People v. Wartena
2012 COA 12
Colo. Ct. App.2012Background
- Defendant Wartena and an accomplice used a stolen car to locate a similar truck, stole its license plate and other items, then fled; a bystander followed and alerted police.
- Wartena fired a shotgun at the bystander’s vehicle, injuring him, and a high-speed chase ensued resulting in a fatal SUV crash after the accomplice lost control.
- Defendant and accomplice abandoned the car, hid in a barn, and Wartena wore boots later found to be not his own; police captured them the next day.
- At first trial, Wartena sought acquittal on burglary due to lack of intent to steal at entry; the court denied acquittal and instructed on several lesser nonincluded offenses, which juries found.
- At the second trial, the court refused to give additional lesser nonincluded offense instructions; the jury convicted Wartena of attempted second degree murder and related offenses, while a first-degree murder count was dismissed.
- Wartena appeals the second-degree burglary conviction on the theory that there was insufficient evidence of intent to commit theft at entry, and challenges the court’s handling of lesser nonincluded offense instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Burglary intent element post-1999 amendment | People: amendments overruled Cooper; intent can form after entry | Wartena: intent must exist at entry | Intent may be formed before or after unlawful entry; sufficient evidence supported burglary. |
| Lesser nonincluded offense instructions and due process | Wartena: should have been given requested lesser offenses | People: due process satisfied by existing instructions | Given instructions adequately conveyed defendant’s theory; no due process violation; no need to resolve double jeopardy issue. |
Key Cases Cited
- Cooper v. People, 978 P.2d 1240 (Colo. 1999) (intention at entry not required after amendments; burglary can be formed after entry)
- Oram v. People, 217 P.3d 888 (Colo. App. 2009) (post-amendment intent can be formed before or after unlawful entry)
- Larkins v. People, 109 P.3d 1003 (Colo. App. 2004) (post-amendment interpretation of burglary intent language)
- Fuentes v. People, 258 P.3d 320 (Colo. App. 2011) (discussion of burglary intent; not controlling on statutory interpretation here)
- Oram v. People, 255 P.3d 1082 (Colo. 2011) (affirmed interpretation of amended burglary statute)
- Trujillo v. People, 88 P.3d 642 (Colo. 2004) (lesser nonincludEd offenses instructions adequate to convey defense theory)
- Rivera v. People, 186 Colo. 24, 525 P.2d 481 (Colo. 1974) (due process right to lesser nonincluded offense instruction)
- Skinner v. People, 825 P.2d 1045 (Colo. App. 1991) (lesser nonincluded offense instruction as expression of defense theory)
- Rubio v. People, 222 P.3d 355 (Colo. App. 2009) (standard for entitlement to lesser included/nonincluded offense instructions)