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People in the Interest of N.D.O.

2021 COA 100. No. 20CA0214.  Juvenile Delinquency—Violent Juvenile Offender Complicity—Illegal Sentence.

July 22, 2021


N.D.O. was charged with various crimes in connection with his participation as the getaway car driver in armed robberies of four gas stations. The delinquency petition alleged that he was a violent juvenile offender because the robberies involved the use or possession and threatened use of a deadly weapon. At trial, the prosecution did not allege or present evidence that N.D.O. personally entered the gas stations but argued instead that he committed the aggravated robbery offenses as a complicitor. The trial court instructed the jury on the elements of complicitor liability and that it could apply to the aggravated robbery offenses. The court also told the jury, over the prosecution’s objection, that the complicity theory did not apply to the deadly weapon interrogatories. A jury found N.D.O. guilty on all counts but found that he did not use, or possess and threaten the use of, a deadly weapon to commit any offense. The trial court adjudicated N.D.O. delinquent and sentenced him to two years of probation and 45 days of detention.

The prosecution argued on appeal that the trial court erred in instructing the jury on the complicity theory and requested that the court’s instruction be disapproved. A trier of fact may find that a juvenile’s delinquent act constituted a crime of violence under a complicity theory. Here, the trial court incorrectly stated the law by instructing the jury that complicitor liability cannot support a crime of violence finding. Accordingly, the Court of Appeals disapproved the instruction.

N.D.O. argued that the prosecution invited the alleged error by tendering the original complicity instructions without specifying that complicitor liability applied to the deadly weapon interrogatories. This alleged error was not in the original complicity instructions but in the court’s supplemental instruction answering the jury’s question. Because the prosecution objected to that supplemental instruction, it did not invite error.

The prosecution also argued that the trial court’s failure to designate N.D.O. as a violent juvenile offender when he was adjudicated delinquent for an act that constituted a crime of violence resulted in an illegal sentence. However, the general verdicts do not show that the jury necessarily found the use of a deadly weapon, so the verdicts do not establish that N.D.O. was adjudicated for a delinquent act that constituted a crime of violence. Accordingly, the trial court did not impose an illegal sentence.

The ruling was disapproved and the sentence was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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