People v. Joosten

• Decision Date: 09 August 2018
• Docket Number: Court of Appeals No. 16CA0875
• Citation: 441 P.3d 14
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Leonard JOOSTEN, Defendant-Appellant.
• Court: Colorado Court of Appeals

441 P.3d 14

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Leonard JOOSTEN, Defendant-Appellant.

Court of Appeals No. 16CA0875

Colorado Court of Appeals, Division IV.

Announced August 9, 2018

Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Karen Mahlman Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by JUDGE BERGER

I. Introduction and Summary

¶ 1 This case requires us to address when a trial court may properly deny a defendant's theory of the case instruction, and when the wrongful denial of such an instruction requires reversal.

¶ 2 A jury convicted Leonard Joosten of second degree burglary, first degree criminal trespass, one count of third degree assault, and two counts of class 3 misdemeanor criminal mischief. Joosten appeals only the burglary conviction.

¶ 3 The trial court denied Joosten's tendered theory of the case instruction regarding the burglary charge, reasoning that the tendered instruction was nothing more than a denial of the elements of the charged crime. In view of that conclusion, the trial court did not work with defense counsel to craft an acceptable theory of the case instruction.

¶ 4 The supreme court has repeatedly and unambiguously held that a criminal defendant is entitled to a theory of the case instruction. See, e.g. , People v. Roman , 2017 CO 70, ¶ 15, 398 P.3d 134 ; People v. Nunez , 841 P.2d 261, 264-65 (Colo. 1992). None of the exceptions to that rule were applicable in this case. Nunez , 841 P.2d at 264-65. Accordingly, the trial court erred when it refused Joosten's tendered instruction, or alternatively, when it failed to work with Joosten's counsel to craft a permissible instruction. Nevertheless, because the error was harmless, we affirm the second degree burglary conviction.

¶ 5 Joosten also claims that the mittimus is incorrect as to the criminal mischief charges. We agree and direct that the mittimus be corrected to reflect that Joosten was convicted of class 3 misdemeanor criminal mischief, not class 2 misdemeanor criminal mischief.

II. Relevant Facts and Procedural History

¶ 6 The prosecution's evidence permitted the jury to find the following facts. Joosten and his girlfriend lived together and were in an intimate relationship for many years. When the relationship deteriorated, Joosten's girlfriend found a roommate. Joosten moved out of the apartment, but continued to "frequently" spend the night there. He also continued to keep at least some of his belongings at the apartment.

¶ 7 One morning, the roommate heard a knock on the door. As she looked through the door's peephole, Joosten kicked down the door and the door hit her in the face. Joosten entered the apartment and went into his girlfriend's bedroom. They argued and the roommate heard a "thud" followed by the girlfriend yelling for the roommate to call the police. Joosten told the roommate he would beat her if she called the police.

¶ 8 The roommate answered a phone call from her boyfriend, and Joosten left his girlfriend's room to attempt to grab the roommate's phone. During this confrontation, Joosten's girlfriend fled the apartment and the roommate's boyfriend called the police.

¶ 9 Joosten went back into his girlfriend's room, where he cut up her driver's license and bank card and cut the cords of her hair dryer and curling iron.

¶ 10 The police arrived shortly thereafter and arrested him.

¶ 11 The prosecution charged Joosten with second degree burglary, two counts of third degree assault (one involving his girlfriend and one involving the roommate), and two counts of criminal mischief.

¶ 12 Joosten's principal defenses to the burglary charge were that he had a possessory interest in the apartment and that his girlfriend invited him there. Supporting the invitation defense, the roommate testified that the day before the events at issue, Joosten's girlfriend had offered to wash Joosten's work clothes and suggested that he pick them up the next morning; but the roommate also testified that she was not sure whether the girlfriend later revoked this invitation. The girlfriend testified that she did not remember extending this invitation to Joosten.

¶ 13 The jury acquitted Joosten of the third degree assault charge involving the roommate, but convicted him of all the other counts and of first degree criminal trespass.¹ On appeal, he challenges only his conviction for second degree burglary and the alleged error in the mittimus relating to the criminal mischief charges.

III. There Was Sufficient Evidence to Convict Joosten of Second Degree Burglary

¶ 14 We first address Joosten's contention that the evidence was insufficient to convict him of second degree burglary, because if he is correct, further prosecution may be prohibited by constitutional prohibitions against double jeopardy. People v. Marciano , 2014 COA 92M-2, ¶ 42, 411 P.3d 831.

¶ 15 Joosten contends that the prosecution failed to prove beyond a reasonable doubt that he (1) relinquished his possessory interest in the apartment; (2) knew his invitation to enter the apartment was revoked; and (3) knew his entry was unlawful.

¶ 16 "The due process clauses of the United States and Colorado Constitutions prohibit the criminal conviction of any person except on proof of guilt beyond a reasonable doubt." Kogan v. People , 756 P.2d 945, 950 (Colo. 1988), abrogated on other grounds by Erickson v. People , 951 P.2d 919 (Colo. 1998). A reviewing court faced with a sufficiency challenge must determine whether the evidence, when viewed as a whole and in a light most favorable to the prosecution, is both substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty of the charge beyond a reasonable doubt. Dempsey v. People , 117 P.3d 800, 807 (Colo. 2005).

¶ 17 In determining whether the evidence is sufficient to sustain a conviction, we "must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence." People v. Duncan , 109 P.3d 1044, 1045-46 (Colo. App. 2004). Moreover, "the resolution of inconsistent testimony and determination of the credibility of the witnesses are solely within the province of the jury." Id. at 1046.

¶ 18 To support a burglary conviction, a jury must find beyond a reasonable doubt that the defendant "knowingly [broke] an entrance into, enter[ed] unlawfully in, or remain[ed] unlawfully after a lawful or unlawful entry in a building or occupied structure with intent to commit therein a crime against another person or property." § 18-4-203(1), C.R.S. 2017. "A person ‘enters unlawfully’ or ‘remains unlawfully’ in or upon premises when the person is not licensed, invited, or otherwise privileged to do so."

§ 18-4-201(3), C.R.S. 2017. "In determining whether the crime of burglary has been committed, the focus is upon the possessory rights of the parties[.]" People v. Hollenbeck , 944 P.2d 537, 538 (Colo. App. 1996).

¶ 19 Joosten argues that because he previously lived at the apartment, still frequently stayed there, and had left some of his possessions there, he maintained a possessory interest in the premises, precluding a conviction for burglary.

¶ 20 More specifically, relying on Hollenbeck , 944 P.2d at 539, Joosten argues that he had a possessory interest in the apartment because there was no evidence that he and his girlfriend had agreed to live separately and that he understood he had relinquished his possessory interest. Hollenbeck does not support Joosten's position.

¶ 21 In Hollenbeck , a division of this court recognized that an estranged spouse who had previously shared a residence with the victim could be convicted of burglarizing the former marital residence if the victim was in exclusive possession of the residence at the time of the alleged burglary. Id. The division held that, absent a restraining order or an order granting one party exclusive possession of the marital residence, whether one spouse had the sole possessory interest "depends on whether the evidence shows that both parties had decided to live separately." Id.

¶ 22 The Hollenbeck division concluded that there was sufficient evidence that the defendant had relinquished his possessory interest because (1) he had left the marital residence and taken most of his belongings; and (2) his wife had changed the locks, filed for divorce, and told him he was no longer welcome in the residence. Id. at 539-40.

¶ 23 Contrary to Joosten's argument, Hollenbeck supports our conclusion that sufficient evidence supported his burglary conviction. Although Joosten continued to stay at the apartment "frequently," like the defendant in Hollenbeck , he had taken many of his personal belongings out of the apartment. Id. at 539. The evidence established that Joosten always knocked before entering the apartment because he did not have keys to the apartment.² In any event, it is undisputed that Joosten gained entry on this occasion by kicking down the door. "This method of entry is inconsistent with any kind of permissive entry." People v. Johnson , 906 P.2d 122, 126 (Colo. 1995). A reasonable juror could easily infer that Joosten knew he did not have a possessory interest in the apartment when he forcibly entered it.

¶ 24 Joosten also separately argues that, even if there was sufficient evidence to prove that he did not have a possessory interest in the apartment, the evidence demonstrated that his girlfriend had consented to his entry because she had invited him to pick up his laundry from the apartment.

¶ 25 But the girlfriend testified that she did not remember extending this invitation to Joosten. Whether or not there was such an invitation was for the jury to determine. "[T]he resolution of inconsistent testimony and determination of the credibility of the witnesses are solely within the province of the jury." Duncan , 109 P.3d at 1046.

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