People v. Rock
2017 CO 84
| Colo. | 2017Background
- Priscilla Rock was charged with second-degree burglary and theft after entering her ex‑boyfriend’s parents’ house through a bedroom window between May 29–31, 2010, and removing several items. She admitted unauthorized entry but testified she sought a memory card and took items as temporary "collateral." The prosecution presented evidence some items were sold or given away.
- The trial judge instructed the jury on burglary and theft but denied Rock’s requested lesser‑included instruction for second‑degree criminal trespass, concluding trespass is not an included offense of burglary and the structure in question was a dwelling rather than a non‑dwelling premises.
- The jury convicted Rock of both second‑degree burglary and theft; Rock appealed. The court of appeals reversed both convictions, holding the trial court erred in denying the trespass instruction and the error was not harmless.
- The People sought certiorari. The Colorado Supreme Court granted review, initially reversed in a June 5 opinion, then granted rehearing and withdrew that opinion before ultimately affirming the court of appeals.
- The Supreme Court held (1) second‑degree criminal trespass can be a lesser included offense of second‑degree burglary under the statutory elements test because one statutory means of trespass (knowingly entering a building) is a subset of burglary’s elements, and (2) the trial court’s refusal to instruct was not harmless given Rock’s concession on unlawful entry and her defense resting on lack of intent to commit a theft inside.
Issues
| Issue | People’s Argument | Rock’s Argument | Held |
|---|---|---|---|
| Whether failure to give a requested lesser‑included instruction is harmless when the jury convicted on the greater offense and another related offense | Error was harmless because guilty verdicts on burglary and theft show no reasonable probability the missing instruction affected outcome | Error was prejudicial because Rock conceded unlawful entry (trespass) but denied intent to commit theft (burglary), so jury could have convicted of trespass instead | Not harmless; reasonable probability the missing trespass instruction affected the burglary conviction and thus both convictions reversed by CO Ct. of Appeals and affirmed by Supreme Court |
| Whether second‑degree trespass is a lesser‑included offense of second‑degree burglary under § 18‑1‑408(5)(a) (statutory elements test) | Trespass is not included because trespass can involve non‑dwelling fenced premises; burglary requires entering a building/occupied structure (dwelling subset) | Trespass is included because one statutory method of trespass (entering a building) is a statutory subset of burglary’s elements | Held included: an offense is included if any statutory means sufficient for conviction is a subset of the greater; because trespass includes entering a building and burglary requires entering a building/occupied structure, trespass can be a lesser included offense |
| Whether a requested lesser instruction may be given when the lesser admits alternative methods of commission not all contained in the greater | Giving such instruction could be improper because lesser contains alternatives not always subset of greater | A particular set of elements (one method) sufficient for the lesser that is necessarily established by the greater suffices for inclusion | Held that inclusion requires that at least one statutory alternative for the lesser is necessarily contained within the greater; not all alternatives must be contained |
Key Cases Cited
- People v. Aragon, 653 P.2d 715 (Colo. 1982) (defendant entitled to lesser offense instruction when rational basis in evidence)
- People v. Rivera, 525 P.2d 431 (Colo. 1974) (statutory elements test for inclusion and discussion of lesser‑offense instructions)
- People v. Garcia, 940 P.2d 357 (Colo. 1997) (prosecution may be entitled to lesser offense instructions under indictment/pleading theory)
- Reyna‑Abarca v. People, 390 P.3d 816 (Colo. 2017) (clarified statutory elements subset test for included offenses)
- People v. Roman, 398 P.3d 134 (Colo. 2017) (erroneous denial of lesser‑included instruction is trial error evaluated for prejudice)
- Brown v. Ohio, 432 U.S. 161 (1977) (double jeopardy principles discussed historically in merger context)
- Missouri v. Hunter, 459 U.S. 359 (1983) (legislative authorization controls permissible multiple convictions)