People v. Walden, No. 08CA0859.

• Decision Date: 25 June 2009
• Docket Number: No. 08CA0859.
• Citation: 224 P.3d 369
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brent WALDEN, Defendant-Appellant.
• Court: Colorado Court of Appeals

224 P.3d 369

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brent WALDEN, Defendant-Appellant.

No. 08CA0859.

Colorado Court of Appeals, Div. II.

June 25, 2009.

As Modified on Denial of Rehearing July 23, 2009.

John W. Suthers, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Ryann S. Hardman, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BERNARD.

Defendant, Brent Walden, appeals the judgment of conviction entered upon jury verdicts finding him guilty of first degree criminal trespass and harassment. We affirm.

I. Background

Defendant and the victim were married and had four children. The couple had some marital difficulties, and they separated in December 2006. The victim moved with the children into a duplex apartment.

Defendant and the victim continued to see each other. Defendant would occasionally come to her apartment to spend time with their children.

At trial, defendant and the victim offered conflicting testimony about the scope of defendant's permission to visit the apartment. The victim said that defendant had only been invited to the apartment on a few occasions to visit the children or to help her move some of her belongings. She stated that she argued with defendant frequently after the separation, and that she eventually told defendant that "he could not come past the doorway" when he came to visit the children. During one weekend visit with the children, the victim was napping. She awakened when defendant was touching her face. Startled and frightened, she told defendant to leave and informed him that "he wasn't allowed to come in [her] home."

Defendant testified that "there was never any discussion that [he] was not allowed in her house." He said that the victim asked him on several occasions to take care of her dog. He stated that he was allowed to enter the victim's home through the side door, which was left unlocked, to let the dog out.

The victim testified that, on February 18, 2007, she made plans to have dinner with her boyfriend. Defendant telephoned her and asked her what she was going to do that evening. The victim replied it was "none of [defendant's] business." This response led to an argument over the victim's unwillingness to discuss her plans for the evening.

The victim and her boyfriend dined together, returned to the victim's apartment at about 10:30 p.m., and went into the bedroom. A bit later, the doorbell rang. The victim did not answer, and she then heard someone banging on the door. Suspecting that defendant was the visitor, she decided not to answer the door in order to avoid an argument.

The victim then heard footsteps inside her apartment. Fearing that defendant had gotten into the apartment through the unlocked side door, she went to the bedroom door to persuade him to leave. Defendant opened the door and entered the bedroom.

Defendant grabbed the victim, "threw [her] out of his way," and walked into the bathroom, where the boyfriend had retreated. Defendant pursued the boyfriend into a walk-in closet, and punched him in the face.

The victim saw defendant standing over her boyfriend. They were struggling. The boyfriend's nose was bleeding. She tried to pull defendant off of her boyfriend, but defendant threw her into a wall. At one point, he choked her. In order to break free, she punched defendant in the face.

The victim repeatedly asked defendant to leave. She broke free from his grasp, went to the kitchen, and called the police. Defendant then apologized to the boyfriend for hitting him, shook his hand, and left. A sheriff's deputy arrived within a few minutes, but defendant was gone.

According to defendant's testimony, he attended a sporting event with some friends on the evening of this incident. They went to a restaurant, and defendant left to go home at 8 p.m. During his drive, he telephoned the victim.

Upon arriving home, defendant took an Ambien pill, which his doctor had prescribed for him so that he could sleep better. Notably, during this same period, defendant had also been prescribed another medication to help him cope with work-related stress. Against the advice of his physician, defendant had suddenly stopped taking the medication a few days earlier, without gradually weaning himself off of it.

After taking the pill, defendant retired to his room for the night and went to sleep. He testified that the next thing he recalled was waking up the next morning at a friend's house. He noticed that he had a fresh black eye. He called his mother, and said that he had been in a fight with the victim.

The victim's father then called defendant, and told him that the police were looking for him. Defendant called the police and arranged to meet a sheriff's deputy. He executed a written statement in which he stated that his only recollection of the night before was going to the sporting event, driving home, and going to bed.

Defendant was charged with second degree burglary under section 18-4-203(2)(a), C.R.S.2008; two counts of third degree assault under section 18-3-204, C.R.S.2008; first degree criminal trespass under section 18-4-502, C.R.S.2008; and harassment under section 18-9-111(1)(a), C.R.S.2008.

At trial, defendant did not dispute committing the acts underlying the offenses, but he asserted the defense of involuntary intoxication. He argued that he did not act intentionally or knowingly, and, therefore, he should not be found criminally liable for his actions.

The prosecution completed its case at about 4 p.m. on the first day of trial. Before inviting defendant to present his case, the trial court advised him, outside of the jury's presence, of his right to testify or not to testify. See People v. Curtis, 681 P.2d 504, 514 (Colo.1984). The court asked defendant whether he had "made a decision about whether or not [he] wish[ed] to testify." Defendant responded, "I do wish to testify." After confirming with defendant that he had consulted with counsel about this decision, and that he was not under the influence of any intoxicants, the trial court found that defendant had decided to testify without any coercion, and had done so knowingly, voluntarily, and intelligently.

Next, the court informed the parties that it would take a short recess, after which it would call the jury back into the courtroom. The court inquired whether defendant's first witness, an expert who would testify about involuntary intoxication, would be available after the break to testify. Defense counsel replied that he had not anticipated that the prosecution would complete its case before the end of the first day of trial and, due to scheduling constraints, the expert would not be available until the next morning, at the earliest.

The court then stated that, to make use of the remaining time in the afternoon, defendant would be expected to testify after the recess. Defense counsel objected, expressing his preference that defendant testify after the expert because defense counsel wanted the expert to provide certain information before the jury heard from defendant. Defense counsel did not tell the court that defendant might change his mind about testifying based on his perception of the effectiveness or ineffectiveness of the expert's testimony. The court replied that it was "not wasting [the] jury's afternoon doing nothing." However, the court added that defendant could testify twice: once in the afternoon; and a second time on the following day after the expert had completed her testimony.

The court then ordered defendant to begin his testimony that afternoon. Defendant testified, but he declined the court's invitation to testify a second time after the expert.

Defendant's expert, a psychiatrist, testified the next day. She said that, because of a combination of three factors — the ingestion of several alcoholic drinks at dinner; the effect of defendant's stopping the antidepressant medication abruptly; and the effect of the Ambien pill — defendant became involuntarily intoxicated. She stated that it was her opinion that defendant was not aware or fully conscious during the events at the victim's apartment, and, therefore, he could not have acted intentionally or knowingly.

At one point during the expert's testimony on redirect examination, defense counsel inquired whether it was "more likely or more probable that a person who is non-violent would commit violent acts while on the drug than without ..." The trial court interrupted, stating that the question was improper because it sought to elicit inadmissible propensity evidence under CRE 404(b). Defense counsel changed course in his questioning, did not express any disagreement with the court's ruling, and did not make an offer of proof about what the answer to his question would have been.

During the instruction conference, the court rejected defendant's request for a jury instruction on the affirmative defense of mistake of fact. The court included an instruction on involuntary intoxication, along with the defense's requested instruction on voluntary intoxication. The court did not provide a definition of the words "voluntary" and "involuntary" in the instructions, and defendant did not ask that such definitions be included.

Defense counsel, in his closing argument, asked the jury to acquit defendant of all charges because defendant was involuntarily intoxicated, and he therefore could not form the intent necessary to commit any of the charged offenses. According to defense counsel, defendant was unaware that the combination of drinking the alcoholic drinks, ceasing the antidepressant medication, and taking the Ambien pill would put him into a hypnotic state, during which he would enter the victim's apartment and assault her and her boyfriend. Alternatively, defense counsel contended that defendant was voluntarily intoxicated by the...