People v. Whiteaker.

2022 COA 84. No. 20CA1339. Double Jeopardy—Fifth Amendment—Presumption of Innocence—Lesser Included Offenses—Jury Instructions.

July 28, 2022

Defendant lived with her husband and his biological daughter (stepdaughter). After defendant and stepdaughter got into an argument, husband told stepdaughter to go to her grandmother’s house. Defendant sent several text messages to grandmother telling her to send stepdaughter home, insulting grandmother, and threatening to call the police. Defendant then drove to grandmother’s house and entered through the unlocked front door. Grandmother told defendant to leave, and a physical confrontation ensued between them. Husband intervened, and while he struggled with defendant, she punched him two or three times. Defendant was convicted of second degree burglary, first degree criminal trespass, third degree assault, and harassment.

On appeal, defendant argued that the trial court violated her right against double jeopardy by not merging her conviction for first degree criminal trespass into her conviction for second degree burglary. However, the Colorado Supreme Court has held that first degree criminal trespass is not a lesser included offense of second degree burglary, so the court did not err.

Defendant also argued that the trial court reversibly erred by denying defense counsel’s request that the jury instructions refer to her by name. She asserted that references to “the defendant” in the instructions violated her right to due process. However, references to “the defendant” in jury instructions do not undermine a defendant’s presumption of innocence, and using the term “the defendant” in jury instructions does not undermine the accused’s right to counsel. Here, the trial court did not abuse its discretion by denying defense counsel’s request because (1) it was not required to grant it, (2) the jury instructions accurately stated the governing law, and (3) three females with defendant’s last name were involved in this case, which could have confused the jury.

Defendant also contended that the trial court violated her right to present a defense by including initial aggressor language in the self-defense instruction and by rejecting her tendered supplemental instruction explaining the term “initial aggressor.” The trial court did not err by providing the jury with the initial aggressor language because the prosecution presented some evidence that defendant was the initial aggressor. Further, defendant’s tendered supplemental instruction did not fit the facts of the case and therefore could have confused the jury. Accordingly, the court’s instructions did not violate defendant’s right to present a defense

The judgment of conviction was affirmed.