People v. Herbison

VAN CISE, Judge,

dissenting:

The jury instruction at issue indicated defendant’s general denial of any knowledge of or participation in the crime. The next sentence in the instruction stated: “These are the issues for you to decide but are not evidence.” The majority asserts the inclusion of this sentence constituted reversible error because, in effect, it instructed the jury that her testimony at trial denying knowledge of the crime was not to be considered evidence. I disagree and, therefore, respectfully dissent.

In determining whether a jury has been adequately informed on a defendant’s theory of the case, all of the tendered instructions must be considered together. People v. Tippett, 733 P.2d 1183 (Colo.1987). When the instructions, read as a whole, adequately inform the jury on the law, there is no reversible error. See People v. Olona, 180 Colo. 299, 505 P.2d 372 (1973).

Here, the trial court instructed the jury on the presumption of innocence. It was separately instructed on the essential elements of the crimes charged, and on the prosecution’s burden to prove all elements beyond a reasonable doubt. Furthermore, the jury was instructed to consider all testimony presented at trial.

The substance of defendant’s theory of the case was encompassed in the instructions, and the instructions adequately advised the jurors that they were to consider the defendant’s testimony as evidence. The claimed error, if any, was harmless. I would affirm the judgment of conviction.