People v. Williams, No. 96CA0778

Docket NºNo. 96CA0778
Citation961 P.2d 533
Case DateDecember 11, 1997
CourtCourt of Appeals of Colorado

Page 533

961 P.2d 533
97 CJ C.A.R. 3179
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
David Anthony WILLIAMS, Defendant-Appellant.
No. 96CA0778.
Colorado Court of Appeals,
Div. V.
Dec. 11, 1997.
Rehearing Denied Jan. 22, 1998.
Petition for Cert. Denied and
Cross-Petition Granted Aug. 24, 1998.

Page 534

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Elizabeth Rohrbough, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge KAPELKE.

Defendant, David Anthony Williams, appeals from a judgment of conviction entered on a jury verdict finding him guilty of attempted robbery, first degree criminal trespass,

Page 535

and third degree assault. He challenges the sufficiency of the information and also urges that the trial court erred by failing to instruct the jury, sua sponte, on the defense of intoxication and by giving an improper jury instruction on the criminal trespass count. In addition, he asserts that reversal is required as a result of improper remarks made by the prosecution during closing argument. We affirm in part, reverse in part, vacate the sentence, and remand with directions.

According to the prosecution's evidence, on July 18, 1995, defendant and a companion had been drinking alcohol near a liquor store and asking customers for money. As the victim was walking from the liquor store to his car in the parking lot, defendant approached him and asked him for spare change. When the victim refused his request, defendant followed him to the car and tried to prevent him from shutting the car door. Defendant then hit the victim in the mouth, leaned into the car, turned off the ignition, and went through the victim's pockets and athletic bag. Nothing was taken. At that point defendant's companion came up to the passenger side of the car, and the victim received numerous additional blows to his head.

A security guard from the liquor store pulled defendant and his companion away from the victim's car and restrained defendant until the police arrived.

I.

Defendant contends that the count of the information charging first degree criminal trespass was fatally defective because it failed to allege the specific crime he intended to commit when he entered the victim's car. We agree.

The ultimate test for determining the sufficiency of an information is whether it is specific enough to enable a defendant to prepare his or her defense and to bar any further prosecutions for the same offense. People v. Hunter, 666 P.2d 570 (Colo.1983).

Although objections to the form of an information are waived if not raised prior to trial, People v. Hunter, supra, a substantive defect may be raised at any time in the proceedings because it is jurisdictional in nature. Crim. P. 12(b)(2); Gomez v. People, 162 Colo. 77, 424 P.2d 387 (1967).

Absent a clear and specific incorporation by reference, each count in an information must be judged independently. Martinez v. People, 163 Colo. 503, 431 P.2d 765 (1967). An information that fails to allege an essential element of the crime charged is fatally defective, rendering a conviction on such charges void. Gomez v. People, supra. See also People v. Garner, 187 Colo. 294, 530 P.2d 496 (1975).

Here, the first degree criminal trespass count of the information alleged that defendant entered the motor vehicle of another "with the intent to commit a crime therein." It does not specify, however, what crime defendant intended to commit.

The pertinent portion of the first degree criminal trespass statute, § 18-4-502, C.R.S.1997, provides that: "A person commits the crime of first degree criminal trespass if such person ... enters any motor vehicle ... with intent to commit a crime therein."

Our supreme court has held that informations charging burglary are fatally defective if they fail to enumerate the ulterior crime that the defendant intended to commit. Gomez v. People, supra; Martinez v. People, supra.

The criminal trespass charge here is defective for that same reason. Like burglary, criminal trespass requires an intent to commit an ulterior crime; however, the criminal trespass count here failed...

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2 practice notes
  • People v. Williams, No. 98SC109.
    • United States
    • Colorado Supreme Court of Colorado
    • June 28, 1999
    ...Justice HOBBS delivered the Opinion of the Court. The prosecution challenges the court of appeals published opinion, People v. Williams, 961 P.2d 533 (Colo.App.1997) which held that an information charging a defendant with criminal trespass was deficient because it failed to state the ulter......
  • People v. Anderson, No. 98CA0119.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 30, 1999
    ...when it failed to instruct the jury that defendant's entry into the van must have been "unlawful." We disagree. In People v. Williams, 961 P.2d 533 (Colo.App.1997), rev'd on other grounds, 984 P.2d 56 (Colo.1999), a division of this court concluded that the same version of § 18-4-502 in que......
2 cases
  • People v. Williams, No. 98SC109.
    • United States
    • Colorado Supreme Court of Colorado
    • June 28, 1999
    ...Justice HOBBS delivered the Opinion of the Court. The prosecution challenges the court of appeals published opinion, People v. Williams, 961 P.2d 533 (Colo.App.1997) which held that an information charging a defendant with criminal trespass was deficient because it failed to state the ulter......
  • People v. Anderson, No. 98CA0119.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 30, 1999
    ...when it failed to instruct the jury that defendant's entry into the van must have been "unlawful." We disagree. In People v. Williams, 961 P.2d 533 (Colo.App.1997), rev'd on other grounds, 984 P.2d 56 (Colo.1999), a division of this court concluded that the same version of § 18-4-502 in que......

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