People v. Ferguson, No. 99CA1266.

• Docket Nº: No. 99CA1266.
• Citation: 43 P.3d 705
• Case Date: November 08, 2001
• Court: Court of Appeals of Colorado

43 P.3d 705

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Kenneth FERGUSON, Defendant-Appellant

No. 99CA1266.

Colorado Court of Appeals, Div. IV.

November 8, 2001.

Rehearing Denied February 21, 2002.

43 P.3d 706

Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee

David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Kenneth Ferguson, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree assault committed under a sudden heat of passion. Defendant also appeals the sentence imposed. We reverse the judgment, vacate the sentence, and remand for a new trial.

Defendant and the victim argued, exchanged racial epithets, and prepared to fight. According to the prosecution's evidence, when the victim put up his fists to fight, defendant pulled out a knife and cut the victim's neck. Defendant maintained that he had acted in self-defense.

Defendant was acquitted of the charged offense of attempted second degree murder and the lesser included offenses of attempted manslaughter and second degree assault. However, he was convicted of first degree assault under a sudden heat of passion and crime of violence.

I.

Defendant first contends the trial court erred in denying his motion for judgment of acquittal. According to defendant, there was insufficient evidence to support the jury's verdict because the prosecution failed to prove the victim suffered serious bodily injury. We disagree.

43 P.3d 707

When assessing the sufficiency of the evidence in support of a guilty verdict, "a reviewing court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of the accused's guilt beyond a reasonable doubt." People v. Sprouse, 983 P.2d 771, 777 (Colo.1999)

As relevant here, "[a] person commits the crime of assault in the first degree if ... [w]ith intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon." Section 18-3-202(1)(a), C.R.S.2001.

Serious bodily injury is defined as:

bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.

Section 18-1-901(3)(p), C.R.S.2001.

The victim testified that the cut to his throat was so deep that when he put his hand to the wound, his fingers "literally went in my neck." The physician who treated the victim in the emergency room testified that the laceration was six inches long and up to a third of an inch deep; that it "was roughly from the Adam's apple area anteriorly and extended back to about the line the ear canal"; and that the victim's external carotid vein was "completely severed."

This evidence and the inferences arising therefrom, when viewed in the light most favorable to the prosecution, were sufficient to prove beyond a reasonable doubt that the wound defendant inflicted on the victim posed a substantial risk of death or of protracted loss or impairment of the function of a part of the victim's body.

II.

However, we agree with defendant that a new trial is required because the self-defense instruction given by the trial court erroneously referred to the use of "deadly physical force" and because the error was not harmless.

Over defendant's objection, the trial court instructed the jury on self defense, as relevant here, as follows:

It is an affirmative defense to the offense of attempted second degree murder, first and second degree assault that [defendant] used physical force upon another person[:]

1. in order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by the victim, and

2. he used a degree of force which he reasonably believed to be necessary for that purpose.

Deadly physical force may be used only if the defendant reasonably believes a lesser degree of force is inadequate and;

The defendant has reasonable grounds to believe, and does believe, that he or another person is in imminent danger of being killed or receiving great bodily injury.

The trial court defined deadly physical force for the jury, again over defendant's objection, as "force, the intended, natural, and probable consequence of which is to produce death."

On appeal, the People concede — and we agree — it was error to instruct the jury concerning the use of deadly physical force in this case because the victim did not die. See § 18-1-901(3)(d), C.R.S.2001 ("`Deadly physical force' means force, the intended, natural, and probable consequence of which is to produce death, and which does, in fact, produce death." (emphasis added)); CJI Crim. 5:01(9) (1983)(same); CJI Crim. 7:17 (1983)(Notes on Use)(self-defense instruction concerning deadly physical force "should only be used if the victim dies").

Nevertheless, the People maintain that inclusion of the wrongly worded "deadly physical force" instructions in this case was harmless, given defendant's acquittal of other charges. However, contrary to the People's contention, the offenses of which defendant was acquitted do not compel the conclusion that the erroneous instructions constituted harmless error.

43 P.3d 708

A.

Instructional errors that do not affect a defendant's substantial rights or prejudice his or her defense are harmless. People v. Rodriguez, 914 P.2d 230 (Colo.1996); see Crim. P. 52.

Here, the jury acquitted defendant of attempted second degree murder, as well as the lesser included offenses of attempted manslaughter and second degree assault.

The trial court instructed the jury that the elements of attempted second degree murder, as relevant here, are:

1. That the defendant ...

2. knowingly,

3. engaged in conduct constituting a substantial step toward the commission of second degree murder,

4. attempting to cause the death of another person.

The trial court instructed the jury that the elements of attempted manslaughter, as relevant here, are:

1. That the defendant ...

2. recklessly,

3. attempted to cause the death of another person.

The elements of first degree assault, as relevant here, required that the People prove beyond a reasonable doubt that defendant intended to cause the victim serious bodily injury by means of a deadly weapon.

The trial court also instructed the jury that defendant's affirmative defense of self-defense applied to attempted second degree murder and first degree assault, but did not apply to attempted manslaughter.

In acquitting defendant of attempted second degree murder, the jury must have found that the prosecution failed to prove at least one element of that crime beyond a reasonable doubt, or alternatively, that the prosecution satisfied all of the above elements but defendant acted in self-defense. If the jury found an element was missing, for example, if it concluded defendant was not trying to kill the victim, the jury need not have even considered the self-defense issue. Thus, we simply cannot determine the manner in which the jury applied the self-defense instruction, if at all, and the effect of the trial court's erroneous instruction on deadly physical force.

Similarly, defendant's acquittal of attempted manslaughter allows us to assume the jury found the prosecution failed to prove at least one element of that...