People v. Williams, 96CA0778

Decision Date11 December 1997
Docket NumberNo. 96CA0778,96CA0778
Citation961 P.2d 533
Parties97 CJ C.A.R. 3179 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Anthony WILLIAMS, Defendant-Appellant. . V
CourtColorado Court of Appeals

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 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 to identify such crime.

The supreme court has further determined that the failure to allege the ulterior crime is a substantive defect and thus can be raised at any time in the proceedings. Gomez v. People, supra. Therefore, we reject the prosecution's contention that defendant is precluded from raising the issue for the first time on appeal.

We also reject the prosecution's argument that the other two counts of the information--alleging attempted robbery and assault- --adequately apprised defendant of the ulterior crimes he is alleged to have intended to commit. As noted above, in Martinez v. People, supra, the supreme court held that, absent an incorporation by reference to the other counts, each count of an information must be judged independently. Hence, the other charges set out in the information do not cure the deficiency in the criminal trespass count.

Furthermore, the prosecutor's reliance on People v. Jiron, 44 Colo.App. 246, 616 P.2d 166 (1980) is misplaced. There, a division of this court found that an information charging attempted burglary was sufficient because it recited the elements of the inchoate crime of attempt in the language of the statute. In determining that the information there was sufficient, however, the division distinguished the cases sustaining challenges to informations that charged burglaries, rather than attempts.

Here, the information charges a first degree criminal trespass, rather than an attempted criminal trespass. We thus find Jiron to be inapposite.

We therefore conclude that the first degree criminal trespass conviction must be reversed and the sentence vacated.

II.

Next, defendant contends that the trial court erred by failing to instruct the jury, sua sponte, on the affirmative defense of intoxication. We disagree.

Since the defendant did not request such an instruction in the trial court, the applicable standard of review is plain error. Crim. P. 52(b). Plain error exists only if, after reviewing the entire record, we can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the judgment of conviction. Wilson v. People, 743 P.2d 415 (Colo.1987).

Defendant argues that because there was evidence he was intoxicated at the time the crimes were committed, the trial court had a duty to instruct the jury on intoxication as a defense.

We find People v. Close, 867 P.2d 82 (Colo.App.1993) dispositive of this issue. There, as here, the defendant's theory of defense was that he had not committed the crime. Specifically, defendant's theory here was that it was his companion who had engaged in the criminal conduct. Pursuing an intoxication defense would have been inconsistent with that theory and the defense's trial strategy. Thus, because the defendant's...

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2 cases
  • People v. Williams, 98SC109.
    • United States
    • Colorado Supreme Court
    • 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
    • United States
    • Colorado Court of Appeals
    • September 30, 1999
    ...erred 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 ......
1 books & journal articles
  • APPENDIX B
    • United States
    • Colorado Bar Association Colorado Automobile Accident Litigation & Insurance Handbook (CBA) Appendix B
    • Invalid date
    ...relative is injured as a result of the use or operation of his own motor vehicle not actually covered . . . .'" [Emphasis in original.] 961 P.2d at 533. The trial court concluded that Martinez was not eligible for PIP coverage under C.R.S. § 10-4-707(1)(b) because he was the owner of the mo......

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