People v. Fichtner, 93SC127

• Citation: 869 P.2d 539
• Decision Date: 28 February 1994
• Docket Number: No. 93SC127,93SC127
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. John Clair FICHTNER, Respondent.
• Court: Supreme Court of Colorado

Page 539

869 P.2d 539

The PEOPLE of the State of Colorado, Petitioner, v. John Clair FICHTNER, Respondent.

No. 93SC127.

Supreme Court of Colorado,

En Banc.

Feb. 28, 1994.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Jonathan Arnold Abbott, Asst. Atty. Gen., Criminal Enforcement Section, Denver, for petitioner.

Edward R. Harris, Denver, for respondent.

Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to decide whether co-defendants are jointly responsible for restitution for a victim's damaged property and whether the trial court's failure to define "serious bodily injury" in its jury instruction on menacing with a deadly weapon constitutes plain error.

The People petitioned this court to review the decision of the court of appeals in People v. Fichtner, No. 91CA0246 (Colo.App. Dec. 17, 1992), holding that (1) a defendant is not jointly liable for restitution when the damage was caused by his co-defendant, and (2) the trial court committed plain error by failing to define "serious bodily injury." The trial court held that the defendant, John Clair Fichtner (Fichtner), was jointly responsible for the damage to a truck tire caused by shots from his co-defendant's shotgun fired during the course of their joint criminal activity. On the second issue, the trial court correctly instructed the jury on the elements of the offense of menacing, but did not specifically define the term "serious bodily injury" in one of the elements.

We reverse the rulings of the court of appeals on both issues and hold that a co-defendant is jointly responsible for restitution when he is also a complicitor in the crime, and that the trial court's omission of the definition of "serious bodily injury" from the jury instructions, although erroneous, did not rise to the level of plain error. Accordingly, we reverse and remand to the court of appeals with directions to reinstate the judgment of conviction, sentence, and order to make restitution imposed by the district court.

I.

In February 1990, Robert Bement (Bement) hired the defendant, John Fichtner (Fichtner), as a contract employee with his house-moving business. Bement arranged for Fichtner to live in a trailer on property on which Bement kept several pieces of equipment he used in his business. Bement did not own the property. The land was owned by Gerald Fisher, who had leased it to George Hatting. Bement was to pay Hatting rent in exchange for his and Fichtner's use of the property. However, Hatting fell behind in his rent payments to Fisher. Ultimately, Hatting left town without telling Fisher that he had permitted Bement and Fichtner to use the property. Eventually, Fisher learned that Fichtner was living on the property, and on April 24, 1990, Fichtner received a notice of eviction. According to Fichtner, Fisher's attorney told him not to remove anything from the property.

On April 26, 1990, Bement, accompanied by his spouse, Harriet Firestone, and her son, Steven Firestone, attempted to remove their property from the premises. While they were doing so, Fichtner, his co-defendant, William Lesney, and another man who was not charged arrived on the scene. Fichtner carried an axe handle; Lesney a shotgun. Fichtner told Bement to leave the premises. Bement refused, fearing that Fichtner would steal his equipment and sell it. Lesney then struck Bement in the face with the butt of the shotgun, causing Bement to fall. As Bement tried to rise, Fichtner hit him several times with the axe handle on the back, neck, and groin.

Harriet Firestone filmed all or most of the episode with a hand-held camcorder. She had been using the camcorder to create a record of the items that she, her spouse, and son were removing from the premises. When the defendants arrived, she continued to film them, including all or part of the beating they inflicted on Bement. The video tape was admitted into evidence.

During the incident, Fichtner threatened Ms. Firestone with the axe handle and ordered her to put her camcorder down. She complied by holding it at her side, and apparently allowed it to continue recording. While Fichtner beat Bement, Lesney pointed his shotgun at Steven Firestone to prevent him from coming to his stepfather's aid. At one point, Lesney shot at him, hitting the dirt in front of Steven Firestone and causing either the pellets from the gun or pebbles on the ground to strike Steven Firestone on the legs.

After the assault, Steven Firestone helped Bement into their truck. Lesney then shot and punctured a tire on the truck. As Bement and his family were driving away, Lesney fired another shot toward the truck, but did not hit it.

Fichtner and Lesney were charged with second-degree assault ¹ and felony menacing, ² and were tried jointly. Their defense was that they were attempting to prevent an unlawful trespass and defend Fichtner's property, which was also on the premises. The court instructed the jury on second-degree assault, on the lesser included offense of third-degree assault, and on menacing with a deadly weapon. ³ The court gave the following instruction on the menacing charge:

The elements of the crime of menacing with a deadly weapon are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. by threat or physical action,

4. knowingly placed or attempted to place another person in fear of imminent serious bodily injury,

5. by use of a deadly weapon.

After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of menacing with a deadly weapon.

After considering all the evidence, if you decide the prosecution has failed to prove each of the elements beyond a reasonable doubt, you should find the defendant not guilty of menacing with a deadly weapon.

When it instructed on the menacing charge, however, the court did not define the term "serious bodily injury," although it did define the term "bodily injury" ⁴ as part of the assault instructions.

Fichtner was convicted of third-degree assault against Bement and menacing against Harriet Firestone. ⁵ The trial court sentenced Fichtner to eight years' incarceration for the menacing and to a concurrent one-year term for third-degree assault, and ordered him to pay restitution in the amount of $2,616.25 for Bement's medical bills and the damage to Bement's truck tire. The court of appeals reversed and remanded for a new trial, ruling that the trial court's failure to define "serious bodily injury" amounted to plain error, and that Fichtner was not liable for the $250.00 cost of replacing Bement's truck tire because he did not fire the shot that punctured it.

We granted certiorari to decide whether co-defendants are jointly responsible for restitution for a victim's damaged property and whether the trial court's failure to define the term "serious bodily injury" in a set of otherwise proper jury instructions constitutes plain error.

II.

We first address whether Fichtner is liable for restitution payments for the damage to Bement's truck tire even though his co-defendant fired the shot that punctured the tire. As part of a criminal sentence, a court must order a defendant to pay restitution to a crime victim. Section 17-2-201(5)(c)(I), 8A C.R.S. (1986), provides:

As a condition of every parole, the board shall provide that the offender make restitution to the victim of his conduct or a member of the victim's immediate family for the actual damages which were sustained.

(Emphasis added.) Section 16-11-102(4), 8A C.R.S. (1986), states in part:

[T]he amount of restitution shall be fixed by the court at the time of sentencing and shall be endorsed upon the mittimus.

Finally, section 16-11-204.5(1), 8A C.R.S. (1986), provides:

As a condition of every sentence to probation, the court shall provide that the defendant make restitution to the victim of his conduct or to a member of the victim's immediate family for the actual damages which were sustained. Such restitution shall be ordered by the court as a condition of probation.

(Emphasis added.) The court's duty to fix the amount of restitution is not confined to sentences to probation but applies equally to sentences to imprisonment. People v. Johnson, 780 P.2d 504 (Colo.1989). However, if a sentence of incarceration is ordered, a court does not also order the defendant to pay restitution during the period of incarceration. Instead, at the time of sentencing, the court sets the amount of restitution for later consideration by the parole board. See People v. Powell, 748 P.2d 1355 (Colo.App.1987).

The issue in this case is whether, for restitution purposes under the statute, Bement is a victim of Fichtner's conduct, even though the tire was damaged as a result of the shot from Lesney's gun. The court of appeals applied our decision in People v. Deadmond, 683 P.2d 763 (Colo.1984), and concluded that Fichtner was not liable for restitution. The issue in Deadmond was whether the Colorado statute, then in effect, authorized restitution to a deceased victim's husband. We found that the statute did not explicitly provide for restitution to anyone other than the victim: "Payment of restitution is authorized only as to the victim of a defendant's conduct, and only for the actual pecuniary damage the victim sustained as the direct result of the defendant's conduct." Id. at 774. Relying on Deadmond, the court of appeals concluded that the damage to the tire was not the direct result of Fichtner's conduct because there was no evidence that he shot the truck tire. The court of appeals' reliance on Deadmond to decide the restitution issue in this case involving two defendants was in error. Deadmond only limited the class of those who can receive restitution payments; it...