     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               August 9, 2018

                               2018COA115

No. 16CA0875 People v. Joosten — Criminal Law — Jury
Instructions — Theory of the Case

     This case addresses when a trial court may properly deny a

defendant’s theory of the case instruction and when the wrongful

denial of such an instruction requires reversal.

     The division declines to follow People v. Marquez-Lopez, 952

P.2d 788, 791 (Colo. App. 1997), and People v. T.R., 860 P.2d 559,

561 (Colo. App. 1993) to the extent they conclude that elemental

instructions can substitute for a defendant’s proposed theory of the

case instruction. Those holdings conflict with the supreme court’s

decision in People v. Nunez, 841 P.2d 261, 264-65 (Colo. 1992).

     Notwithstanding the trial court’s refusal to give a theory of the

case instruction, the division affirms the defendant’s second degree

burglary conviction and directs the correction of the mittimus.
COLORADO COURT OF APPEALS                                         2018COA115


Court of Appeals No. 16CA0875
Adams County District Court No. 13CR3365
Honorable Thomas R. Ensor, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Leonard Joosten,

Defendant-Appellant.


                       JUDGMENT AFFIRMED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division IV
                         Opinion by JUDGE BERGER
                       Hawthorne and Miller*, JJ., concur

                          Announced August 9, 2018


Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Karen Mahlman Gerash,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
                   I.   Introduction and Summary

¶1    This case requires us to address when a trial court may

 properly deny a defendant’s theory of the case instruction, and

 when the wrongful denial of such an instruction requires reversal.

¶2    A jury convicted Leonard Joosten of second degree burglary,

 first degree criminal trespass, one count of third degree assault,

 and two counts of class 3 misdemeanor criminal mischief. Joosten

 appeals only the burglary conviction.

¶3    The trial court denied Joosten’s tendered theory of the case

 instruction regarding the burglary charge, reasoning that the

 tendered instruction was nothing more than a denial of the

 elements of the charged crime. In view of that conclusion, the trial

 court did not work with defense counsel to craft an acceptable

 theory of the case instruction.

¶4    The supreme court has repeatedly and unambiguously held

 that a criminal defendant is entitled to a theory of the case

 instruction. See, e.g., People v. Roman, 2017 CO 70, ¶ 15; People v.

 Nunez, 841 P.2d 261, 264-65 (Colo. 1992). None of the exceptions

 to that rule were applicable in this case. Nunez, 841 P.2d at 264-

 65. Accordingly, the trial court erred when it refused Joosten’s


                                   1
 tendered instruction, or alternatively, when it failed to work with

 Joosten’s counsel to craft a permissible instruction. Nevertheless,

 because the error was harmless, we affirm the second degree

 burglary conviction.

¶5    Joosten also claims that the mittimus is incorrect as to the

 criminal mischief charges. We agree and direct that the mittimus

 be corrected to reflect that Joosten was convicted of class 3

 misdemeanor criminal mischief, not class 2 misdemeanor criminal

 mischief.

             II.   Relevant Facts and Procedural History

¶6    The prosecution’s evidence permitted the jury to find the

 following facts. Joosten and his girlfriend lived together and were in

 an intimate relationship for many years. When the relationship

 deteriorated, Joosten’s girlfriend found a roommate. Joosten moved

 out of the apartment, but continued to “frequently” spend the night

 there. He also continued to keep at least some of his belongings at

 the apartment.

¶7    One morning, the roommate heard a knock on the door. As

 she looked through the door’s peephole, Joosten kicked down the

 door and the door hit her in the face. Joosten entered the


                                   2
  apartment and went into his girlfriend’s bedroom. They argued and

  the roommate heard a “thud” followed by the girlfriend yelling for

  the roommate to call the police. Joosten told the roommate he

  would beat her if she called the police.

¶8     The roommate answered a phone call from her boyfriend, and

  Joosten left his girlfriend’s room to attempt to grab the roommate’s

  phone. During this confrontation, Joosten’s girlfriend fled the

  apartment and the roommate’s boyfriend called the police.

¶9     Joosten went back into his girlfriend’s room, where he cut up

  her driver’s license and bank card and cut the cords of her hair

  dryer and curling iron.

¶ 10   The police arrived shortly thereafter and arrested him.

¶ 11   The prosecution charged Joosten with second degree burglary,

  two counts of third degree assault (one involving his girlfriend and

  one involving the roommate), and two counts of criminal mischief.

¶ 12   Joosten’s principal defenses to the burglary charge were that

  he had a possessory interest in the apartment and that his

  girlfriend invited him there. Supporting the invitation defense, the

  roommate testified that the day before the events at issue, Joosten’s

  girlfriend had offered to wash Joosten’s work clothes and suggested


                                     3
  that he pick them up the next morning; but the roommate also

  testified that she was not sure whether the girlfriend later revoked

  this invitation. The girlfriend testified that she did not remember

  extending this invitation to Joosten.

¶ 13    The jury acquitted Joosten of the third degree assault charge

  involving the roommate, but convicted him of all the other counts

  and of first degree criminal trespass.1 On appeal, he challenges

  only his conviction for second degree burglary and the alleged error

  in the mittimus relating to the criminal mischief charges.

 III.    There Was Sufficient Evidence to Convict Joosten of Second
                              Degree Burglary

¶ 14    We first address Joosten’s contention that the evidence was

  insufficient to convict him of second degree burglary, because if he




  1 On the second day of the trial, over Joosten’s objection, the court
  granted the prosecution’s motion requesting a jury instruction on
  first degree criminal trespass as a lesser nonincluded offense of
  second degree burglary. At sentencing, the court merged the
  second degree burglary and first degree criminal trespass
  convictions. Because Joosten did not address the propriety of the
  court instructing the jury on a lesser nonincluded offense over his
  objection, we do not address this question. See People v. Skinner,
  825 P.2d 1045, 1047 (Colo. App. 1991) (“[A] lesser non-included
  offense instruction may be given only if the defendant requests it or
  consents to it.”); see Crim. P. 7(e).


                                    4
  is correct, further prosecution may be prohibited by constitutional

  prohibitions against double jeopardy. People v. Marciano, 2014

  COA 92M-2, ¶ 42.

¶ 15   Joosten contends that the prosecution failed to prove beyond a

  reasonable doubt that he (1) relinquished his possessory interest in

  the apartment; (2) knew his invitation to enter the apartment was

  revoked; and (3) knew his entry was unlawful.

¶ 16   “The due process clauses of the United States and Colorado

  Constitutions prohibit the criminal conviction of any person except

  on proof of guilt beyond a reasonable doubt.” Kogan v. People, 756

  P.2d 945, 950 (Colo. 1988), abrogated on other grounds by Erickson

  v. People, 951 P.2d 919 (Colo. 1998). A reviewing court faced with a

  sufficiency challenge must determine whether the evidence, when

  viewed as a whole and in a light most favorable to the prosecution,

  is both substantial and sufficient to support a conclusion by a

  reasonable person that the defendant is guilty of the charge beyond

  a reasonable doubt. Dempsey v. People, 117 P.3d 800, 807 (Colo.

  2005).

¶ 17   In determining whether the evidence is sufficient to sustain a

  conviction, we “must give the prosecution the benefit of every


                                    5
  reasonable inference that might fairly be drawn from the evidence.”

  People v. Duncan, 109 P.3d 1044, 1045-46 (Colo. App. 2004).

  Moreover, “the resolution of inconsistent testimony and

  determination of the credibility of the witnesses are solely within the

  province of the jury.” Id. at 1046.

¶ 18   To support a burglary conviction, a jury must find beyond a

  reasonable doubt that the defendant “knowingly [broke] an entrance

  into, enter[ed] unlawfully in, or remain[ed] unlawfully after a lawful

  or unlawful entry in a building or occupied structure with intent to

  commit therein a crime against another person or property.”

  § 18-4-203(1), C.R.S. 2017. “A person ‘enters unlawfully’ or

  ‘remains unlawfully’ in or upon premises when the person is not

  licensed, invited, or otherwise privileged to do so.” § 18-4-201(3),

  C.R.S. 2017. “In determining whether the crime of burglary has

  been committed, the focus is upon the possessory rights of the

  parties[.]” People v. Hollenbeck, 944 P.2d 537, 538 (Colo. App.

  1996).

¶ 19   Joosten argues that because he previously lived at the

  apartment, still frequently stayed there, and had left some of his




                                     6
  possessions there, he maintained a possessory interest in the

  premises, precluding a conviction for burglary.

¶ 20   More specifically, relying on Hollenbeck, 944 P.2d at 539,

  Joosten argues that he had a possessory interest in the apartment

  because there was no evidence that he and his girlfriend had agreed

  to live separately and that he understood he had relinquished his

  possessory interest. Hollenbeck does not support Joosten’s

  position.

¶ 21   In Hollenbeck, a division of this court recognized that an

  estranged spouse who had previously shared a residence with the

  victim could be convicted of burglarizing the former marital

  residence if the victim was in exclusive possession of the residence

  at the time of the alleged burglary. Id. The division held that,

  absent a restraining order or an order granting one party exclusive

  possession of the marital residence, whether one spouse had the

  sole possessory interest “depends on whether the evidence shows

  that both parties had decided to live separately.” Id.

¶ 22   The Hollenbeck division concluded that there was sufficient

  evidence that the defendant had relinquished his possessory

  interest because (1) he had left the marital residence and taken


                                    7
  most of his belongings; and (2) his wife had changed the locks, filed

  for divorce, and told him he was no longer welcome in the

  residence. Id. at 539-40.

¶ 23   Contrary to Joosten’s argument, Hollenbeck supports our

  conclusion that sufficient evidence supported his burglary

  conviction. Although Joosten continued to stay at the apartment

  “frequently,” like the defendant in Hollenbeck, he had taken many of

  his personal belongings out of the apartment. Id. at 539. The

  evidence established that Joosten always knocked before entering

  the apartment because he did not have keys to the apartment.2 In

  any event, it is undisputed that Joosten gained entry on this

  occasion by kicking down the door. “This method of entry is

  inconsistent with any kind of permissive entry.” People v. Johnson,

  906 P.2d 122, 126 (Colo. 1995). A reasonable juror could easily

  infer that Joosten knew he did not have a possessory interest in the

  apartment when he forcibly entered it.


  2 The roommate testified that Joosten did not have a key to the
  apartment and always knocked before he entered. The girlfriend
  testified that she had changed the locks to the apartment but did
  not remember whether Joosten had keys for the new locks. Joosten
  did not testify.


                                    8
¶ 24   Joosten also separately argues that, even if there was

  sufficient evidence to prove that he did not have a possessory

  interest in the apartment, the evidence demonstrated that his

  girlfriend had consented to his entry because she had invited him to

  pick up his laundry from the apartment.

¶ 25   But the girlfriend testified that she did not remember

  extending this invitation to Joosten. Whether or not there was such

  an invitation was for the jury to determine. “[T]he resolution of

  inconsistent testimony and determination of the credibility of the

  witnesses are solely within the province of the jury.” Duncan, 109

  P.3d at 1046.

¶ 26   Lastly, Joosten argues that the evidence was insufficient to

  show he acted knowingly. This element requires evidence that

  Joosten “subjectively knew that [his] entry into the [apartment] was

  unlawful.” Oram v. People, 255 P.3d 1032, 1038 (Colo. 2011). “An

  actor’s state of mind is normally not subject to direct proof and

  must be inferred from his or her actions and the circumstances

  surrounding the occurrence.” People v. Phillips, 219 P.3d 798, 800

  (Colo. App. 2009). As noted above, a reasonable juror could infer

  that Joosten knew he did not have permission to enter the


                                    9
  apartment when he forcibly entered the premises. See Johnson,

  906 P.2d at 126.

¶ 27    Accordingly, the evidence was sufficient to sustain Joosten’s

  second degree burglary conviction.

  IV.   Criminal Defendants Have the Right to a Theory of the Case
                              Instruction

                          A.    General Principles

¶ 28    In Nunez, 841 P.2d at 264-65, the Colorado Supreme Court

  held that defendants have the right to a theory of the case

  instruction. A theory of the case instruction tendered by a

  defendant must be given if the record contains any evidence to

  support the theory. Id. at 264. “The rationale underlying [this

  right] is the belief that it is for the jury and not the court to

  determine the truth of the defendant’s theory.” Id. at 264-65. A

  trial court has no discretion to refuse a tendered, properly worded

  theory of the case instruction if it is supported by any evidence. Id.

¶ 29    There are two exceptions to this rule. A defendant has no

  right to a theory of the case instruction that misstates the

  applicable law, unduly emphasizes specific facts, or is

  argumentative. People v. Smith, 77 P.3d 751, 756 (Colo. App.



                                      10
  2003). And a theory of the case instruction may properly be refused

  when other instructions adequately convey the defendant’s theory

  of the case. Nunez, 841 P.2d at 265.

¶ 30    When a defendant is entitled to a theory of the case

  instruction but the instruction tendered is defective in some

  manner, the trial court has an affirmative duty to work with defense

  counsel to craft an acceptable instruction. Id.

       B.   Joosten Was Entitled to a Theory of the Case Instruction

¶ 31    Joosten tendered the following theory of the case instruction:

                     Leonard Joosten contends that he is not
              guilty of Second Degree Burglary because he
              entered the apartment under the belief that he
              was invited in and had a privilege to be at the
              apartment. He went to an apartment where he
              stayed at, kept several belongings, and
              possessed a key to allow him to come and go.
              Entry into the apartment under these
              circumstances is not unlawful.
                     Mr. Joosten went to the apartment to get
              his clothes so that he could go to work, as he
              had previously agreed to do with [his
              girlfriend].
                     If you find that Mr. Joosten entered the
              apartment under the mistaken belief that he
              was invited or privileged and/or that he lacked
              the intent to commit the crimes of Assault in
              the Third Degree and Criminal Mischief when
              he entered, you must find Mr. Joosten not
              guilty of Second Degree Burglary.



                                    11
¶ 32   The trial court rejected the instruction on the basis that it

  “simply denied one of the elements of the crime.” And, presumably

  because of that ruling, the court did not work with Joosten’s

  defense counsel to craft an acceptable instruction.3

¶ 33   We reject the trial court’s reasoning that the tendered

  instruction merely denied the elements of the crime. To the

  contrary, we view the tendered instruction as Joosten’s coherent

  theory of why he did not commit the crimes charged because he

  was invited in or had the privilege to enter the apartment.

  Joosten’s theory of the case was that he either had consent to enter

  the premises or that he had been invited to do so. The tendered

  instruction explains the circumstances underlying Joosten’s theory

  of the case. This goes well beyond a simple denial of the elements




  3 Because we conclude that the failure to give the tendered theory of
  the case instruction could not have, under the facts presented,
  impaired Joosten’s right to a fair trial, we do not address whether a
  defendant must, in addition to tendering or requesting a theory of
  the case instruction, also specifically request the trial court to work
  with him to craft an acceptable theory of the case instruction. Or,
  whether absent such a request an appellate court reviews only for
  plain error.


                                    12
  of the burglary charge. The elemental instructions did not address

  the reasons why Joosten claimed that he was not guilty of burglary.

¶ 34   The Attorney General contends that the court’s rejection of

  Joosten’s theory of the case instruction was either proper or

  harmless because the instruction was “embodied in other

  instructions given by the court.” People v. Tippett, 733 P.2d 1183,

  1195 (Colo. 1987); see also People v. Cardenas, 25 P.3d 1258, 1265

  (Colo. App. 2000). This argument founders on the fact that the only

  instruction given by the court on second degree burglary was the

  elemental pattern instruction. “Jury instructions that merely set

  forth the elements of the offense and the burden of proof, without

  more, do not encompass a theory of defense.” Nunez, 841 P.2d at

  266. Thus, Joosten’s theory of the case instruction was not

  “embodied in other instructions given by the court.” Tippett, 733

  P.2d at 1195.

¶ 35   To the extent People v. Marquez-Lopez, 952 P.2d 788, 791

  (Colo. App. 1997), and People in Interest of T.R., 860 P.2d 559, 561

  (Colo. App. 1993), hold otherwise and conclude that elemental

  instructions that do no more than describe the elements of the

  offense can substitute for a defendant’s proposed theory of the case


                                   13
  instruction, we decline to follow them because they conflict with the

  supreme court’s holding in Nunez, 841 P.2d at 264-65. People v.

  Buell, 2017 COA 148, ¶ 17 (a division of the court of appeals is not

  bound by the decisions of other divisions) (cert. granted Apr. 23,

  2018).

¶ 36   While Joosten was entitled to a theory of the case instruction,

  whether the instruction tendered by him was proper in form is a

  closer question. However, given the uncontroverted evidence

  regarding the manner of Joosten’s entry into the apartment, it is

  unnecessary for us to determine whether the tendered instruction

  was unacceptable. Moreover, even if the tendered instruction was

  unacceptable, so long as it, at least in principle, set forth a valid

  theory of the case instruction, the trial court had a duty to work

  with counsel to craft an acceptable instruction. See Nunez, 841

  P.2d at 265.

¶ 37   The Attorney General also claims that theory of the case

  instructions are unnecessary (or the failure to give such an

  instruction is harmless) so long as the defendant is permitted to

  argue the facts and circumstances that underlie the defendant’s

  theory of the case. We reject this argument because it is


                                     14
  inconsistent with Nunez, id., which confers a broad right on

  criminal defendants.

¶ 38   Although courts may “consider whether defense counsel’s

  closing argument fairly represented defendant’s theory to the jury,”

  People v. Dore, 997 P.2d 1214, 1222 (Colo. App. 1999), “arguments

  of counsel cannot substitute for instructions by the court,” Taylor v.

  Kentucky, 436 U.S. 478, 488-89 (1978). See Qwest Servs. Corp. v.

  Blood, 252 P.3d 1071, 1088 (Colo. 2011) (holding that courts

  presume a jury follows a trial court’s instructions, but a jury may

  properly disregard statements made by counsel). Unless and until

  the supreme court overrules or modifies Nunez, both this court and

  the trial courts must apply Nunez as written. Willhite v. Rodriguez-

  Cera, 2012 CO 29, ¶ 9.

                      C.   Reversal is Not Required

¶ 39   While the trial court abused its discretion either in refusing

  the tendered instruction or, if the form of the instruction was

  defective, in failing to work with Joosten’s defense counsel to craft a

  proper theory of the case instruction, that does not end our

  analysis. In People v. Novotny, a case decided after Nunez, the

  supreme court instructed us that “reversal of a criminal conviction


                                    15
  for other than structural error, in the absence of express legislative

  mandate or an appropriate case specific, outcome-determinative

  analysis, can no longer be sustained.” 2014 CO 18, ¶ 27.

¶ 40   A court’s improper rejection of a theory of the case instruction

  is harmless if it does not adversely affect the defendant’s

  substantial rights. People v. Garcia, 28 P.3d 340, 344 (Colo. 2001).

  Put differently, we must ask whether there is a reasonable

  probability that the jury would have found Joosten guilty of second

  degree burglary had the error not occurred. Salcedo v. People, 999

  P.2d 833, 841 (Colo. 2000).

¶ 41   While we reject the Attorney General’s reasons why the trial

  court’s refusal of the tendered instruction (or a reworked

  instruction) was harmless, we also must address the quantum and

  quality of evidence that negated the theory of defense presented in

  Joosten’s tendered instruction. If the evidence was such that no

  reasonable juror would have credited the defense asserted in the

  instruction, Joosten was not harmed by the court’s refusal to give

  the instruction or to work with his counsel to craft an acceptable

  instruction. See People v. Klausner, 74 P.3d 421, 424 (Colo. App.

  2003). While we have not found any Colorado case law applying


                                    16
  Novotny’s outcome-determinative test specifically to the rejection of

  a theory of the case instruction, we perceive no reason that such an

  error is exempt from Novotny’s holding. ¶ 27.

¶ 42   The tendered theory of the case instruction addressed whether

  Joosten knowingly entered the apartment unlawfully, one of the

  elements of the crime of burglary. The evidence was undisputed

  that Joosten gained entry to the apartment by kicking down the

  door. If he had a key to the premises, he did not use it and,

  regardless of whether he was previously invited to pick up his

  laundry, no person present in the apartment opened the door for

  him to give him access. Instead, he used a violent act to gain entry.

¶ 43   This evidence persuades us that no reasonable juror would

  have credited the defenses that he entered the apartment under the

  mistaken belief that he was invited or privileged to do so and that

  he lacked the necessary criminal intent to be convicted of second

  degree burglary. As a result, the error did not substantially

  influence the verdict or the fairness of the trial proceedings and was

  harmless.




                                    17
   V.     The Court Erred in Sentencing Joosten on Two Counts of
                 Class 2 Misdemeanor Criminal Mischief

¶ 44    Finally, we address Joosten’s contention that the mittimus

  incorrectly reflects that the jury convicted him of two counts of

  class 2 misdemeanor criminal mischief. The Attorney General

  concedes error and we agree.

¶ 45    Although, Joosten did not raise this argument at trial,

  “[c]lerical mistakes in judgments, orders, or other parts of the

  record and errors in the record arising from oversight or omission

  may be corrected by the court at any time.” Crim. P. 36.

¶ 46    Joosten was charged with two counts of class 2 misdemeanor

  criminal mischief, but at the jury instruction conference, the court

  stated that “if, in fact, the jury finds the defendant guilty of

  Criminal Mischief, it would be the lowest class of Criminal Mischief,

  which would be the class-three misdemeanor.” Thus, the mittimus

  incorrectly reflects that Joosten was convicted of two counts of class

  2, rather than class 3, misdemeanor criminal mischief. The

  mittimus must be corrected accordingly.




                                     18
                         VI.      Conclusion

¶ 47   The judgment of conviction is affirmed. The case is remanded

  for the correction of the mittimus.

       JUDGE HAWTHORNE and JUDGE MILLER concur.




                                    19
