People v. Frysig, 80SA76

• Decision Date: 26 May 1981
• Docket Number: No. 80SA76,80SA76
• Citation: 628 P.2d 1004
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald FRYSIG, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1004

628 P.2d 1004

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald FRYSIG, Defendant-Appellant.

No. 80SA76.

Supreme Court of Colorado, En Banc.

May 26, 1981.

Rehearing Denied June 15, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Susan P. Mele-Sernovitz, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Greg Walta, Colorado State Public Defender, Michael J. Gallagher, Deputy State Public Defender, Denver, for defendant-appellant.

LOHR, Justice.

The defendant, Donald Frysig, was convicted of attempt to commit first-degree sexual assault, sections 18-2-101(1), C.R.S.1973 (1978 Repl.Vol. 8) and 18-3-402, C.R.S.1973 (1978 Repl.Vol. 8), as the result of a jury trial. In this appeal from that conviction, the defendant challenges the adequacy of the jury instructions and presents a question of first impression concerning the construction of our criminal attempt statute. Finding that the instructions reflect a correct interpretation of the law and that they are otherwise adequate, we affirm the judgment of conviction.

The defendant and the victim were friends and had been acquainted for most of the victim's lifetime. The defendant was 41 years of age and the victim was 20. On the night of October 22, 1977, the victim met the defendant by chance at a bar in Lyons, Colorado. Together, they visited other bars in the area, after which the defendant requested that the victim drive him to his trailer. She agreed. Upon arrival at the trailer, the defendant invited the victim in for coffee and she accepted. Shortly after they entered the trailer the defendant started to make physical advances. When the victim resisted, the defendant took out a gun threatened to shoot her if she did not disrobe, and fired a shot into the floor of the trailer. He then attacked her again, this time holding her down and removing her clothing. The defendant ceased the attack, however, without inflicting penetration, when he was unable to obtain an erection. Later, the defendant drove the victim home. She subsequently reported the incident and the defendant was charged with attempted first-degree sexual assault.

At the conclusion of the People's case, and before the defense had presented any evidence, the trial court discussed its proposed jury instructions in chambers with both counsel. The proposed instruction defining the crime of attempt to commit first-degree sexual assault specified that the accused must intentionally engage in conduct constituting a substantial step toward the commission of first-degree sexual assault. The defendant objected to the absence of a definition of the term "intentionally," whereupon the prosecution suggested to the court that "intentionally" should be stricken from the proposed instruction because it was not consistent with the attempt statute, section 18-2-101(1), C.R.S.1973 (1978 Repl.Vol. 8). ¹ The court agreed and ordered the word "intentionally" removed from the instruction. Defense counsel noted his objection, stating that this deletion would permit the jury to convict the defendant of the crime of attempt without finding that he had any culpable mental state.

After the defense presented its case, the jury was instructed. Although the defendant did not testify, the court included an instruction on the defendant's theory of the case. His theory was that, while the victim had accompanied him to his trailer on the night in question, there had been no assault of any kind. ² The jury returned a verdict of guilty and the defendant appealed.

I.

The defendant contends that an essential element of criminal attempt is an intent to commit the criminal offense to which the attempt is directed (the underlying offense). He urges that any other interpretation would cause the statute to violate due process of law. The defendant claims that the jury was not instructed on this element, and that consequently the instructions were fatally deficient. We agree that the criminal attempt statute must be construed to require an intent to commit the underlying offense, in this case first-degree sexual assault, and so do not reach the constitutional question. Our review of the instructions, however, satisfies us that they were adequate to advise the jury that such intent must be established in order to support a verdict of guilty.

An examination of the recent historical development of the criminal attempt statute is helpful in determining its meaning. The genesis of that statute is the Colorado Criminal Code, enacted by the General Assembly in 1971, which effected an extensive revision of the substantive criminal laws of this state. Colo.Sess.Laws 1971, ch. 121, 40-1-101 at 388 et seq. The proscription of criminal attempt appears at Colo.Sess.Laws 1971, ch. 121, 40-2-101 at 414, which provides in relevant part as follows:

"(1) A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he intentionally engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor's intent to complete the commission of the offense.

(3) It is an affirmative defense to a charge under this section that the defendant abandoned his effort to commit the crime or otherwise prevented its commission under circumstances manifesting the complete and voluntary renunciation of his criminal intent. " (Emphasis added.)

In 1977 subsection (1) was amended to its present form by striking the word "intentionally" from the language defining attempt, and by striking the word "intent" and inserting in its place the word "purpose" in the sentence defining "substantial step." ³ Colo.Sess.Laws 1977, ch. 224, 18-2-101 at 960. The defendant urges that these changes cannot be construed to eliminate from the elements of criminal attempt the requirement that the defendant intend to commit the underlying offense. We agree with this contention.

For an actor to be guilty of criminal attempt, it has traditionally been necessary that he intend to perform acts which, if completed, would constitute the underlying offense. W. La Fave and A. Scott, Jr., Handbook on Criminal Law, § 59 (1972) summarizes at 423:

"The crime of attempt, a relatively recent development of the common law, consists of:

(1) an intent to do an act or to bring about certain consequences which would in law amount to a crime; and

(2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation.... The primary purpose in punishing attempts is not to deter the commission of completed crimes, but rather to subject to corrective action those individuals who have sufficiently manifested their dangerousness."

In cases interpreting attempt statutes in effect prior to the enactment of the Colorado Criminal Code, we consistently have held that intent to commit the underlying offense ⁴ is an essential element of criminal attempt. Martin v. People, 179 Colo. 237, 499 P.2d 606 (1972); Allen v. People, 175 Colo. 113, 485 P.2d 886 (1971); see Lewis v. People, 124 Colo. 62, 235 P.2d 348 (1951); Martinez v. People, 111 Colo. 52, 137 P.2d 690 (1943). The criminal attempt statute as enacted originally in the Colorado Criminal Code has also been construed to require such intent. People v. Hernandez, Colo.App., 614 P.2d 900 (1980); see Darr v. People, 193 Colo. 445, 568 P.2d 32 (1977). Indeed, it is this purpose to cause harmful consequences, i. e., to perform those acts necessary to accomplish a completed crime, which forms an important part of the rationale for making attempt criminally punishable. See W. La Fave and A. Scott, Jr., supra, at 426; Enker, Mens Rea and Criminal Attempt, 1977 American Bar Foundation Research Journal, 845; Vol. 1 Working Papers of the National Commission on Reform of Federal Criminal Laws (1970) at 351-2 (hereinafter cited as Working Papers); Model Penal Code, § 5.01, Comment (Tent. Draft No. 10 1960) at 24.

The original formulation of criminal attempt in the Colorado Criminal Code was patterned after proposed federal legislation. See Study Draft of a New Federal Criminal Code (1970) at 61. In explaining the requisite intent for commission of the crime of attempt as defined in that proposed legislation, the National Commission on Reform of Federal Criminal Laws said: "Implicit in the notion of attempt is the requirement that whatever the person is doing is being done with the purpose of committing a crime." Vol. 1, Working Papers at 354. However, "... (E)xcept for the intentional conduct constituting the substantial step, the requisite culpability is that provided for in the definition of the offense." Id. The Colorado criminal attempt statute, like the proposed federal legislation on attempt, specifically makes reference to the underlying offense to prescribe the culpable mental state with which the planned acts are to be performed, by using the phrase "acting with the kind of culpability otherwise required for commission of an offense." Section 18-2-101(1), C.R.S.1973 (1978 Repl. Vol. 8). ⁵

The conclusion that as first enacted our present criminal attempt statute required an intent to commit the underlying offense is reinforced by the definition of "intentionally," the word originally used to describe the mental state with which the substantial step must be taken. See Colo. Sess.Laws 1971, ch. 121, 40-2-101 at 414. Colo.Sess.Laws 1971, ch. 121, 40-1-601(6) at 403 defines the word "intentionally":

" 'Intentionally'. A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious object is to cause that result or to engage in that conduct or when his actions are such as to give rise to a substantial certainty that such results will be produced." (Emphasis added.)

The "conduct"...