v.

• Decision Date: 19 June 2017
• Docket Number: Supreme Court Case No. 14SC340
• Citation: 2017 CO 70
• Parties: Petitioner: The People of the State of Colorado, v. Respondent: Darren Roman.
• Court: Colorado Supreme Court

2017 CO 70

Petitioner: The People of the State of Colorado,
v.
Respondent: Darren Roman.

Supreme Court Case No. 14SC340

Supreme Court of the State of Colorado

June 19, 2017

Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch's homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association's homepage at http://www.cobar.org.

ADVANCE SHEET HEADNOTE

Jury Instructions—Lesser Included Offenses—Harmless Error.

The People sought review of the court of appeals' judgment reversing Roman's conviction for first degree assault. See People v. Roman, No. 11CA172 (Colo. App. Mar. 20, 2014). The trial court instructed the jury on the lesser included offense of second degree assault committed by intentionally causing bodily injury with a deadly weapon, but it denied Roman's request for an additional lesser-included-offense instruction on second degree assault committed by recklessly causing serious bodily injury with a deadly weapon. The court of appeals reversed, concluding both that the trial court erred in denying Roman's requested additional lesser-included-offense instruction and that the error was not harmless.

The supreme court reverses the judgment of the court of appeals because in light of the evidence presented at trial and the instructions actually provided to the jury, there was no reasonable possibility that the failure to instruct on reckless second degree assault contributed to the defendant's conviction of first degree assault, and any error in that regard would therefore have been harmless.

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Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 11CA172

Judgment Reversed
en banc

Attorneys for Petitioner:
Cynthia H. Coffman, Attorney General
William G. Kozeliski, Assistant Attorney General
Denver, Colorado

Attorneys for Respondent:
Douglas K. Wilson, Public Defender
Nathaniel E. Deakins, Deputy Public Defender
Denver, Colorado

JUSTICE COATS delivered the Opinion of the Court.

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¶1 The People sought review of the court of appeals' judgment reversing Roman's conviction for first degree assault. See People v. Roman, No. 11CA172 (Colo. App. Mar. 20, 2014). The trial court instructed the jury on the lesser included offense of second degree assault committed by intentionally causing bodily injury with a deadly weapon, but it denied Roman's request for an additional lesser-included-offense instruction on second degree assault committed by recklessly causing serious bodily injury with a deadly weapon. The court of appeals reversed, concluding both that the trial court erred in denying Roman's requested additional lesser-included-offense instruction and that the error was not harmless.

¶2 In light of the evidence presented at trial and the instructions actually provided to the jury, there was no reasonable possibility that the failure to instruct on reckless second degree assault contributed to the defendant's conviction of first degree assault, and any error in that regard would therefore have been harmless. The judgment of the court of appeals is therefore reversed.

I.

¶3 Darren Roman was charged with attempted first degree murder and first degree assault, as the result of an incident in which the mother of his child suffered a knife wound to her neck and substantial cuts to her hands. He was convicted of first degree assault and sentenced to imprisonment for fifteen years.

¶4 The uncontested evidence at trial indicated that on June 7, 2009, the defendant and the victim were involved in a romantic relationship, shared an apartment, and had a son together. That day, while both individuals were at their home, the defendant

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discovered a series of romantic text messages on the victim's cell phone between the victim and another man, some of which discussed the victim's plans to end her relationship with the defendant. At trial, the victim and the defendant provided substantially different accounts of what happened following this discovery.

¶5 The victim's testimony at trial and her statements made to the police shortly after the incident indicated that the defendant reacted angrily upon seeing the text messages and attacked her with a knife, threatening to kill her, pinning her on her bed, and slicing her neck. Her statements and testimony further indicated that although she fought the defendant off, she was unable to fully close the bedroom door against him, and when he forced the knife through the remaining opening in the doorway, she grabbed the blade in an attempt to ward off further injury, cutting her hands in the process. The prosecution also presented medical evidence to the effect that the victim's neck wound came dangerously close to cutting her jugular vein or carotid artery, which might have proved fatal, and that her hand wounds were deep enough to cut tendons, permanently impairing both her feeling in, and use of, her hands.

¶6 The defendant testified on his own behalf, denying that he attacked or made any attempt to stab the victim. Instead, he testified that he threatened to kill himself with the knife he was holding for that purpose, and that it was the victim who taunted and pushed him, ultimately cutting her hands on the knife while physically attacking him. The defendant further testified that upon seeing that the victim had cut herself, he dropped the knife, which she then retrieved and used to stab him in the hand. The

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defendant's testimony and theory-of-the-case instruction denied that he cut the victim's neck or that she suffered any neck wound while he was present.

¶7 The trial court instructed the jury on the charged offenses, as well as the lesser included offenses, respectively, of attempted second degree murder and second degree assault committed by intentionally causing bodily injury with a deadly weapon. The defendant requested and was allowed an instruction embodying his theory of the case, which largely tracked his own testimony, denying that he caused any injury to the victim's neck, indicating that the victim's hands were injured accidentally when she pushed him and grabbed the knife he was holding, and indicating further that his own knife wound was caused by the victim when she picked up the knife and stabbed him with it. The defendant also tendered, among others, an instruction that presented the jury with the opportunity, if it were not satisfied that he was guilty of first degree assault, to find him guilty of either of two additional lesser included offenses. One of these additional lesser included offenses was an alternate way of committing second degree assault, by recklessly causing serious bodily injury to another person by means of a deadly weapon, and the other was third degree assault, committed by negligently causing bodily injury to another person with a deadly weapon. The trial court denied this instruction, finding that the evidence did not provide a rational basis to acquit of the charged offense and still convict of either of these two lesser offenses.

¶8 The jury returned verdicts of not guilty as to either attempted first or second degree murder. Rather than returning verdicts of not guilty of assault or finding the defendant guilty of only second degree assault, as its instructions permitted, however,

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the jury returned a verdict of guilty of first...