People v. Joosten, 2018 COA 115

Joosten was convicted of second-degree burglary, first-degree criminal trespass (merged at sentencing), one count of third-degree assault, and two counts of criminal mischief; he appealed only the burglary conviction and a mittimus error.
Facts: Joosten had previously lived with his girlfriend, frequently stayed overnight, and kept some belongings at the apartment; on the morning in question he kicked down the apartment door, struck the roommate, entered the girlfriend’s bedroom, threatened the roommate, and damaged the girlfriend’s property.
Defense to burglary: Joosten argued he had a possessory interest or was invited to enter (to retrieve laundry), so his entry was not unlawful.
Trial court refused Joosten’s tendered theory-of-the-case instruction regarding consent/privilege, reasoning it merely denied an element; the court gave only the elemental burglary instruction.
The Court of Appeals held the trial court erred in refusing (or in failing to work with counsel to craft) a theory-of-the-case instruction under People v. Nunez, but concluded the error was harmless because the undisputed forcible entry (kicking down the door) made the invitation/privilege defense implausible to any reasonable juror.
The mittimus incorrectly listed the criminal mischief convictions as class 2 misdemeanors; the court directed correction to class 3 misdemeanors.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether there was sufficient evidence to convict Joosten of second-degree burglary	Evidence (forcible entry, destroyed property, threats) supports burglary conviction	Joosten retained possessory interest or was invited — so entry was privileged	Held: Evidence sufficient; reasonable juror could infer Joosten relinquished possessory interest and knew entry was unlawful
Whether Joosten was entitled to a jury theory-of-the-case instruction (consent/privilege)	Court: denial harmless or embodied by other instructions	Joosten: Nunez guarantees right to a theory-of-the-case instruction supported by any evidence	Held: Defendant is entitled to such an instruction if supported by evidence; trial court erred in refusing or failing to craft one, but error was harmless here
Whether elemental instructions can substitute for a defendant’s theory-of-the-case instruction	AG: elemental instructions and counsel argument sufficiently conveyed defense	Joosten: elemental instructions do not explain the factual theory; Nunez requires specific instruction	Held: Elemental instructions alone do not substitute for a theory instruction; argument by counsel likewise cannot substitute
Whether mittimus correctly reflects criminal mischief classification	State conceded mittimus correct as entered	Joosten: mittimus misclassified convictions as class 2 rather than class 3 misdemeanors	Held: Mittimus was erroneous; remanded to correct to class 3 misdemeanors

People v. Nunez, 841 P.2d 261 (Colo. 1992) (defendant has right to a theory-of-the-case instruction if any evidence supports it; court must give or help craft a proper instruction)
People v. Tippett, 733 P.2d 1183 (Colo. 1987) (discusses when other instructions may convey a defense)
People v. Johnson, 906 P.2d 122 (Colo. 1995) (forcible entry is inconsistent with permissive entry)
People v. Hollenbeck, 944 P.2d 537 (Colo. App. 1996) (possession/possessory-interest analysis for former residents)
People v. Marquez-Lopez, 952 P.2d 788 (Colo. App. 1997) (court of appeals decision declined to be followed here on the question whether elemental instructions can substitute)
Taylor v. Kentucky, 436 U.S. 478 (1978) (argument of counsel cannot substitute for court instructions)