People v. Skinner, 90CA0548

• Citation: 825 P.2d 1045
• Decision Date: 01 August 1991
• Docket Number: No. 90CA0548,90CA0548
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jimmy C. SKINNER, Defendant-Appellant. . IV
• Court: Court of Appeals of Colorado

Page 1045

825 P.2d 1045

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jimmy C. SKINNER, Defendant-Appellant.

No. 90CA0548.

Colorado Court of Appeals Div. IV.

Aug. 1, 1991.

Rehearing Denied Sept. 26, 1991.

Certiorari Denied Feb. 24, 1992.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Catherine P. Adkisson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Janet Fullmer Youtz, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge ROTHENBERG.

Defendant, Jimmy C. Skinner, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree sexual assault. We affirm.

I.

Defendant first contends that the evidence was insufficient to sustain his conviction. We disagree.

When assessing the sufficiency of the evidence, 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 substantial and sufficient to support a finding of the accused's guilt beyond a reasonable doubt. Kogan v. People, 756 P.2d 945 (Colo.1988).

Here, the victim testified that she performed fellatio on the defendant against her will and that her submission was achieved through threats. Her testimony was disputed by the defendant, but was obviously believed by the jury. See People v. Brassfield, 652 P.2d 588 (Colo.1982). Thus, there was a sufficient basis for the conviction of second degree sexual assault.

II.

Defendant also contends that the court erred in instructing the jurors by characterizing two misdemeanor charges which he requested as lesser included offenses of second degree sexual assault, rather than as lesser non-included offenses. We conclude that the error was harmless.

A.

LESSER INCLUDED OFFENSES

In People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974), our supreme court adopted the "statutory test" in determining when an offense is lesser included. The court held that the test is met when " 'the establishment of the essential elements of the greater necessarily establishes all of the elements required to prove the lesser....' " (emphasis in Rivera ).

In addition, § 18-1-408(5)(a), C.R.S. (1986 Repl. Vol. 8B) states that an offense is lesser included when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged." See also People v. Henderson, 810 P.2d 1058 (Colo.1991).

Either the prosecution or the defense is entitled to an instruction on a lesser included offense whenever there is a "rational basis for the jury to acquit the defendant of the original offense charged and convict the defendant of the lesser offense." People v. Rivera, supra. As to such offenses, the jury should be instructed that it may not consider the lesser included offense until it has decided to acquit on the original offense. See COLJI-Crim. No. 38:06 (1983).

Importantly, if an offense is characterized as "lesser included," the doctrine of merger applies which protects a defendant from being punished twice for one criminal act. See People v. Henderson, supra.

B.

LESSER NON-INCLUDED OFFENSES

There is no statute defining lesser non-included offenses, nor is there a set definition in the case law or the treatises. See generally 1 Wharton's Criminal Law § 24 (14th Ed.1978). An analysis of the reported cases suggests that a lesser non-included offense may be any offense lesser in severity than the original charged offense, provided that such lesser offense arises from the same facts leading to the original charge, and that such lesser offense also contains at least one element not contained in the charged offense. See, e.g., People v. Bustos, 725 P.2d 1174 (Colo.App.1986).

A lesser non-included offense instruction is tantamount to a defendant's theory of the case instruction. As our supreme court said in People v. Rivera, supra:

"[A] theory of the case instruction which permits the jury to find a defendant innocent of the principal charge and guilty of a lesser charge should be given when warranted by the evidence."

Thus, a defendant's request for a lesser non-included offense instruction is in the nature of a strategy. However, it is unlike an alibi defense, which essentially denies that the defendant committed the act charged, or an affirmative defense such as self defense, which basically "admits the doing of the act charged but seeks to justify, excuse or mitigate it." See People v. Huckleberry, 768 P.2d 1235 (Colo.1989).

Normally, by asking for a lesser non-included offense instruction, the defendant will deny the original charge, but admit committing a lesser offense which carries a less severe penalty. Here, for example, Skinner admitted the crime of patronizing a prostitute (a misdemeanor), but denied committing first or second degree sexual assault (felonies).

Adding somewhat to the confusion between lesser included and non-included offenses is the fact that the same legal standard is used to determine when the court should give either instruction. Thus, an instruction on a lesser non-included offense should be given "if there is a rational basis for the jury to acquit the defendant of the offense charged and simultaneously find him guilty of the lesser offense." People v. Bustos, supra.

Another important distinction is that both the prosecutor and the defendant may ask the court to instruct the jury on lesser included offenses; however a lesser non-included offense instruction may be given only if the defendant requests it or consents to it. The reason for this was stated in Rivera:

"[A lesser non-included offense instruction] is tantamount to the defendant's consent to an added count being charged against him and somewhat similar to the civil procedure rule permitting amendment of the pleadings to conform to the evidence.... Without such an instruction, the jury may be aware of the commission of a crime, not the principal charge, and yet convict the defendant of the greater crime."

The important point is that without proper instruction on a lesser non-included offense, the jury might not be aware that it has the option of acquitting the defendant on the greater charge and convicting him of a lesser charge.

Still another difference between lesser included and lesser non-included offenses is that § 18-1-408(1)(a), C.R.S. (1986 Repo. Vol. 8B) specifically precludes a jury from convicting on the original charged offense, and also convicting on a lesser included offense. This is the statutory equivalent of the doctrine of merger. See People v. Henderson, supra.

In contrast, no such statute precludes a jury or court from convicting a defendant of the original offense, and also convicting the defendant of any lesser non-included offense. Nor is there a logical or constitutional bar preventing such a result since the offenses contain different elements and the doctrine of merger does not apply. See People v....