitting a jury instruction providing an additional definition of "knowingly" as applied to second degree murder. While we agree that the instruction was unnecessary, we conclude that no reversible error occurred.

The decision to provide a jury with additional written instructions which properly state the law is a matter within the trial court's sound discretion. People v. Shearer, 650 P.2d 1293 (Colo.App.1982). The resolution of issues committed to the discretion of the trial court will not constitute reversible error absent manifest prejudice or a clear showing of an abuse of discretion. People v. Bowman, 738 P.2d 387 (Colo.App.1987).

Section 18-3-103(1)(a), C.R.S. (1986 Repl.Vol. 8B) provides: "[A] person commits the crime of murder in the second degree if he causes the death of a person knowingly, but not after deliberation."

The trial court here gave two definitions of the term "knowingly." The first instruction (Instruction No. 19) was the instruction set out in COLJI-Crim. No. 6:01 (1983), which states:

A person acts 'knowingly' or 'willfully' with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts 'knowingly' or 'willfully' with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.

This instruction mirrors the statutory definition of "knowingly" found at § 18-1-501(6), C.R.S. (1986 Repl.Vol. 8B).

Also within the same instruction, which the trial court felt was "poorly worded and confusing," additional definitions of the requisite mental state as specifically applied to each offense were included. As applied to the offenses of second degree murder and manslaughter, the additional language provided:

A person acts 'knowingly' with respect to murder in the second degree (See instruction no. 14) and manslaughter (See instruction no. 14) when he is aware that his conduct is practically certain to cause death.

A.

Defendant first argues that the trial court's supplemental definition of "knowingly" is inconsistent with the standard instruction and is legally insufficient because it defines the requisite mental culpability only in the terms of result and fails to address conduct or circumstances. Under the circumstances of this case, we disagree.

The definition of an offense may include conduct, circumstances, or result elements. Accordingly, the mens rea of "knowingly" is statutorily defined according to whether it applies to the nature of the forbidden conduct, or to the circumstances, or to the result of the conduct. See § 18-1-501(6); see also People v. Derrera, 667 P.2d 1363 (Colo.1983).

Although the distinction between an awareness of one's conduct or circumstance and an awareness of the result of one's conduct is at times subtle, it is a distinction recognized by the Colorado Criminal Code itself. People v. Noble, 635 P.2d 203 (Colo.1981).

The mens rea requirement for criminal conduct is denominated in the Colorado Criminal Code which generally follows American Law Institute, Model Penal Code § 2.02 (1985). Comments to that provision recognize that the material elements of offenses vary and that they may involve (1) the nature of forbidden conduct, or (2) the attendant circumstances, or (3) the result of the conduct. American Law Institute, Model Penal Code § 2.02 at 233-34 (1985). Therefore, when a statute requires a mens rea of "knowingly," it may speak to conduct, or to circumstances, or to result, or to any combination thereof, but not necessarily to all three.

The prosecution must establish two factors to prove second degree murder. First, it must show that the death was more than merely a probable result of the defendant's actions. Second, it must demonstrate that the defendant was aware of the circumstances which made death practically certain. People v. Mingo, 196 Colo. 315, 584 P.2d 632 (1978).

However, the term "circumstances" used in Mingo speaks not to circumstances proscribed by statute, but to the circumstances of the event which were practically certain to result in death. See People v. District Court, 652 P.2d 582 (Colo.1982) (to prove second degree murder, it must be shown that the circumstances surrounding the shooting were sufficient to establish that the defendant was aware of the probable fatal consequences of his actions).

The distinctions among conduct, circumstances, and result become much clearer upon reviewing other criminal statutes in which the mens rea is "knowingly."

For example, the child abuse statute, § 18-6-401(1), C.R.S. (1986 Repl.Vol. 8B), provides that a person commits child abuse if he or she knowingly permits a child to be: (a) unreasonably placed in a situation which poses a threat of injury to the child's life or health; or engages in a continued pattern of conduct which results in (b) malnourishment; or (c) lack of proper medical care; or (d) cruel punishment; or (e) mistreatment; or (f) an accumulation of injuries ultimately resulting in death or serious bodily injury. In this statute, "knowingly" does not refer to the actor's awareness that his or her conduct is practically certain to cause the proscribed result. Instead, it refers to the actor's general awareness of the abusive nature of his or her conduct in relation to the child or to his or her awareness of the circumstances in which he or she commits an act against the well-being of a child. People v. Noble, supra.

Using another example, a person is guilty of attempted second degree kidnapping under § 18-3-302, C.R.S. (1986 Repl.Vol. 8B) if such person knowingly engages in conduct which is strongly corroborative of the firmness of his or her purpose knowingly to seize or carry another person from one place to another without consent or without lawful justification. See People v. Lahr, 200 Colo. 425, 615 P.2d 707 (1980).

Also, theft under § 18-4-401, C.R.S. (1986 Repl.Vol. 8B) requires proof that the accused knowingly obtained possession of or exercised control over property either without authorization or by theft or deception. See People v. Griffie, 44 Colo.App. 46, 610 P.2d 1079 (1980). Under that statute, the perpetrator must be aware that he or she is obtaining control over a thing of value without authorization as proscribed by statute. The statute itself speaks to circumstances which constitute "knowing" and does not focus solely on a result.

Similarly, theft by receiving under § 18-4-410, C.R.S. (1986 Repl.Vol. 8B) requires proof that the accused knew or believed the goods were stolen. Again, result is a factor, but circumstances proscribed by the statute, i.e., knowing or believing that goods had been stolen, is the essential element to proving the mens rea. People v. Griffie, supra.

Here, the plain meaning of the court's additional instruction on the mental state of "knowingly" as applied to second degree murder required the prosecution to prove beyond a reasonable doubt that the defendant's awareness of his physical actions towards the victim were such that they were practically certain to cause the victim's death. This instruction was not inconsistent with either the standard instruction on "knowingly" or the statutory definition of second degree murder. Therefore, while the giving of the additional portion of the instruction was unnecessary, we conclude that it was not a misstatement of the law that would require reversal.

B.

Defendant also argues that the trial court's additional instruction interfered with his affirmative defense of self-defense. He asserts that the trial court improperly foreclosed further consideration of the "knowingly" element with respect to the attendant circumstances which gave rise to the defendant's need to defend himself. Because this argument belies the clear intention of the second degree murder statute, we disagree.

"Circumstances" as used in § 18-1-501(6), C.R.S. (1986 Repl.Vol. 8B) does not encompass those matters forming the context of an event but specifically refers to circumstances as proscribed by a statute defining an offense. Therefore, defendant's use of the term "circumstances" in its application to his affirmative defense is contrary to established law.

Additionally, we note that the jury was explicitly instructed that the elements of second degree murder included proof that the defendant acted without the affirmative defense...