People v. Smith, Supreme Court Case No. 16SC313

• Docket Nº: Supreme Court Case No. 16SC313
• Citation: 416 P.3d 886
• Case Date: April 30, 2018
• Court: Supreme Court of Colorado

416 P.3d 886

The PEOPLE of the State of Colorado, Petitioner,
v.
Adam Isolano SMITH, Respondent.

Supreme Court Case No. 16SC313

Supreme Court of Colorado.

April 30, 2018

Attorneys for Petitioner: Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Law Office of Daniel H. Kyser, L.L.C., Daniel H. Kyser, Englewood, CO

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶ 1 In this case we consider two issues: (1) whether defendant Adam Isolano Smith waived or invited error with respect to his claim of a prejudicial simple variance when defense counsel stated that the proposed jury instructions were generally acceptable and (2) whether a jury instruction that does not identify the particular victim named in the charging document creates a simple variance warranting reversal when the jury could potentially have deemed either of two people to be the victim.¹ In light of our opinion in People v. Rediger, 2018 CO 32, 416 P.3d 893, also decided today, we conclude that Smith neither waived nor invited error with respect to his variance claim because the record does not indicate that he intentionally relinquished a known right or that he injected the alleged error into this case. Consequently, we review Smith's variance claim for plain error. Because we cannot say that the evidence presented at Smith's trial obviously would have allowed the jury to conclude that Smith menaced a victim not named in his charging document, however, we conclude that the trial court did not plainly err in instructing the jury without specifying the victim.

¶ 2 Accordingly, although we agree with the division that the doctrine of invited error does not bar appellate review of Smith's claim, we reverse the division's judgment.

I. Facts and Procedural History

¶ 3 Smith and his then-girlfriend were staying together in a hotel room at the Mt. Princeton Hot Springs Resort. After an argument, the girlfriend left the room and called the police for help in retrieving her belongings. A police officer arrived, and with the officer behind her, the girlfriend attempted to re-enter the room. As the girlfriend pushed open the door, which Smith had barricaded

416 P.3d 889

with furniture, she and the officer saw Smith standing with a handgun pointed at the partially open door. The girlfriend backed out of the door, and she and the officer retreated, the girlfriend to the side of the building and the officer to his patrol car. Smith later exited the room, and after a brief physical confrontation, the officer arrested him.

¶ 4 The People subsequently charged Smith with menacing-domestic violence related, among other counts. The menacing-domestic violence related charge alleged as follows:

On or about January 14, 2014, Adam Isolano Smith, by any threat or physical action unlawfully, feloniously, and knowingly placed or attempted to place [the girlfriend] in fear of imminent serious bodily injury by use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article was a deadly weapon, namely: Hand Gun; in violation of sections 18-3-206(1)(a)/(b) and 18-6-800.3, C.R.S.

¶ 5 The case proceeded to trial, and at trial, Smith admitted that he had pointed a gun at his girlfriend, but he explained that he had done so in self-defense because he was in imminent fear of his girlfriend or an intruder, in part because his girlfriend had attacked him earlier that day and on prior occasions. Smith further testified that he did not see the officer while he was holding the gun. Both the girlfriend and the officer testified that they had seen Smith holding the gun and that they were afraid when Smith pointed his gun in their direction.

¶ 6 Prior to instructing the jury, the trial court engaged in a discussion with counsel regarding the proposed jury instructions and verdict form. As pertinent here, during this discussion, Smith requested that the court insert the phrase "or another individual" into the self-defense instruction so that it read, "It is also the theory of the defense that Mr. Smith acted upon a reasonable belief that [the girlfriend] or another individual was going to use imminent and unlawful physical force upon him on January 14, 2014, due to the injuries already inflicted upon Mr. Smith by [the girlfriend]." The court included this modification in the final instructions. Otherwise, Smith did not object to the instructions or the verdict form. To the contrary, when asked whether the instructions that the court had shown him were acceptable, defense counsel stated, "They are acceptable, Judge."

¶ 7 The trial court ultimately instructed the jury that Smith was charged with a number of offenses, including "Menacing-domestic violence related." As to this charge, the court instructed the jury, in pertinent part, as follows:

The elements of the crime of menacing with a deadly weapon, as to Count 1 are:

1. that the defendant,

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

3. knowingly,

4. by threat or physical action,

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

6. by the use of a deadly weapon,

7. without the affirmative defense [of self-defense] in instruction number 28.

(Emphasis added.)

¶ 8 Consistent with the foregoing, the verdict form that the court provided to the jury required the jury to determine whether (1) Smith was guilty or not guilty of "Count 1, Menacing" and (2) whether, if the jury's verdict was guilty, the menacing was an act of domestic violence.

¶ 9 After deliberation, the jury found Smith guilty of "Count 1, Menacing," but it found that the prosecution had failed to prove that the menacing was an act of domestic violence.

¶ 10 Smith appealed, arguing, as pertinent here, that (1) the absence of a specified victim in the jury instruction on menacing, when the charging document specified the girlfriend as the victim, amounted to a simple variance and (2) this variance resulted in a risk of a non-unanimous verdict because some jurors might have found that the girlfriend was the victim while others might have found that the officer was the victim. The People responded that Smith had waived this claim and invited any error by requesting

416 P.3d 890

the addition of the "another person" language to the self-defense instruction and by acquiescing generally to the jury instructions.

¶ 11 In a unanimous, unpublished opinion, a division of the court of appeals reversed. People v. Smith, No. 14CA2164, 2016 WL 908929 (Colo. App. Mar. 10, 2016). The division concluded that Smith's general "acceptance" of the jury instructions did not invite the alleged error in those instructions and therefore did not bar appellate review of his variance claim. Id. at 4–5.² Proceeding then to review Smith's variance claim for plain error, the division concluded that the menacing jury instruction, when combined with the trial testimony and the prosecutor's rebuttal closing argument, in which the prosecutor argued that Smith "look[ed] pretty good for a guy who pointed a gun at a police officer," gave rise to a simple variance that prejudiced Smith's right to a unanimous verdict. Id. at 14. Perceiving plain error, the division thus reversed Smith's menacing conviction and remanded for a new trial on that count. Id. at 14–15.

¶ 12 The People petitioned for a writ of certiorari, and we granted that petition.

II. Analysis

¶ 13 We begin by considering whether Smith waived or invited error with respect to his variance claim. Concluding that he did not, we review this claim for plain error and proceed to decide whether the trial court plainly erred on the facts of this case.

A. Invited Error and Waiver

¶ 14 In Rediger, ¶¶ 34–38, which we have also decided today, we concluded that Rediger's general expression of...