People v. Bruno
| Decision Date | 20 November 2014 |
| Docket Number | Court of Appeals No. 13CA0548 |
| Citation | 2014 COA 158,342 P.3d 587 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. German Jasso BRUNO, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
GarciaLaw, LLC, J. Alberto Garcia, Broomfield, Colorado, for Defendant–Appellant.
¶ 1 Defendant, German Jasso Bruno, appeals the judgment of conviction and sentence entered upon jury verdicts finding him guilty of theft, criminal trespass, and offering a false instrument for recording. We affirm.
¶ 2 This case stems from Bruno's alleged attempt to adversely possess a home in Fraser, Colorado. At all relevant times, the home was privately owned by another party, but was unoccupied and in foreclosure. On October 6, 2011, Bruno filed an Affidavit of Adverse Possession with the Grand County Clerk and Recorder's Office (clerk's office), which stated that he and his wife had been living in the home since July 22, 2011.1 After confirming that Bruno did not own or have permission to be in the home, on October 26, 2011, an officer with the Fraser/Winter Park Police Department gave him one week to remove his belongings from the home and reinstall the original locks. After refusing to remove his family's belongings, on November 4, 2011, Bruno recorded several additional documents with the clerk's office, including (1) a document purporting to grant Alfonso Carrillo2 limited power of attorney over actions related to the home and (2) a lien statement for $40,648.00 in unpaid maintenance, cleaning, and repairs done on the home.
¶ 3 Bruno was arrested and charged with theft, trespassing, and two counts of offering a false instrument for recording.3 Bruno unsuccessfully moved to dismiss the charges of theft and offering a false instrument by arguing that he was acting lawfully under the adverse possession and power of attorney statutes. Bruno's attorney clarified that the motion to dismiss did not challenge the criminal trespass charge. At trial, Bruno also attempted to present a defense of adverse possession, arguing that he did not have the intent to commit the crimes charged, and instead intended to adversely possess the home.
¶ 4 The district court, however, ruled that a defense of adverse possession would not be allowed. Having ruled that adverse possession was inapplicable, the court ruled that testimony from Ronald Atwater, Bruno's expert witness on adverse possession law in Colorado, would not be allowed because it would be irrelevant and confusing to the jury. The district court also modified Bruno's proposed theory of defense instruction, removing reference to the adverse possession defense on the basis that it was argumentative and repetitive. The jury found Bruno guilty on all four counts and the court sentenced him to two years of probation.
¶ 5 Bruno argues that the district court erred in preventing him from raising the defense of adverse possession to the counts of theft and offering a false instrument. We disagree.
¶ 6 The parties agree that this issue was preserved in the district court. Whether a defendant can present an adverse possession defense is a question of law that we review de novo. Cf. People v. Garcia, 113 P.3d 775, 784 (Colo.2005) (). We also review questions of statutory construction and interpretation de novo. Trujillo v. Colo. Div. of Ins., 2014 CO 17, ¶ 12, 320 P.3d 1208 ; Smith v. Colo. Motor Vehicle Dealer Bd., 200 P.3d 1115, 1116 (Colo.App.2008).
¶ 7 Our primary objective when construing a statute is to effectuate the intent of the General Assembly. S. Fork Water & Sanitation Dist. v. Town of S. Fork, 252 P.3d 465, 468 (Colo.2011). If the language is clear, we should interpret the statute according to its plain and ordinary meaning. Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 397 (Colo.2010).
¶ 8 “The General Assembly is vested with constitutional authority not only to define criminal conduct and to establish the legal components of criminal liability but, as well, to delineate statutory defenses and bars to criminal prosecution.” Lybarger v. People, 807 P.2d 570, 580 (Colo.1991) (internal quotation marks omitted). Thus, to determine whether a defense exists, “we first look to the criminal code.” O'Shaughnessy v. People, 2012 CO 9, ¶ 11, 269 P.3d 1233. The applicable criminal statutes do not recognize a defense of adverse possession to the crimes of theft or offering a false instrument for recording. Consequently, we must next look to the adverse possession statute.
¶ 9 First, we note that Bruno did not contend that he had completed the required adverse possession period of eighteen years. Instead, he asserted that his attempt to adversely possess the property was authorized by the existence of the adverse possession statute. However, nothing in the statute suggests that the General Assembly intended to create an attempted adverse possession defense to any of the applicable crimes, and particularly so in the context of Bruno's intentional efforts. See § 38–41–101, C.R.S. 2014. Moreover, changes to the adverse possession statute in 2008 demonstrate that the General Assembly intended to eliminate the potential for such intentional or bad faith adverse possession claims. See Act Concerning the Sufficiency of the Assertion of a Claim for Title to Real Property by Adverse Possession Under Colorado Law, H.B. 08–1148, 66th Gen. Assemb., 2d Reg. Sess. (2008).4
¶ 10 The elements, developed through precedent, require that, “the party's possession of the disputed property [be] actual, adverse, hostile, under a claim of right, exclusive, and uninterrupted for at least the statutory period of eighteen years.” Hunter v. Mansell, 240 P.3d 469, 474 (Colo.App.2010) (citing § 38–41–101 ). The 2008 statutory changes included a heightened burden of proof whereby “each” element must be proved by clear and convincing evidence, and the addition of the requirement that the claimant have a reasonable, good faith belief that the claimant is the “actual owner.” See id. ; § 38–41–101(3)(a), (3)(b)(2).
¶ 11 Specifically, the statute requires that a claimant have a “good faith belief that ... [he] was the actual owner of the property[,] and the belief [must be] reasonable under the circumstances.” § 38–41–101(3)(b)(II). By adding the good faith requirement, the General Assembly made clear that it did not sanction the acquisition of property simply through trespass. As far as we can tell, Bruno never argued that he acted in good faith, and, in fact, he repeatedly acknowledged that he knew the property belonged to someone else and admitted to researching homes in the area that might be acquired through adverse possession.
¶ 12 Additionally, as Bruno contends, the statute allows for records in the clerk's office to serve as prima facie evidence of adverse possession, but only if they “show by conveyance or other instrument that the party in possession ..., through descent, conveyance, or otherwise, [has] asserted a continuous claim of ownership to the real property adverse to the record owner thereof for a period of eighteen years ....” § 38–41–103, C.R.S.2014 (emphasis added). Thus, the statute appears to apply only to records that show a completed statutory period, and not records demonstrating an attempt to begin such a period.
¶ 13 Because the General Assembly did not provide and did not intend to create an adverse possession defense in the circumstances presented here, we conclude that there is no defense of adverse possession to the crimes charged. See Oram v. People, 255 P.3d 1032, 1036 (Colo.2011).
¶ 14 To the extent that Bruno's adverse possession defense is actually a mistake of law defense in that he argues that he did not have the requisite criminal intent and instead intended to comply with the statute, this argument also fails. Specifically, Bruno argues that he was allowed to attempt to adversely possess the home, under section 38–41–101, by living in the home and filing supporting documents, and that he was also allowed to appoint an agent by power of attorney under section 15–14–701, C.R.S.2014, to defend his actions regarding the adverse possession. This would be a mistake of law. § 18–1–504(2), C.R.S.2014.
¶ 15 “A mistake of law defense relates to the mistaken belief that conduct does not, as a matter of law, constitute a criminal offense.” People v. Lesslie, 24 P.3d 22, 25 (Colo.App.2000). Such a mistaken belief, however, is not a defense unless the conduct falls into one of several exceptions, including that the conduct is permitted by statute or an official written interpretation of the law relating to the offense. Id. ; § 18–1–504(2)(a), (2)(c). Because the court properly determined that Bruno's actions were not permitted under the adverse possession statute, his mistaken belief does not relieve him of criminal liability, and we find no error.
¶ 16 Bruno argues that the district court erred by refusing to submit to the jury his entire tendered theory of defense instruction. We disagree.
¶ 17 Bruno preserved this issue in the district court by objecting to the court's refusal to use his full tendered instruction. Whether additional written jury instructions must be given which properly state the law and fairly and adequately cover issues presented is a matter within the district court's sound discretion. People v. Renfro, 117 P.3d 43, 48 (Colo.App.2004). Where the trial court rejects a defendant's tendered instructions, the harmless error standard applies. Brown v. People, 239 P.3d 764, 767 (Colo.20...
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