People v. Osborne, 96CA0776

• Decision Date: 30 April 1998
• Docket Number: No. 96CA0776,96CA0776
• Citation: 973 P.2d 666
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael R. OSBORNE, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 666

973 P.2d 666

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael R. OSBORNE, Defendant-Appellant.

No. 96CA0776.

Colorado Court of Appeals,

Div. I.

April 30, 1998.

Rehearing Denied June 11, 1998.

Certiorari Denied March 22, 1999. ^*

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Kathleen M. Byrne, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAVIDSON.

Defendant, Michael R. Osborne, appeals from the judgments of conviction entered upon jury verdicts finding him guilty of stalking, false reporting, harassment, first degree sexual assault, second degree kidnapping, and conspiracy. We affirm in part, vacate in part, and remand.

According to the prosecution, defendant began harassing and stalking the victim and her daughter after the daughter refused to date him. Defendant also sent sexually explicit and threatening letters to them and to a friend of the victim's family. Certain letters threatened revenge against the victim for keeping defendant and the daughter "apart."

The victim was kidnapped as she left work, driven to a remote location, and sexually assaulted. When the victim reported the assault to the police, she named defendant as the person who had assaulted her.

Defendant, when questioned concerning the incident, initially claimed that he had talked to two men who had planned the assault with him and had committed the assault on the victim. After further investigation, the police determined that the two men could not have committed or been involved in the assault. In the course of their investigation, the police also determined that defendant was ostensibly in boot camp in Oklahoma at the time of the assault.

At trial, the prosecution presented two theories: 1) that defendant surreptitiously left boot camp, traveled to Colorado, and committed the assault himself; or 2) that defendant conspired with and assisted another, unknown person who committed the assault.

The jury determined that defendant was guilty of first degree sexual assault and second degree kidnapping as a complicitor, and also found him guilty of the other offenses noted above.

I.

Defendant first contends that the trial court erred in instructing the jurors concerning complicity on the charges of first degree sexual assault and second degree kidnapping. He argues that the evidence was insufficient to support giving this instruction and that the instruction on complicity was incorrect as a matter of law. We disagree with both contentions.

Complicity is a theory by which an accused may be held criminally liable for an offense committed by another. A person may be found guilty of an offense as a complicitor if, "with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense." Section 18-1-603, C.R.S.1997; Bogdanov v. People, 941 P.2d 247 (Colo.1997).

If the evidence presented establishes that two or more persons were jointly engaged in the commission of a crime, then it is appropriate for the trial court to instruct the jury on complicity. People v. Calvaresi, 198 Colo. 321, 600 P.2d 57 (1979).

Here, the evidence established that a person had kidnapped and assaulted the victim. Further, the evidence showed that defendant had sent letters to the victim and her daughter, before and after the assault, containing details of the assault, such as when it would occur and how it would be committed, that were not known publicly. Additionally, defendant made statements indicating that he knew the identity of the person who committed the assault.

In light of this evidence, the jury could properly determine that defendant was involved in the planning and commission of the kidnapping and assault. Accordingly, there was sufficient evidence to support instructing the jury on complicity, and thus, the trial court did not err in so doing.

We also reject defendant's assertion that the complicity instruction given by the trial court was incorrect as a matter of law.

The instruction on the theory of complicity read, in pertinent part:

To be guilty as a complicitor, the following must be established beyond a reasonable doubt:

1. A crime must have been committed

2. Another person must have committed all or part of the crime

3. The defendant must have had knowledge that the other person intended to commit all or part of the crime

4. The defendant did intentionally aid, abet, or advise the other person in the commission or planning of the crime ... (emphasis added)

Defendant did not object to this instruction at the time it was given and so we review it for plain error. See Wilson v. People, 743 P.2d 415 (Colo.1987). Jury instructions which do not undermine the fundamental fairness of a trial so as to cast doubt on the reliability of the verdict are not plain error. Bogdanov v. People, supra.

In Bogdanov, the supreme court distinguished between those cases in which two or more persons jointly commit a crime by each performing a part of the offense and those cases in which a principal commits the entire crime and the complicitor aids and abets in that crime. In this latter circumstance, the type at issue here, if the principal committed the crime in its entirety and the complicitor did not perform any of the elements of the offense, then the inclusion of the "all or part" language of the instruction is superfluous and any error is harmless. See Bogdanov v. People, supra.

Here, the jurors were instructed to determine whether defendant knew that the other person intended to commit the underlying offenses and that defendant intended his actions to aid and abet that person in committing those offenses. By its verdict, the jury necessarily found that defendant was not present during the offense but knew that another person intended to kidnap and assault the victim. Further, in order also to find him guilty of complicity, the jury necessarily determined that he had the required mental state for the underlying offenses of which he was convicted. Thus, although the "all or part" language of the complicity instruction was error, its inclusion in the jury instruction was not plain error.

II.

Defendant next contends that, even if the evidence was sufficient to support his conviction for first degree sexual assault as a complicitor, it was insufficient for the jury to determine that, as an aggravating circumstance, he was physically aided and abetted by another in the commission of the sexual assault. Thus, he argues, as to this offense, he should have been sentenced, not for a class 2 felony, but for a class 3 felony. We agree.

Under § 18-3-402(1)(b), C.R.S.1997, one who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault in the first degree if the actor causes the victim to submit by threat of imminent death, serious bodily injury, extreme pain, or kidnapping, to be inflicted upon anyone, and the victim believes that the actor has the present ability to carry out these threats. And, under § 18-3-402(3)(a), C.R.S.1997, sexual assault in the first degree is increased from a class 3 felony to a class 2 felony if, "in the commission of the sexual assault, the actor is physically aided or abetted by one or more persons."

The "actor," as that term is used in § 18-3-402(3), C.R.S.1997, can mean either the defendant or another participant in the sexual assault. See People v. Walford, 716 P.2d 137 (Colo.App.1985) (principles of complicity apply to § 18-3-402(3)). Accordingly, § 18-3-402(3)(a) will apply if a defendant, while committing the sexual assault, is physically aided or abetted by another person, or if a person other than the defendant commits the sexual assault and is physically aided or abetted by the defendant or another person.

Here, the jury was instructed that "the actor" was the defendant. And, the jury found, by special interrogatory, that defendant was guilty of first degree sexual assault as a complicitor and that the assault was accompanied by the aggravating circumstance that "the actor was physically aided or abetted in the commission of the assault."

Viewed in the light most favorable to the verdict, the evidence established that an unknown person kidnapped and sexually assaulted the victim. However, there was no evidence that any other person was present during the assault on the victim, and, by its verdict, the jury necessarily determined that defendant could not have been physically present during the commission of the offense.

Because the jury was instructed that defendant was "the actor," and because there was no evidence of any acts of anyone, other than the principal, which could be considered as physically aiding and abetting during the commission of the sexual assault, defendant asserts that the only physical act which could have constituted "aiding and abetting," according to the jury's verdict, was the commission, by the principal, of the sexual assault itself. Accordingly, defendant argues, the evidence was insufficient to apply the statutory aggravator because the first degree sexual assault itself, committed here by the principal, cannot be the means of physically aiding or abetting for the purposes of enhancing defendant's conviction for that offense under § 18-3-402(3)(a). We agree.

Our primary task in construing a statute is to give effect to the intent of the General Assembly. To determine such intent, we look first to the statutory language. A statute must be read and considered as a whole and should be interpreted to give consistent, harmonious, and sensible effect to all its parts. People v. District Court, 713 P.2d 918 (Colo.1986).

Applying these principles of...